P S JAMWAL & ORS Vs. BEE ENN GENERAL HOSPITAL

JUDGEMENT

(1.) THE complainant Sh. P. S. Jamwal filed this complaint on 06.11.2001 and during its pendency, unfortunately died on 14.12.2009. Vide order dated 23.08.2010, his legal representatives namely, Shanta Jamwal, Bhaskar Jamwal and Aditya Jamwal were substituted as complainants. The allegations made in the complaint are that complainant (deceased) had fallen sick and was advised removal of Gall Bladder as it was causing him discomfort and pain. OP No. 1 had issued advertisement in Daily Newspaper (copy whereof is annexed with the complaint) wherein it was circulated amongst the general public that Gall Bladder Laparoscopic Surgery using latest technology with no skin stitches was to be performed by OP no. 2 in the Hospital of OP No. 1 on the specified dates therein. Package was offered for doing Laparoscopic surgery of Gall Bladder at a cost of Rs. 19,000/ - (operation cost plus stay of 24 hours). The complainant approached OP no. 1 and on the advice of Dr. Yash Pal Gupta Director of the Hospital; initially deposited Rs. 5,000/ - and later on deposit was made of Rs. 13,750/ -for complete operation and stay in the Hospital including cost of all medicines. That on 15.10.2000, the complainant was taken to operation theatre around 10:30 a. m. and was given general Anaesthesia, He was taken out to the patient room around 4:00 p. m. where he remained unconscious for about six hours. Nephew of the complainant told him that when the operation was in progress; OP no. 2 including other Doctors of his team who were assisting the former had resorted to opening of the abdomen in order to carry out the operation. According to him, such type of open surgery by opening his abdomen was not included in the advertisement package and unnecessarily skin stitches were done to his body. That on 30.10.2000, he was discharged from the Hospital of OP No. 1 and Rs. 41,034/ -were charged which excluded the cost of medicines. Initially he was told that only Rs. 19,000/ - would be charged for the complete operation. Because of the operation done in a negligent manner by OP no. 2, the complainant developed incision hernia and in this manner OPs are not only guilty of medical negligence but also carrying the unfair trade and practice. He has claimed an amount of Rs. 41,034/ - as extra charges for his operation. Rs. 5,000/ - as the cost of medicines, Rs. 5,000/ - as cost of blood and a refund of Rs. 22,500/ - which were charged exorbitantly for hospitalization. Rs. 5,000/ -are also claimed, being the advance booking amount which have been deposited by the complainant on the advice of Dr. Yash Pal Gupta on the basis of the investigation reports obtained from GMC, Jammu. For mental agony, pain and suffering as well as for disability caused by the operation, a sum of Rs. 5 lac has also been claimed.

(2.) OP , No. 1 in its written version has raised the preliminary objection to the effect that the complaint is not maintainable as it involves complicated questions of law and facts which cannot be determined in a summary manner. It is also pleaded that OP no. 2 had taken medical indemnity insurance Policy from New India Insurance Company Limited Branch C/I Sector 2, Noi -da, vide Policy No. 46323102, which was effective from 17.03.2000 to 16.03.2001 and during the currency of the insurance policy, the operation was done and complainant requires to be indemnified by the insurer. On facts, it is admitted that advertisement was issued in daily newspaper. That complainant, who was 61 years of age on 09.10.2000 approached OP no. 1 with a desire to undergo Laparoscopic Cholecystectomy by Dr. Arun Prasad (OP no. 2) as per the advertisement and that he had been already investigated in the GMC, Jammu and recommended Laparoscopic surgery in Cholelithisis. He was also suffering from diabetes mellitus hypertension for many years and had been chronic alcoholic. He deposited Rs. 5,000/ - as advance payment and his operation date was fixed for 15.10.2000. Tentative expenditure for the operation was told to him to the extent of Rs. 19,000/ - in case he stayed in an ordinary special room and this amount was not final because that could vary if some other complications would have arisen and patient required special facilities. At the request of the complainant, allotment of deluxe room accommodation was done and the fixed charges of that room were charged from him. He was shifted to the operation theatre at 2:00 p. m. as OP No. 2 had arrived from Delhi to Jammu by Jet Airways Flight at around 1.00 p. m. and reached the hospital at around 1:45 p. m. and after going through the details of all the patients went to the operation theatre between 2:00 p. m. to 2:30 p. m. After the Laparoscopic view, it was found that complainant was suffering from Cholecysto Duodenal Fistula contrary to the ultrasound report of GMC, Jammu. The attendant of the complainant was informed of the complication before procedure for open surgery was started. OP no. 2 and Dr. Romesh Kaul, Surgeon Specialist called Mr. K. S. Jamwal, who was a close relative of the complainant and was already present in the Hospital of OP No. 1. He was informed that the laparoscopic surgery could not be carried out as the complainant was suffering from Cholecysto duodenal fistula and gave him the option whether the complainant wanted open abdominal surgery to be done now or wanted to be done in some other hospital. It was also explained to him that such a procedure of operation would require stay in the hospital for some time more and the complainant had to pay additional amount. Mr. K. S. Jamwal, consulted other relations and friends and requested for the needful surgery and agreed to bear the extra cost. The consent was obtained to this effect vide Annexure 'a' attached with the complaint. That all other patients registered for the day underwent laparoscopic Choley -stectomy as per schedule as they were not suffering from Cholecysto duodenal fistula or any other complications. The negligence has been denied and it is pleaded that his treatment continued in the hospital under the supervision and guidance of OP No. 2, who was daily being consulted on e -mail. The complaint is mis -conceived because after a gap of one year from the date of the operation, an idea had developed to the complainant to file the complaint because when he was discharged he had fully recovered.

(3.) OP no. 2 has taken the similar defence and in addition pleaded that in the event of any proof of medical negligence on his part he had to be indemnified by his insurer, namely, New India Assurance Company. In Para No. 6 of the objections he has given the details as to how the operation was done because of the complications which were found on spot and the averments are reproduced hereunder: -