BHAGWAN DASS ARORA vs ASHOK SINGAL

THE complainant Bhagwan Dass Arora claims Rs. 8 lacs as compensation against the opposite party Dr. Ashok Singal alongwith Rs. 5,000/- as costs of litigation on account of negligent act of the opposite party in the matter of diagnosis and performing operation on Shanta Rani wife of the complainant, who ultimately died. THE operation was conducted by Dr. Ashok Singal on March 19, 1997 after receiving his fee and charges as demanded. Indoor ticket issued by the opposite party being Annexures C1 and C1/A. Shanta Rani was complaining of pain towards the right hand side of her abdomen. She consulted Dr. (Mrs.) B.K. Dhaliwal of Moga, who after conducting certain preliminary tests/ investigations referred her to Dr. P.N. Mahajan vide reference slip Annexure C2. Dr. Mahajan advised certain tests including X-ray and ultrasound, which was got done from Dr. Raghu Raj Chathley, reports being Annexures, C3 and C4/1. On the basis of such reports, Dr. Mahajan referred the patient to Dr. Kim of C.M.C., Ludhiana vide his reference slip Annexure C5. Instead of going to C.M.C., Ludhiana, Dr. Ashok Singal of Singla Nursing Home was consulted for second opinion. He got a X-ray test done at his clinic i.e. Shivalla Ultrascan Diagnostic Centre, Moga. Annexure C6 is the report. Other reports being Annexures C7 to C9. Prescription slips of Dr. Ashok Singla advising X-ray being Annexure C1/A. After getting such investigation, X-ray and ultrasound, Dr. Singla diagnosed a case of Tumour (Rasoli) and he advised its removal. It was stated that if operation was not performed, the other kidney would be involved. To him all the earlier reports of investigation conducted were shown. Inspite of earlier investigation, he got done the tests referred to above again in order to extort money. THE complainant agreed for the operation as suggested by Dr. Singal and got his wife admitted in his Nursing Home on March 19,1997 at about 11 a.m. in Room No. 8 (private ward). At that stage no indication was given by the opposite party that it was a case of malignant renal tumour calcules rather it was stated that it was a simple "Rasoli" and would be removed without any danger to life. On that very day, operation was performed at about 6.30 p.m. which was not proper time for such an operation as in case of emergency no proper medical help of any expert could be made available. After the operation, the complainant was informed that the Rasoli had been removed. However the life of the patient was in danger since there was profuse bleeding, which was not being stopped. THE opposite party at that time knew about his negligent act in the matter of performing operation that he had closed the abdomen without stitching (with packing) and advised the complainant to remove the patient to C.M.C., Ludhiana immediately. He did not co-operate and make any arrangement. It was at about 10.15 p.m. a vehicle was arranged to take the patient to C.M.C. On way to C.M.C. the patient died. On March 21, 1997 she was cremated. Ex. C10 is the death certificate. On March 22, 1997 her ashes and remains were collected. A scissor type object was found. It was suspected that the same was left in the abdomen negligently by the opposite party. An F.I.R. was lodged with the police which was subsequently cancelled by the Judicial Magistrate stating that such object was a clamp and not scissors. THE report of the tumor removed was concealed by the opposite party from the complainant knowingly that the report indicated malignancy of the tumor found in the kidney. Thus alleging negligence as stated above, the complaint was filed. It was mentioned that deceased left behind 5 children, Charanjiv aged 18 years, Raman Kumar aged 14 years, both of them are students, Naresh Kumari daughter, married, Indu aged 22 years, unmarried and Sonia aged 21 years unmarried. On account of death Sonia had to leave her studies. Shanta Rani was a working lady and employed with M/s. Sham Sunder and Company. Her annual income was about Rs. 40,000/-. THE family was put to financial constraints on account of her death. THE details of Rs. 8 lacs claimed were given in the complaint. Dr. Ashok Singla, the opposite party contested the complaint while submitting its written version. Preliminary objections were taken. THE complaint was not maintainable as it was filed with the ulterior motive of extracting money. It was filed on the basis of compulsion and coercion. THE complaint was filed in order to harass and torture the opposite party. Reference was made to the First Information Report lodged with the police and opinion of various medical experts, which were considered by the Court. It was found by the Court that the opposite party was not negligent in performing his duties as General Surgeon. THE complainant did not approach the Commission with clean hand. He concealed material information regarding qualification and experience of the opposite party and that regarding expert opinion already taken and the judgment of the Court dropping the case on the F.I.R. THE operation notes Annexure R6, opinion of the District Attorney Annexure R7, opinion of Superintendent of Police Annexure R8 and copy of the judgment of the Sub-Divisional Judicial Magistrate, Moga Annexure R9 were submitted. THEre was no deficiency in rendering service on the part of the opposite party. Reference was made to several cases. As per indoor ticket Annexures R10/A to R10/Z giving details of admission and discharge of patients on whom the opposite party had performed operation from May, 1998 to October, 1993 (26 instances). THE entire diagnosis made, and the treatment suggested was disclosed to the complainant and after getting consent in writing the operation was performed after taking every possible care. On merits, in detail the investigations conducted and the operations performed were mentioned.

