"One Case but 3 Imp Points - 1) Free Treatment in Hospital, but charged in Pvt. OPD, comes within CPA. 2) A Qualified Surgeon can perform urological Surgery. 3) Case took 15 yrs to complete, the patient was paid enhanced compensation. : ROHiT ERANDE ©

"A Doctor  though treating  patient freely in the hospital, but taking fees in the Private OPD, comes within the purview of CPA"

" For botched Hysterectomy, An Obygyan was held liable to pay enhanced compensation considering the time spent in litigation",  

"A General Surgeon with necessary experience who performed Ureteroneo- cystostomy as per the Standard Protocol was absolved even though he was not a qualified Urologist" 

Adv. ROHiT ERANDE ©

 Case Details :

BEFORE : NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 REVISION PETITION NO. 3121 OF 2016

(Against the Order dated 08/04/2015 in Appeal No. 219/2013 of the State Commission Chhattisgarh)

DR. SUNITA VERMA V/s.  1. SANGEETA DUBEY & 2. DR. V.K. DIXIT(M.S.) & 3. NEW INDIA ASSURANCE COMPANY LTD.

BEFORE:  

  HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT

  HON'BLE DR. S.M. KANTIKAR,MEMBER

Judgement Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FRP%2F3121%2F2016&dtofhearing=2022-03-15

Facts in Short :

1.     The brief facts of the case (2006 !) 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 Original Opposite Party No. 1. 

2. 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.  

3. Thereafter the patient approached Dr. S. M. Dubey and then to Dr. D. R. Patle. Lastly, the Complainant contacted the Orig. Opposite Party No. 2, Dr. V. K. Dixit, who examined the patient and X-rays and advised 2nd operation. It was alleged that the Opposite Party No. 2 was not qualified Urologist, but he performed the 2nd 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.

4.     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.

5.     Being aggrieved, the Complainant filed Appeal  for enhancement of the compensation, whereas the Opposite Parties also filed appeals  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  -Doctors filed the instant two Revision Petitions.

Defense of Doctors :

1. It was contended 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]  

2. 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. It was suspected case of 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. It was further contended that as per literature, it was a known complication and the incidence of Ureteric injuries is 1 – 4% patients after Hysterectomy.

3. On behalf of  Dr. V. K. Dixit it was vehemently argued that the he was a renowned Surgeon (MS) possesses necessary skills to deal with such repair surgeries with the help of IVP. As 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.

Held : 

1.    On careful perusal of medical prescriptions revealed the patient consulted the Opposite Party No. 1 at her private clinic 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. 

2.    It was held that 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 2nd 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. 

3. The Boariflap reconstruction was performed which was a similar procedure as done by Opposite Party No. 2. Therefore, it was held that the treatment done by Dr. Dixit was not faulty but it was as per reasonable standard of practice in Urology.  

4. It was held that  the State Commission erred in holding  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

5. On this discussion,  the Revision filed by Dr. V. K. Dixit is allowed and  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, the Gynecologists  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. Ultimately the Insurance company was directed to bear the compensation, subject to the terms of the Professional Indemnity Policy.  

One Case, but 3 important points. Whether CPA is applicable to Doctors and what is Free of Cost Service and what is not, has become the debatable issues in these days.  Another important aspect is what a General Surgeon can do ?  however, merely the case took 15 yrs, the sole liability for delay cannot be fastened on the Doctor.   

Thanks and Regards,

Adv. ROHiT ERANDE ©