Judgment:
K.C. Gupta, President:
1. This appeal has been directed by opposite party Nos. 3 and 5 Dr. Manoj Sharma and United India Insurance Co. Ltd. against order dated 15.5.2007 passed by Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as District Consumer Forum), vide which complaint of Sh. Kuldeep Mahajan, respondent No. 1 (complainant) was accepted with costs of Rs. 2,100 and he was awarded compensation of Rs. 5.00 lacs against Sri Guru Harkrishan Sahib Hospital Trust, Sohana (respondent No. 2) and Dr. Manoj Sharma appellant No. 1.
2. Briefly stated the facts are that Dr. Manoj Sharma, appellant No. 1 is working with Sri Guru Harkrishan Sahib Charitable Trust, Sohana which provides treatment to the patients on payment.
3. It was next averred that respondent No. 1 Kuldeep Mahajan (complainant) was having pain in his abdomen and feeling difficulty in passing urine and as such he got ultrasound from Aman CT Scan on 29.4.2003 and was informed of some complication. He got another ultrasound from Dr. Sudhir Gupta, Sector 37, Chandigarh on 30.4.2003. Reports of ultrasounds are Annexures C-1 and C-2 . Thereafter, respondent No. 1 approached Sri Guru Harkrishan Sahib Charitable Hospital Trust, Sohana on 30.4.2003 where Dr. Manoj Sharma, appellant attended him and he was diagnosed as case of âLeft Upper Ureteric Calculusâ and further observed about the presence of upper ureteric stone with HDN in left side of kidney and advised removal of stone through laser treatment without open surgery. He was assured that this technique of removing stone without open surgery was hundred percent safe and successful and he would be completely fit after operation. Accordingly, he got himself admitted in the hospital on 1.5.2003 vide admission card No. 1294. URS (outside) was done by the appellant on 2.5.2003 and he remained admitted in hospital till 10.5.2003. During this period, left URS was converted to open Nephrostomy by the appellant No. 1 and he was discharged on 10.5.2003 vide discharge summary slip-Annexure C-3 after he made payment of Rs. 10,000 vide receipt Annexure C-4. Besides it, he had spent Rs. one lac on tests and medicines as advised by the appellant No. 1. Copy of the bills are Annexures C-5 to C-17.
4. It was further averred that due to gross negligence, carelessness and deficiency in service by appellant, URS stone visualised buried, the URS went beyond site of stone impaction. Two guide wires, one inside URS and one outside Urctroscapethere were introduced. While removing the uretroscape, urcher culsed at the site of stone impaction and intersurrepted into the bladder. On cystoscapy uterer was seen inside out lying in the urinary bladder. Immediately exploration was done and it was tried to put back uterer but failed. Thereafter open nephrostomy was done and bladder was closed at the site of left uteric orifice using cadgut. Due to this, there was a serious ureteric injury at site impacted stone followed by ureteric inversion ureterocaly-costomy attempted but failed. The urteric stone could not be removed by the appellant but on being asked by the relatives of respondent No. 1, appellant stated that operation was successful and his condition was satisfactory and he would be alright within a few days. An outer pipe was fixed in his bladder which caused more pain and injury. Although, his condition was precarious on 10.5.2003 yet he was discharged vide discharge summary Annexure C-18. However, he continued taking medicines as advised by the appellant and his condition did not improve and on the other hand deteriorated. He was again admitted in the above said hospital on 18.5.2003 and after carrying many tests, he was discharged on 23.5.2003 vide discharge slip-Annexure C-19, although his condition was critical. Due to negligence of appellant, his kidney had been badly damaged and urine pipe had been injured due to which he suffered acute pain and fever all the time.
5. Alleging deficiency in service, complaint was filed.
6. Appellant and other opposite parties contested the complaint. The appellant filed written statement which was adopted by Sri Guru Harkrishan Charitable Hospital Trust. However, Oriental Insurance Company filed separate written statement. The appellant in written reply admitted certain facts while denied other facts and stated that there was no negligence on his part. OP No. 4 admitted that appellant was covered under insurance policy effective from 26.3.2003 to 25.3.2004 for a sum of Rs. 10 lacs subject to terms and conditions, whose copy is Annexure R-5.