THE complainant produced his own affidavit and affidavits of Baldev Raj cousin, Avtar Singh, Sanjiv Kumar and Parshotam Singh. Reliance was placed on the investigating reports, operation notes and reference chits. On the other hand Dr. Ashok Singla produced his own affidavit and affidavits of Ranjit Singh, Amarjit Singh and Prem Kumari were produced. Learned Counsel for the complainant has argued that it was an obvious case of negligence on the part of the opposite party that without pre-operational precautions or investigations having been conducted, straightaway on the day of the admission Dr. Singla performed the surgery. No proper arrangements were made for the requisite blood supply before starting the operation. Whatever quantity of the blood was asked for was arranged by the complainant. There were no proper facilities available at the clinic of the opposite party. The staff employed by the opposite party was inexperienced and unqualified. In case bleeding was not being stopped, the opposite party should have called for help of other doctors available in the town. Even while referring the patient to C.M.C. the opposite party did not accompany nor deputed any qualified person. On the other hand learned Counsel for the opposite party has argued that the complainant concealed material facts from the Commission. Before the patient was examined by the opposite party she had taken opinion of other medical experts, who had suggested surgery. The material was enough available at the time of admission to opine the nature of the tumor found in the kidney, which necessitated surgery which was accordingly performed. It was unfortunate that the bleeding was not being controlled that the patient had to be ultimately referred to the C.M.C. after closing the wound as stated above. There was no negligence on the part of the opposite party. The criminal case having failed, the present complaint was an effort to extract money from the opposite party. Even otherwise it is argued that in the absence of any medical expert opinion, no finding of negligence can be recorded against the opposite party.

Learned Counsel for the complainant referred to the decision of the National Commission in Mumbai Grahak Panchayat v. Dr. (Mrs.) Rashmi B. Fadnavis, I (1998) CPJ 49 (NC), Spring Meadows Hospital v. Harjol Ahluwalia, I (1998) CPJ 1 (SC); Dr. S.N. Namboodiri v. Haneefa, I (1998) CPJ 389, of the Kerala State Commission; K.N. Lal v. R.K. Akhaury, III (1997) CPJ 112; Master P.M. Ashwin v. Manipal Hospital, I (1997) CPJ 238, and Poonam Verma v. Ashwin Patel & Ors., II (1996) CPJ 1 (SC). On the other hand learned Counsel for the opposite party has referred to the decision of the Supreme Court in Indian Medical Association v. V.P. Shantha, III (1995) CPJ 1 (SC), and some other cases. The ratio of the aforesaid cases is that in case of apparent cases of negligence, the FORA can conveniently adjudicate upon the cause and grant compensation. Such apparent cases are described as obvious cases, in some of the judgments which can be found on the basis of facts asserted. In such like cases, it is not necessary that to record a finding of negligence there could be evidence of medical expert. Some such examples are recorded in the judgment of the Supreme Court in Indian Medical Association''s case referred to above. Thus it is not considered necessary to refer to in details the previous cases and the facts involved therein. The Supreme Court in Indian Medical Association''s case in para 37 laid down as under : "It is no doubt true that sometimes complicated questions regarding recording of evidence of expert may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical service by a medical practitioner; but this would not be so in all the complaints about deficiency in rendering services by medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong patient or giving injection of a drug to which the patient is allergic without looking into the Out-patient card containing the warning (as in Chin Keow v. Government of Malaysia, 1967 ACJ 279 (PC England), or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief."

