MANMOHAN KAUR Vs. FORTIS HOSPITAL AND 2 ORS.

JUDGEMENT

(1.) The challenge in this First Appeal, under section 19 of the Consumer Protection Act, 1986 (for short "the Act"), by the Complainant, is to the order, dated 07.09.2015, passed by the Punjab State Consumer Disputes Redressal Commission at Chandigarh (for short "the State Commission"), in Consumer Complaint No. 58 of 2013. By the impugned order, the State Commission has dismissed the Complaint, holding that there was no inter-alia, negligence on the part of Respondent No. 2/Opposite Party No. 3 in the Complaint, while performing colonoscopy procedure on the Complainant.

(2.) Succinctly put, the facts, giving rise to the present Appeal, as culled out from the Complaint, are as follows: 2. 1 In the month of December, 2006, the Complainant, a lady, aged about 55 years, started having stomach pain and disorder in the digestive system (irritation in the stomach/food pipe). She consulted one Dr. Neeraj Nagpal at Hope Gastrointestinal Diagnostic Clinic, Chandigarh. Treatment continued between the period from February, 2007 and April, 2008. Since, she did not get complete relief, she went to M/s Fortis City Centre, Sector-9, Chandigarh, Opposite Party No. 2 in the Complaint and consulted Dr. Arvind Sahni (for short "the Treating Doctor"), Opposite Party No. 3, in the Complaint, in the month of May, 2008. Even though the Complainant took treatment for about nine months and underwent several diagnostic tests, including Gastroscopy, she did not get complete relief. Then, she consulted another Specialist, Dr. Sandeep Dhavan at Dhavan's Jeevandeep Nursing Home at Chandigarh, where also she was subjected to several tests, including Video UGI Endoscopy on 29.07.2011 and 03.03.2012. Still she did not get complete relief. 2. 2 On 16.05.2012 the Complainant again consulted the Treating Doctor, who advised her to undergo various tests from time to time, including blood tests, Histopathology, Endoscopy, Barium tests, food allergy tests. On 20.06.2012, the Treating Doctor advised her full length colonoscopy to rule out colonic malignancy or colitis. MRCP was done on 21.06.2012. According to the Complainant, though she was reluctant to undergo colonoscopy as it was an invasive procedure, performed with the help of a Colonoscope through the anus, but on the assurance of the Treating Doctor that it was a safe procedure and no harm would be caused to her, she agreed for the said test. Colonoscopy procedure was ultimately planned for 04.07.2012. 2. 3 As advised on 02.07.2012, the Complainant took Peglec powder on 03.07.2012, to clean the colon. Colonoscopy procedure was conducted on 04.07.2012 by the Treating Doctor. According to the Complainant, on insertion of colono scope, she felt severe pain and requested the Treating doctor to discontinue the procedure. However, it was stopped, which resulted in perforation in the colon, resulting in deterioration in her condition. Her abdomen swelled like a football; there was acute pain; and she became unconscious, necessitating her transfer to the ICU. She was put on oxygen and other devices/life-saving drugs. 2. 4 The Treating Doctor informed the family members of the Complainant that it was a case of pneumoperitoneum, which required Exploratory Laparotomy in order to save her life. The said operation was conducted in emergency by Dr. J.D. Wig, a Surgeon, Opposite Party No. 4 in the Complaint. As per the operation notes the pain/distension in the abdomen was felt by the Complainant immediately after the Colonoscopy procedure: on opening of the abdomen, a perforation of the size 0.5 x 1.0 c.m. was noticed in the sigmoid colon, resulting in pneumoperitoneum (collection of air in peritoneal cavity), which was sealed by performing the said surgical procedure. Before the procedure, she was asked to deposit a sum of Rs. 1,30,000/-. The Complainant remained admitted in the hospital for 5 days. Some further amounts were charged at the time of discharge, which the Complainant claims to have paid under protest. 2. 5 In the said background, alleging medical negligence on the part of the Treating Doctor on account of: (i) in taking due precautions while performing colonoscopy on 04.07.2012, by use of force while inserting the colonoscope; (ii) abandoning it when she complained of acute pain; (iii) prescribing unnecessary investigations, like abdomen CT, bone mineral density etc. in order to make money; (iv) the test reports as well as the prescription slips did correlate with each other; (v) charging excess amounts by Fortis Hospital, Opposite Party No. 2, (for short "the Hospital") under several heads, (v) the Complainant was still under treatment and was unable to lead normal life, inasmuch as she was unable to walk properly and take proper food: her capacity to work had also decreased, and she had become dependent on others, the afore-noted Complaint came to be filed before the State Commission. The Complainant prayed for a direction to the Opposite Parties, to pay to her, jointly and severally a total compensation of Rs. 51,73,565/- under different heads, along with interest @ 18% p.a. from the date when Colonoscopy was done i.e. 04.07.2012, till realization, as also a sum of Rs. 25,000/- towards litigation costs.

(3.) Upon notice, all the Opposite Parties contested the Complaint. The allegations in the Complaint were contested by all the Opposite Parties. A common Written Version was filed on behalf of the Hospital and Dr. J.D. Wig. The Treating Doctor, Dr. Arvind Sahni, filed his separate Written Version. No Written Version was, however, filed on behalf of Escorts Heart Institute and Research Centre, New Delhi/Opposite Party No. 1. Instead, an application for deletion of its name from the array of parties, was filed but the same was never pressed. Nevertheless, in these proceedings, on the oral prayer made on behalf of the Complainant, vide order dated 12.05.2016, the said hospital was deleted from the array of parties name.