7. Parties adduced their evidence by way of affidavits.
8. After hearing Counsel for the parties, District Consumer Forum vide order dated 15.5.2007 accepted the complaint with costs as stated in the earlier part of the judgment, ordering payment of compensation of Rs. 5.00 lacs against the appellant as well as Sri Guru Harkrishan Charitable Hospital Trust jointly and severally.
9. Aggrieved by the said order, opposite party Nos. 3 and 5 have filed the present appeal.
10. We have heard Counsel for appellants Sh. Gopal Mittal and carefully gone through the file.
11. In the present case, appellant No. 1 had operated respondent No. 1 i.e. Sh. Kuldeep Mahajan as an outdoor patient where he remained admitted from 1.5.2003 to 10.5.2003. He was discharged on 10.5.2003 but his pain persisted because stone could not be removed completely by the appellant No. 3 and caused further injury to the uterer. The appellant and the hospital had admitted that the surgical procedure of ureteroscopic removal of stone under spinal anaesthesia was instituted after shifting the respondent in the well equipped operation theatre of the hospital and during the said procedure, ureteroscope was advanced over the guide wire (one inside and one outside the ureteroscope) stone was visualised and broken. His ureter was fit around the ureteroscope and unfortunately the ureteroscope went beyond the site of stone impaction (the pelvic ureteric junction) the site of impaction of stone which was at the most upper end of the ureter and dislodged out from the upper end of the ureter and then while removing the ureterscope, the ureter became intersussepted, the whole of the ureter dislodged out from its upper attachments and entered into the bladder, which was seen inside out lying in the bladder on cystoscopy. Immediately exploration was done and the ureter was tried to be put back at its normal anatomical position but again unfortunately not succeeded as the ureteric injury was severe and it could not be repaired then and there, so, it was decided to perform left open nephrostomy with use of 14 nos. folleys catheter (this is an alternative path made for drainage of urine from the left kidney). Therefore, it was admitted by the appellant No. 1 as well as hospital that while doing the removal of stone, ureteric injury was caused which was severe in nature and could not be repaired. He was subsequently admitted to the PGI, Chandigarh. The report of PGI Annexure C-20 dated 25.6.2003 showed as under:
âIatrogenic ureteric injuryâ
12. It substantiates the contention of respondent No. 1 that he had suffered injury in the ureteric region due to gross negligence of appellant No. 1. Thus, it is a case of res ipsa loquitur, that is things speak themselves. The respondent No. 1 was aged about 45 years at the time of operation and was having five members which were dependent upon him. The appellant No. 1 had not produced any literature or any expert opinion that he had performed operation according to the standard procedure and such injury to the uterer was not uncommon. The very fact that he had caused injury to the ureter while performing surgical procedure of ureteroscopic removal of stone under spinal anaesthesia shows that he was totally at fault and there is no need of any corroboration from any expert evidence.
13. The authorities Vinitha Ashok v. Lakshmi Hospital and Others, I (2002) CPJ 4 (SC)=VI (2001) SLT 735=2002 (2) Con.LT 52 (SC); Sethuraman Subramaniam Iyer v. Triveni Nursing Home and Another, I (1998) CPJ 110 (NC)=1998 (1) Con.LT 242; Mrs. Kiran Bala Rout v. Christian Medical College and Hospital and Ors., II (2002) CPJ 131 (NC)=2003 (1) Con.LT 203, and Dr. S. Gurunathan (dead) v. Vijaya Health Centre, III (2002) CPJ 211 (NC)=2003 (1) Con.LT 435, are not applicable to the facts of the present case because in the present case things speak themselves. The injury to the ureter had been admitted by the appellant No. 1 during the process of surgical procedure. It is a case of res ipsa loquitur. If the appellant had acted with due care and caution, then ureteric injury would not have been caused to respondent No. 1. There is no evidence that he had taken due precaution in surgical procedure.
14. We concur with the reasoning given by the District Consumer Forum and hold that there is no force in the appeal and consequently, it is dismissed in limine. However, since Dr. Manoj Sharma is insured to the tune of Rs. 10 lacs with United India Insurance Company, so, Insurance Company is liable to pay compensation amount.
15. Copies of this order be communicated to the parties, free of charge.