THE contention of learned Counsel for the complainant that since the opposite party did not conduct proper investigations in order to find out malignancy of the tumor found, it was not desirable for going for operation and this fact per se amounts to negligent act. Coupled with the above fact, it is further stated that the time chosen for operation was not appropriate as in the evening expert doctors are not available. Services of a Government doctor were obtained for administering anaesthesia, which was against the model code. No expert was called for finding non-stoppage of the bleeding after the operation. Rather the bleeding occurred on account of negligent act. Leaving of the clamp within by closing the wound was also stated to be negligent act. After due consideration of these arguments, we are of the view that no such case of negligence is made out apparently that this Commission could straightaway look into the question of grant of compensation. At the out-set it may be stated that the present case cannot be considered to be prima facie case of negligence. It was required of the complainant to produce medical expert evidence in order to succeed in the case. No such expert was produced. On the other hand, Annexure R4 is the opinion of Dr. Majhail Singh, who approved the treatment given to the patient by Dr. Ashok Singla. Further details or discussion on Annexure R4 is not considered necessary for the simple reason that the aforesaid report was relied upon by Sub Divisional Judicial Magistrate, Moga in his order Annexure R9 while dismissing the criminal proceedings against Dr. Ashok Singla. We are conscious of the fact that judgment of the criminal case may not as such be binding on the Civil Court but at this stage suffice it to say that the judgment of the criminal case was made on the basis of Annexure R4 and other reports of the police agency and the District Attorney. As far as report Annexure R4 of the doctor is concerned that can independently be taken into consideration while deciding the present case. When no opportunity was sought for cross- examining the doctor, who has submitted his report Annexure R4, it was not necessary for the opposite parties to produce the doctor as a witness who had given the aforesaid report and the same goes unchallenged.

