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Judgment
Dr. S. M. Kantikar, Member
The two Petitioners have filed the present Revision Petitions against the impugned order dated 08.04.2015 passed in Appeal No. FA/13/213 and FA/13/184 passed by the Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur (hereinafter referred to as the “State Commission”).
For the convenience, the parties herein are referred to as per their original position in the Complaint i.e. Dr. Sunita Verma as the Opposite Party No. 1, Dr. V.K. Dikshit as the Opposite Party No. 2 and New India Insurance Co. Ltd. as the Opposite Party No. 3.
The brief facts of the case are that the Complainant Sangeeta Dubey (for short ‘the patient’) underwent hysterectomy operation in Chhattisgarh Institute of Medical Sciences (CIMS) at Bilaspur on 22.08.2005 and discharged on 31.08.2005. It was performed by Dr. Sunita Verma, the Opposite Party No. 1. The Complainant alleged that after the operation, the patient was passing urine from her vagina, but the patient was discharged without attention and told that it will be cured automatically. On 02.10.2005, the patient again came to the Opposite Party No. 1 with the Complaints of increased flow of urine. The Opposite Party No. 1 inserted a catheter and called her after one week. The Complainant noticed that the urine was not coming from the Catheter and therefore, approached the Opposite Party No. 1 on next day 03.10.2005, who examined her and found urinary examination bladder was damaged and suggested to consult another expert doctor, thereafter, she denied further treatment. The patient approached Dr. S. M. Dubey and then to Dr. D. R. Patle. Lastly, the Complainant contacted the Opposite Party No. 2, Dr. V. K. Dixit, who examined the patient and X-rays and advised 2 nd operation. It was alleged that the Opposite Party No. 2 was not qualified Urologist, but he performed the 2 nd operation “Ureteroneocystostomy”. Due to the negligent act, the Complainant incurred financial loss, physical and mental agony. Being aggrieved a complaint was filed before the District Consumer Forum, Bilaspur.
The District Forum held the Opposite Parties Nos. 1 and 2 liable for deficiency in service and medical negligence. It ordered to pay jointly and severally Rs. 1 lakh towards compensation and Rs. 75,000/- towards financial loss. It was also allowed Rs. 20,000/- for physical and mental agony and Rs. 3,000/- as a cost of litigation.
Being aggrieved, the Complainant filed Appeal No. FA/13/219 for enhancement of the compensation, whereas the Opposite Parties Nos. 1 & 2 filed Appeal No. FA/13/213 & FA/13/184 for setting aside the order of the District Forum.
The State Commission partly allowed the Appeal (FA/13/219) filed by the Complainant and modified the compensation to pay Rs. 75,000/- instead of Rs. 20,000/-for mental agony. The remaining part of the Order of the District Forum remained unaltered. The two Appeals filed by the doctors were dismissed.
Being aggrieved, both the Opposite Parties filed the instant two Revision Petitions.
We have heard the learned Counsel for the Parties. Perused the material on record interalia the Orders of both the fora.
There was huge delay of 484 days in filing the Revision Petition No. 3121 of 2016 by the Petitioner Dr. Sunita Verma. The reasons stated for the delay that the Opposite Party No. 1 wrongly approached the High Court to file Revision against the Order of the State Commission. Thus, the time was spent there. Therefore, to provide fair opportunity to the petitioner and to dispose the matter on merit, the delay is condoned.
On merit, the learned Counsel for Opposite Party No. 1 submitted that Dr. Sunita Verma was MD Gynec, and working in the Government Hospital and the services to all the patients were free. The operation was performed in CIMS and the Opposite Party No. 1 never charged any fees from the Complainant. Therefore, the Complaint was not maintainable against her. The Counsel relied upon the judgment case of Indian Medical Association vs. V.P. Shantha & Ors . [(1995) 6 SCC 651] He further submitted that the post-operative period was uneventful and there was no sign of dribbling of urine, same was mentioned in the discharge card. If there was any problem of dribbling of urine, she could not have discharged from the hospital. The patient came almost after one month, i.e. 02.10.2005 with problem of leakage of urine and unable to control. The Opposite Party No. 1 suspected Vesico Vaginal Fistula (VVF) which was a known complication in hysterectomy surgeries, therefore, she further referred the patient to Dr. D.R. Patle at CIMS, Bilaspur. Therefore, the Complainant was treated by O.P.No.1 as per standard of practice. The Counsel further argued that as per literature, it was a known complication and the incidence of Ureteric injuries is 1 – 4% patients after Hysterectomy.
