IMPORTANT POINT
(1) Negligence – Every mishap shall not be construed as a negligence of the treating doctor or the hospital to fasten the liability

ORDER

Dr. S.M. Kantikar, Member.—The instant Appeal is preferred by Mr. Kapil Aggarwal & Ors. (hereinafter referred to as the “Appellants/Complainants”) under Section 19 of the Consumer Protection Act, 1986 against the impugned Order dated 31.10.2011 in Complaint No. 29 of 2011, passed by the Haryana State Consumer Disputes Redressal Commission (hereinafter referred to as the “State Commission”), wherein the Complaint of alleged medical negligence against Sarvodaya Hospital & Research Centre (hereinafter referred to as the “Respondents”) was dismissed.

2. For the sake of convenience, the parties are referred to as in the original complaint.

3. Brief facts of the case are that on 11.12.2009 the Complainant No. 1 admitted his wife, Mrs. Anita Aggarwal (hereinafter referred to as the “patient”) to Sarvodaya Hospital & Research Centre at Faridabad (hereinafter referred to as the ‘Hospital’) for the Complainants and excessive bleeding. She was examined by Dr. Arvind Kumar (hereinafter referred to as the ‘Opposite Party No. 2’) and Dr. Pankaj Zuthsi (hereinafter referred to as the ‘Opposite Party No. 3’) and was advised for hysterectomy i.e. removal of uterus. The patient was also suffering from umbilical hernia. The doctors specifically informed that the patient’s condition was not suitable for two surgeries, which could prove fatal.

4. On 12.12.2009, the patient was operated at around 3.00pm. It was alleged that her condition was serious when brought out from OT. She was directly shifted to ICU and put on oxygen and artificial ventilation support. The Complainant was shocked to learn from the ICU bedside ticket that along with Hysterectomy, the surgery for hernia was also performed. No consent was given for hernia operation. Post operatively, the patient developed hypoxic encephalopathy. It was further alleged that in the ICU, Tracheostomy procedure was done for four times. The patient remained in the ICU till 24.01.2010 and shifted to the ward. It was further alleged that the patient was discharged from the Hospital on 15.02.2010 after cash payment of bill Rs.2,50,000/-, but the discharge summary was issued on 27.02.2010. It was also alleged that due to repeated X-ray & CT Scan, the patient received heavy doses of radiation, which led to fall in Hb% to 8.3 g% on 26.01.2010. The entire treatment was negligent which caused death of the patient. Being aggrieved, the Complainant filed the Complaint before the State Commission seeking compensation to the tune of Rs. 45,42,500/-.

5. The Opposite Parties Nos. 1 to 5 filed their written versions and denied the allegations of medical negligence. They raised the preliminary objections on maintainability of the Complaint. It was further submitted that the patient was admitted in the Opposite Party No. 1 hospital on 11.12.2009 with the history of excessive bleeding per vaginum since one month and she had umbilical hernia. It was submitted that after the relevant investigations, her TLH was performed by Opposite Party No. 1 and Opposite Party No. 2. The doctors took high risk consent because of patient’s comorbid conditions. During the laparoscopic TLH procedure at the time of removal of umbilical port, closure/repair of hernia is mandatory as per standard of practice. It was not the operation of hernia, wherein no mesh and / or trackers were used. The Opposite Party No. 2 only closed the umbilical defect.

6. The State Commission dismissed the Complaint. Being aggrieved, the Complainant filed the instant First Appeal.

7. Heard the learned Counsel for both the sides. The delay of 80 days in filing the instant Appeal was condoned vide our Order dated 31.07.2012.

8. The learned Counsel for Complainants argued that after the surgery, the Complainant No.1 and his brother-in-law, Dr. H.M. Gupta were under the impression that only hysterectomy was performed but when post operatively, the patient was shifted to ICU, they learnt that without consent, hernial surgery was also performed. It is evident f