THE contention that pre-operational tests were not performed by Dr. Ashok Singla before conducting the operation is not without any merit. Contradictory stand has been taken by the complainant in the complaint. Firstly that in order to extract money, the complainant got repeated the tests already conducted and other stand is that such tests including the test to determine malignancy of the tumor found should have been got done again. Be that as it may, it is not a case where the complainant had not consulted other doctors about the ailment and the necessary treatment required that his stand could be accepted that Dr. Ashok Singla suddenly on the day of admission performed the operation. Before Dr. Ashok Singla was consulted earlier the patient was taken to another doctor who also advised surgery. It was on February 11,1997 that Dr. Singla after having gone through the previous test reports and fresh tests held observed that the patient had renal tumor with a stone on the right side and her left kidney was normal. He had advised surgery for the tumor as per O.P.D. slip of that day. It was thereafter that the patient was taken to Dr. Inderjit Singh Ahuja of Ludhiana, who vide his O.P.D. slip dated March 17, 1997 Annexure Rl/B had also advised surgery. It was finally on March 17, 1997 that the patient reported to Dr. Singla for the surgery which was done. Annexure R2 is the consent for the operation given by the patient when all the expected complications of the surgery were informed as per the stand of the opposite party. It was clearly mentioned therein that the nature of the operation was stated to be "R" renal tumor. Annexure R1/B is the report of annexure Ahuja Nursing Home and Annexure R1/A is report of Dr. Mahajan dated February 7, 1997, which reveals that it was a case of malignant neoplasm lower (R) kidney. Thus it was known to Dr. Singla as well as to the complainant that the patient was having malignant tumor in the kidney. In this view of the matter, it was not necessary that before operation biopsy should have been done when from other tests conducted the nature of the tumor was known and confirmed. It has been argued that medical experts were not available and the operation should have been done during day time. This contention is devoid of merits. According to the stand of the opposite party, Dr. Singla, the only expert Anaesthesist available was Government doctor who was to be available after office hours. At this stage it may be observed as to whether Dr. B.L. Arora committed any service misconduct in providing facility of anaesthesia at the private clinic is out side the scope of the present proceedings. The factum that he was an expert in the town of Moga for performing anaesthesia even to private nursing home and he administered anaesthesia to the patient, per se cannot be treated as a negligent act on the part of the opposite party. Furthermore it is not on account of administration of anaesthesia that any complication has arisen in the present case. The occurrence of bleeding is a normal complication of surgery unless the veins or artery independently or negligently cut than the other organs involved. When tumor in the kidney was to be removed obviously it was to be separated and if in that process bleeding had started, the question for consideration is as to whether necessary steps to stop the same were taken or not. It is an admitted case that forceps and pads were used in order to stop the bleeding. It is also admitted that two units of blood were also transfused. It was not in the hands of the doctors that when the condition of the patient had deteriorated inspite of best efforts as stated having been made that it was considered necessary, after consultation with the Physician available to refer the patient to C.M.C. The patient should only be referred as and when he is capable of being sent through a vehicle. Sometime was taken to stabilize the patient, who was earlier under the influence of anaesthesia. It was then that patient was sent to C.M.C. But unfortunately the patient died on the way.

THERE is no merit in the contention of Counsel for the complainant that nobody was accompanying the patient while she was being referred to C.M.C. whereas on the other hand the affidavit of Dr. Ashok Singla is that he has sent his Assistant alongwith I.V. arrangement with the patient to C.M.C. We find no ground to discard the story of the doctor in this respect.

NO doubt when death occurs inspite of the best efforts of the doctors, emotions become high and right or wrong advice is given for taking action against the doctors. In the present case on such advice having been given criminal proceedings were started against Dr. Ashok Singla on the basis of discovery of a forceps in the remains of deceased in the cremation ground thinking that the same was a scissors used in the operation and negligently left at the time of closing the wound while referring the patient to C.M.C. It is the case of the opposite party that the wound as such could not be closed when attempts were being made to check the bleeding. Applying of the forceps was also one of the methods to stop the bleeding. Since it was not stopping and final decision was taken to send the patient to C.M.C, the wound was not completely closed. Forceps was intentionally left there. In such circumstances when forceps was intentionally left there in order to stop the bleeding, the same cannot be held to be negligent act on the part of the doctor. Even having failed before the Criminal Court as would appear from Annexure R5, the order of Sub-Divisional Judicial Magistrate, the complainant was not satisfied and dragged the opposite party in the litigation that the present complaint was filed. In such circumstances, it is abuse of process of the proceedings under the Consumer Protection Act that the complaint was filed against Dr. Ashok Singla in order to extort money. We are conscious of the fact that since no Court fee is payable, exorbitant amounts are claimed as compensation in the complaints in the hope of getting some money if the proceedings are initiated against the doctors under the Consumer Protection Act. It is high time that such abuse of process of proceedings under the Consumer Protection Act should be stopped and the only way at presently advised is to burden the complainant with compensation-cum-costs of litigation. For the reasons recorded above, while dismissing the complaint, we direct the complainant to pay compensation-cum-costs of litigation of Rs. 15,000/- to Dr. Ashok Singla, the opposite party. Complaint dismissed.