The learned Counsel for Dr. V. K. Dixit vehemently argued that the doctor was a renowned Surgeon (MS) possesses necessary skills to deal with such repair surgeries with the help of IVP and cystoscopy reports, it was found that there was moderate degree of hydronephrosis and hydroureter on left side. The lower end of ureter was not visible, the ureter was injured and urine was coming from the vaginal vault. It was diagnosed as Uretro Vaginal Fistula (UVF) and performed corrective surgery (Ureteroneocystostomy). According to him, during hysterectomy operation, it resulted into ligation and injuries to ureter and it was a known complication.
We have given our thoughtful consideration to the arguments advanced by both the Parties.
On careful perusal of medical prescriptions revealed the patient consulted the Opposite Party No. 1 at her private clinic on 16.08.2005 wherein after examination, hysterectomy was advised. After the collection of Rs.6000/- and on instruction of Opposite Party No. 1 the patient was admitted in CIMS for surgery. Thus, in our view, it was not a free service; the patient was a Consumer as under section 2(1)(d) of the Act, 1986.
Admittedly, the patient approached the Opposite Party No. 1 on 02.10.2005 and 03.10.2005 for leakage of urine through vagina. She suspected VVF and the patient was referred her to Dr. Patle for further management. But the patient approached Dr. Dixit at UDM Surgical Centre. The Complainant approached the Opposite Party No. 2 on 14.10.2005 along with IVP X-ray done by Dr. Anil Agrawal. It was reported as moderate degree of hydronephrosis and hydroureter on left side; and about 2 to 2.5 cms lower end of ureter was not visible. According to Dr.Dixit the continuous leaking of urine was due to injured lower end of left ureter. He performed cystoscopic examination and found that lower end of left ureter was injured and urine was coming into vagina. He successfully performed repair by ureteroneo-cystostomy with due care and the urinary leakage was completely stopped. On 1.12.2005, Retrograde Left Ureteogram advised by Dr. V. K. Dixit revealed no leakage or any abnormality.
It is evident from the record that though the Opposite Party No. 2 was a General Surgeon, he had sufficient urology work experience from reputed urology centres in India. In the instant case, he correctly diagnosed UVF and treated the urinary leak which was completely stopped. Even after the 2 nd operation, the patient had no complaints of any leak for 6 months. Thereafter, on 31.07.2007, the patient took treatment from urologists Dr. Jayant Kajaskar and Dr. Sadashiv Bhole at Apollo Hospital. The Boariflap reconstruction was performed which was a similar procedure as done by Opposite Party No. 2. Therefore, the treatment done by Dr. Dixit was not faulty but it was as per reasonable standard of practice in Urology. It was an error of the State Commission, which held Opposite Party No. 2 liable because he was not an Urologist but a General surgeon and not qualified to perform ureteroneo- cystostomy. In our considered view the Opposite Party No. 2 treated the patient as per the reasonable standards and therefore medical negligence and deficiency in service cannot be attributed to the Opposite Party No. 2.
On the basis of forgoing discussion, the RP/1648/2015 filed by Dr. V. K. Dixit is allowed and RP/3121/2016, filed by Dr. (Mrs.) Sunita Verma is dismissed. It is pertinent to note that the incident occurred in 2007 ; we are now in 2021, thus in the ends of justice the Opposite Party No. 1 - Dr. (Mrs.) Sunita Verma is directed to pay lump-sum compensation of Rs. 3,00,000/- to the Complainant within 6 weeks from today, failing which it shall carry interest @ 7% per annum till its realisation. The Opposite Party No. 3 - Insurance Co. shall be liable as per their terms, if it has covered the Opposite Party No. 1 for Professional Indemnity.
The Revision Petitions are accordingly disposed of.
However, there shall be no order as to costs.