Dharam Pal vs Oriental Insurance Co. Ltd. & 2 Ors

This revision petition has been filed by the petitioner Dharam Pal against the order dated 03.03.2015 of the State Consumer Disputes Redressal Commission, Haryana, (in short 'the State Commission') passed in First Appeal No.782 of 2013.

Brief facts of the case are that on 25.2.2009, Sh. Dharam Pal, S/o Sh. Sikander Lal, R/o Village Buria took his ailing wife to S.P. Hospital where the respondents Nos.2 and 3 diagnosed the ailment to be a Rasoli in her uterus. On 26.02.2009, the patient was operated upon and was sent back home in the evening the same day. The revisionist had to incur expenses to the tune of more than Rs.10,000/- and Rs.1000/- had to be paid for administration of anesthesia. The patient developed severe pain in the stomach next day and she was again brought to the same hospital. In the ultrasound, perforation of the intestine was revealed. On 28.02.2009, the second surgery was conducted and the patient's condition deteriorated to the extent that she had to be referred to P.G.M. College & Hospital Chandigarh. Accordingly, the patient was taken to P.G.M. College and Hospital on 03.03.2009 and had to undergo another operation this time for perforation. On 04.03.2009, despite the best efforts on the part of the doctors at the P.G.M. College and Hospital, patient Veena Rani, the revisionist's wife expired. On 09.10.2009, the consumer complaint was filed at District Consumer Disputes Redressal Forum Yamuna Nagar, (in short 'the District Forum'). The District Forum after considering all the facts and circumstances of the case vide order dated 30.09.2013, allowed complaint in favour of the revisionist and against the respondents as under:-

"Resultantly, we direct the respondents to pay a sum of Rs.5,00,000/- to the complainant, as discussed above jointly and severally within 60 days from the date of preparation of copy of this order failing which the complainant shall be entitled to recover the same from the respondent jointly and severally alongwith interest at the rate of 9% per annum from the date of filing of the complaint till its realization. In case the respondents fail to comply with the order, the complainant shall be at liberty to initiate action under Section 25 & 27 of the Consumer Protection Act against them. The complaint is decided accordingly. File be consigned to the record room after due compliance."

On 28.10.2013, the respondents, being aggrieved from the aforesaid order passed by the District Forum, filed an appeal before the State Commission, vide FA No.782 of 2013. On 03.03.2015, the State Commission passed an order thereby accepting the appeal filed by the respondents and setting aside the order dated 30.09.2013 passed by the District Forum and thereby dismissing the complaint of the revisionist.

Hence this revision petition.

Heard the learned counsel for the petitioner/complainant as well as for respondent No.1 i.e. Insurance Company. Respondent No.2, the doctor and respondent No.3 hospital did not appear inspite of notice having been served upon them and therefore, they were proceeded ex-parte vide order dated 20.2.2017 of this Commission.

Learned counsel for the petitioner/complainant stated that the first operation was performed by the respondent No.2 in the respondent No.3 hospital for fibroids in the uterus. The patient was discharged on the same day. The patient developed stomach pain and she was again admitted in respondent No.3 hospital. Again an operation was performed for sealing the perforation of the intestine. It was argued that two facts are clear from this sequence of events. The first is that the hospital deliberately discharged the patient on the same day as they must have realised that the operation done for the fibroids has resulted in perforation of intestine due to negligence of the surgeon and secondly that the perforation of the intestine resulted purely during the first operation of the fibroid because there was no such pain before the operation was performed. The District Forum has observed:-

"After going through the case file, we have come to the conclusion that patient Smt. Veena 50 years wife of Sh. Dharampal was brought to S.P. Hospital Jagadhri, with complaints of bleeding from vagina, on 25.02.2009 and was diagnosed with uterine fibroid. After necessary investigation she was operated on the same day and a vaginal hysterectomy (removal of uterus) was done (not on 26.02.2009 as alleged by the complainant) alongwith removal of left ovary and the patient was discharged on 26.02.2009 on the next day. The patient reported back to the hospital on 27.02.2009 with pain and distension of abdomen. On USG (Ultrasound Sonography) it was found that there was free fluid in the abdomen and rupture of intestine. On 28.02.2009 a laparotomy was done by the respondents, intestine was repaired and defunctioning loop colostomy centres for ventilator support. Patient was admitted to G.M.C.H., Sector-32, Chandigarh, on 03.03.2009 with respiratory distress and distension abdomen and was diagnosed as a case of septicaemia, post laparotomy. She was put on antibiotics and ventilator support for dyspnoea. On 04.03.2009 at 6: 00 A.M. patient had sudden cardiac arrest."

