Smt. Bala Devi (a patient herein) was suffering from abdominal pain, backache and menstrual problems. She consulted Dr. Ajay Aggarwal, the OP-2, who, after thorough investigations, diagnosed it as Cystic mass in the pelvic cavity of patient. She got admitted in Noida Medicare Centre Ltd. (OP-1) on 18.9.2006. Dr. Ajay Aggarwal (OP-2) and Dr. Meenakshi A.N.(OP-3) assured the patient that it will be a small operation for removal of cyst only and it will cost only Rs.40,000/- to Rs.50,000/- The OP-3 performed operation on 21.9.2006, but resulted into the intestinal injury which was not noticed by OP-3. Therefore, patient had developed abdominal distension and could not pass flatus and stools. Subsequently, the patient was operated for the second time, again, on 30.9.2006 and 16.10.2006. The complainant alleged that, OP-2 and 3 concealed the serious condition of patient from relatives, and refused to discharge her or to take second opinion or referral to some other hospital. OPs did not issue the entire medical record to the relatives at the time of discharge. The patient was discharged on 26.10.2006, after conducting 3rd exploratory laparotomy operation by OP-3, while keeping several holes with tubes attached to the abdomen. The complainant incurred total expenses of Rs.6,23,000/- plus Rs.1,00,000/- miscellaneous expenses for medicine etc., thereafter, she took treatment at Metro Hospital on 21.2.2007, and incurred further expenses at about Rs.88,000/-. Therefore the complainant alleged that due to negligence of OP-1,2 and 3, she suffered physically, mentally and lost her lifetime earnings. Hence filed a complaint before the District Forum, G.B.Nagar claiming total compensation of Rs. 16 lakhs.
The District Forum allowed the complaint and directed the OPs to refund the amount of Rs.2,40,000/- received from the complainant and pay Rs.1,00,000/- for mental agony, Rs. 1,00,000/- for physical pain and Rs.5,000/- for litigation expenses. The complainant is entitled for 6% simple yearly interest on this amount from the date of complaint.
Aggrieved by the order of District Forum, three First appeals were filed, as FA 174/2011 by Noida Medical Centre(OP-1) and Dr.Ajay Aggrawal (OP-2) and FA 541/2011 by Dr.Meenakshi A.N.(OP-3) for dismissal of complaint whereas FA 99/2011 was filed by Complainant for enhancement of compensation.
The State Commission by its order dated 30.09.2014 exonerated Dr.Ajay Aggarwal (OP-3) from the liability and dismissed the appeals filed by both the parties. Aggrieved by the impugned order, three revision petitions arose.
The counsel for complainant reiterated the facts mentioned in the complaint, that the OP 2 and 3 misguided and concealed the serious condition of the patient from her husband and relatives. Therefore, the OP 3 again operated the patient on 30.9.2006 for laparotomy, drainage of right and left pancreatic gutter and pelvic abscess. She developed peritonitis and for third time was operated for exploratory laparotomy with ileostomy terminal mucus fistula operated by OP 3 on 16.10.2006, and put several drains in her body. Thus, it was a clear case of medical negligence wherein, the patient underwent multiple operation, suffered for long time and finally took treatment at Metro Hospital.
The court perused the medical records and evidence on file adduced by the parties before the District Forum. The evidence of Dr. Meenakshi A. N. showed that, her qualification was M.B.B.S., M.S. having ample experience. Since the complainant had a previous history of hysterectomy, there were extensive hypochondrial-omental adhesions. Thus, adhesinolysis was carried out by surgical approach through the previous scar. The sigmoid colon was adherent to the cyst wall which was separated and the cyst was removed without any complication. The complainant was comfortable and surgery was uneventful. Patient was under regular follow-up under OP-3, till 27.9.2006, she was passing flatus and stool, X-ray showed only few loops, no fluid levels, no gas under the diaphragm. Ultrasound showed small collection in the left and right iliac fossa, which was expected after cyst removal from the left side and right fossa collection, was thought to be due to continuing paralytic ileus. From 4.10.2006 she started taking orally and gradually increased in oral intake. She was also given blood transfusion on 30.9.2006 and 1.10.2006 in addition to parenteral nutrition. On 10.10.2006 she had abdomen pain and vomiting. She was examined by the team of doctors and repeat CECT was advised. The report of which showed some collection in left and right paracolic gutters in spite of the drains draining into the bottle in moderate quantity. The OP-1 Noida Medicare Centre called the Gastroenterology Surgeon for his opinion, who suggested exploratory Laparotomy surgery, which was carried out by a team of doctors, with all adequate supportive measures on the same day. Exploration with great difficulty revealed a perforation at the ileocaecal junction which was closed and terminal proximal ileostomy and mucous fistula was created. She was kept on ventilator. The patient gradually improved and was discharged on 26.10.2006 with advise for follow up in OPD, but she never came back for follow up.
As a matter of fact, the complainant kept his bills unpaid. The OP discharged the patient on 26.10.2006. The complainant made cheque payments, which were dishonored. Therefore, the OP 1 filed a case against the complainant under Section 138 of the Negotiable Instruments Act. Therefore, to counter blast the OP, the complainant filed a case before the District Forum. It is also pertinent to note that the patient approached Metro Hospital for further surgery and made expenditure of Rs.88,000/- but there is no proof as such. It is surprising to note, that the complainant was discharged on 26.10.2006 from OP 1/hospital. If the complainant was indeed left in a serious condition with ‘holes in her intestines’ at the time of discharge on 26.10.2006, it is difficult to fathom that, how she could have awaited for more than 4 months, in such a condition and approached Metro Hospital, on 20.02. 2007?
In Martin F. D' Souza vs Mohd. Ishfaq case,
47. Simply because a patient has not favorably 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.
49. 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, what to say of the average professional, 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 submissions.
In Achutrao Haribhau Khodwa v. State of Maharashtra [AIR 1996 SC 2377], held that;
"The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
Therefore, on the basis of foregoing discussion, it is concluded that, there was no deficiency in service or any medical negligence committed by OPs. The patient/complainant did not approach the consumer forum with clean hands.
(National Consumer Disputes Redressal Commission, New Delhi, Revision Petition No. 4469 of 2014, Dr. Meenakshi vs. Bala Devi, decided on 1st April 2015)
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