YASH PAL GANDOTRA Vs. RENU GUPTA

JUDGEMENT

(1.) Both these appeals have been filed against the order dated 7-7-2015, passed by the State Consumer Disputes Redressal Commission, Jammu (hereinafter referred to as 'the Commission') by which the claim of the claimant, namely, Smt. Renu Gupta has been allowed and a sum of Rs. 4,35,000.00 has been awarded as compensation to her on account of negligence by appellant in CIMA No. 202/2015, while performing the operation. Being aggrieved by the aforesaid order, the appellant Dr. Yash Pal Gandotra has filed CIMA No. 202/2015, whereas the claimant, namely, Smt. Renu Gupta has filed the cross appeal for enhancement of the amount of compensation. Since, common questions of law and facts arise for consideration in both the aforesaid appeals, they were heard analogously and are being decided by this common order. For the facility of reference, facts from CIMA No. 202/2015 are being referred to.

(2.) The respondent No. 1 approached the respondent No. 2 in the month of May, 2000 to get the stones in gallbladder removed by Laparoscopic surgery in which body is not cut open and person can resume his/her normal activities within two-three days. It was pleaded in the petition filed before the Commission that the respondent No. 2 further claimed that the appellant who is a visiting doctor is an expert in Laparoscopic surgery and has vast experience, special skills and knowledge in the filed of Laparoscopic surgery. Relying on the advice tendered by the respondent No. 2, the respondent No. 1 got herself admitted in the hospital of respondent No. 2 on 20-6-2000, for removal of gall bladder through Laparoscopic surgery. It was further pleaded in the claimant that instead of performing Laparoscopic surgery for the reasons unknown to the respondent No. 1 and her family members, the cut was administered to the respondent No. 1 and open surgery was performed and the gall bladder was removed. It was also averred in the complaint that neither the respondent No. 1 nor her family members were informed about the complications of the normal surgery and the fact that open surgery has been performed instead of Laparoscopic surgery. It was also averred that some equipments and medicines were brought by the family members of the complainant on the request of the doctor attending the operation. It was stated in paragraph 3 of the report that all tests conducted before and after the operation were retained by the respondent No. After the operation, the respondent No. 1 was discharged from the hospital on 27-6-2000 and drain pipe remained attached with the respondent No. 1 up to two-three months after the operation. Thereupon the respondent No. 1 again contacted the appellant to ascertain why drain pipe is not being removed, however, the appellant did not give any specific reply and kept on giving ten days time for removing the drain pipe and extended the period several times till three months and ultimately called the respondent No. 1 to his clinic at Pathankot to remove the drain pipe in the month of Oct., 2000.

(3.) When the respondent No. 1 went to Pathankot to remove the drain pipe, the appellant suggested the Clingrogram Test which was got conducted by one person at Pathankot. However, the report of the aforesaid test was never handed over to the respondent No. 1. In sometime in the month of July, 2001, the respondent No. 1 suffered acute jaundice and while undergoing different tests, the respondent No. 1 came to know that damage to Common Bile Duct has been caused by the appellant while performing the Laparoscopic surgery which was converted to open surgery. The aforesaid fact was pleaded by the respondent No. 1 in paragraph 5 of the complaint in the specific terms which was filed before the Commission. On 20-9-2001, the respondent No. 1 went to New Delhi for conducting MRI and MRCP Tests which facility was not available in Jammu and the aforesaid tests were conducted upon the respondent No. 1 in Delhi on 23-9-2001. When the report of the aforesaid test was shown to the doctors, the doctors advised another surgery. In order to avoid surgery, the respondent No. 1 consulted some more doctors who advised more tests and the respondent No. 1 after consultations with the Endoscopist of Indraprastha Apollo Hospital decided to get damaged operation rectified by Stenting and went to New Delhi and got herself admitted in the Apollo Hospital, New Delhi on 12-10-2001 and stenting was attempted by the doctor. However, the Guide wire could not negotiate the stricture, so the stent could not be placed in the damaged region. Thereupon, ERCP was conducted in which it was found that Common Bile Duct was normal but there was complete block close to cystic duct opening. After discharge from the Indraprasha Hospital, the respondent No. 1 again contacted Dr. Subash Abrol, Government Medical Hospital, Gandhi Nagar, Jammu who advised Heptatojejunostomy and referred the case to Dr. Adarsh Choudhary, G B Pant Hospital, New Delhi. The respondent No. 1 got herself admitted in G B Pant Hospital, on 27-10-2001 and was operated on 5-11-2001 and was discharged on 12-11-2001.