It was argued that the hospital was not competent to handle the perforation of the intestine. The hospital still tried to seal the perforation by doing further operation when even wound of the first operation was still new and had not healed. The State Commission has allowed the appeal of the opposite parties and has dismissed the complaint by observing the following:-

"9. The observations made by the District Consumer Forum are based on surmises. The medicine is not an exact science involving precision and every surgical operation involves uncalculated risks and merely because a complication had ensured, it does not mean that the hospital or the doctor was guilty of negligence. A medical practitioner is not expected to achieve success in every case that he treats. The duty of the Doctor like that of other professional men is to exercise reasonable skill and care. The test is the standard of the ordinary skilled man. Mere statement of the complainant does not make it a case of medical negligence in absence of any expert opinion."

The State Commission has relied on C.P. Sreekumar (Dr.) MS (Ortho) V. S. Ramanujam, II (2009) CPJ 48 (SC) = (2009) 7 SCC 130, wherein it is stated that bald statement of the complainant cannot be accepted to reach conclusion that the doctor lacked expertise. The State Commission has further relied upon judgment of Hon'ble Supreme Court in Martin F. D' Souza Vs. Mohd. Ishfaq, I (2009) CPJ 32 (SC), wherein the State Commission has relied on the following portion of the judgment:-

"From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful."

"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission."

"Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse."

Learned counsel argued that in the present case, it is not only the bald allegation made by the complainant about the negligence of the surgeon and the hospital, but this allegation is supported with the fact that while doing the operation for fibroids in uterus the surgeon negligently injured the intestine and perforated the same which is evident by the fact that the complainant suffered severe pain on the next day and in the ultrasound fluid was found to have accumulated in the abdomen and the operation was done for sealing the perforation of intestine. For concealing the mistake done by the surgeon during the first operation, the respondents No.2 &3 discharged the patient on the same day. In these circumstances, the judgments relied by the State Commission are no longer applicable in the facts and circumstances of the present case.

On the other hand, learned counsel for the respondent No.1 Insurance Company stated that though the District Forum has fastened liability jointly and severally on all the opposite parties including the Insurance Company, the role of Insurance Company only comes if the doctor and hospital are found to be guilty and negligent and are directed to compensate the complainant. The State Commission has dismissed the complaint in the appeal filed by the respondents and therefore, the Insurance Company is not liable to pay any payment.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the record. From the facts of the case as observed by the District Forum, it is clear that the patient was discharged on the same day, whereas in an operation like that of removal of fibroids from the uterus generally the patient is to be kept in the hospital for some more time. Even otherwise after an operation of this sort, which is not a minor operation, the doctor and the hospital are required to watch the patient for some reasonable time and the patient is to be discharged only when the condition of the patient is stable. It has been alleged by the opposite parties that the patient was discharged at the instance of her family members, but the same cannot be accepted as the discharge does not indicate that the patient was discharged against the medical advice.

There is no proof filed that the patient was suffering from perforation of intestine prior to the operation of fibroids. Thus, the normal presumption would be that perforation of the intestine has been caused due to negligence of the surgeon during the first operation, which was done for removal of fibroids from the uterus. This is supported by the circumstantial evidence that the patient was discharged on the same day. I agree with the assertion of learned counsel for the petitioner/complainant that the judgments relied upon by the State Commission, are not applicable in the present case as apart from the allegation made in the complaint, there is physical and circumstantial evidence to suspect negligence on the part of the surgeon and hospital.

Based on the above discussion, the revision petition is allowed and the order dated 03.03.2015 passed by the State Commission is set aside and the order dated 30.09.2013 of the District Forum is upheld.