New Delhi: The Delhi State Consumer Disputes Redressal Commission recently exonerated Sir Ganga Ram Hospital and its Urologist Dr Chaddha from charges of medical negligence while performing Extracorporeal Shock Wave Lithotripsy (ESWL).
Taking note of the fact that the sole basis of the complaint lied on the fact that the treatment was not successful, the Commission gave clean chit to both the hospital and doctor and observed, "In the present case also, the only allegation against the Opposite Parties is that the treatment given by them was not successful, for which the Complainant had to consult another hospital (RG Stone) for the removal of the Kidney Stones. However, this alone cannot be a ground for holding the Opposite Parties liable for Medical Negligence since sometimes despite the best efforts, the patient may not favourably respond to a treatment given by doctor, due to which the treatment of a doctor may fail."
The history of the case dated back to 2010 when the complainant was diagnosed with kidney stones and approached Sir Ganga Ram Hospital in Delhi. Consequently, the Senior urologist examined the complainant and prescribed some tests. The reports revealed that the complainant had stone in Kidney measuring 9 mm in prominent renal pelvis.
Following this, the complainant was treated by using the "Double-J stenting followed by Extracorporeal Shock Wave Lithotripsy (ESWL)", where, a total of 3500 shocks were given at variable intensity level. Therefore the patient was discharged on the same day and paid Rs 35, 938 for treatment purpose.
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However, at night, he suffered from severe pain, vomiting, fever etc. and consulted the urologist for remedy. The doctor admitted the patient for bladder waste removal charging Rs 4000 to the patient. The treatment continued and the Double J stent was removed. despite the treatment, the stone remained and condition of the complainant deteriorated leading to immense pain.
Meanwhile, it has been alleged by the complainant that he had to take Voluntary Retirement from the Municipal Corporation of Delhi due to the deteriorating condition.
When the complainant underwent some tests elsewhere, the reports revealed that the stones were present like before and the Complainant was allegedly having high risk of bone disease due to the deficiency in the body caused by the treatment given by the hospital and the doctor.
Left with no other option, the Complainant got the treatment done from RG Stone Urology & Laparoscopy Hospital in May, 2012.
Alleging that there was utter negligence on the part of the doctor and the hospital the Complainant filed complaint before the consumer court Rs 22, 32, 354 for treatment, Rs 2 lakh for mental agony and another Rs 50,000 for litigation expenses.
On the other hand, denying the allegations, the doctor and the hospital submitted that they had informed the complainant that depending upon the nature of stone, the probability of breakage of the stone was 70-90% and it may even take up to 3 months for the passage of the stone. The Complainant was also informed that in order to achieve clearance, other procedures including Percutaneous Nephrolithonomy (PCNL) or Uretroscopy (URS), may also have to be performed.
Before the Fifth Session took place, the Complainant was informed in the OPD that if the session is not successful, he may have to go for alternate procedures/treatments. However, the patient did not follow up after the Fifth Session despite a specific advice, they submitted.
After taking note of the submissions by both the parties, the State Commission discussed the scope of medical negligence in respect of medical professionals, as discussed in the case of Seema Garg & Anr. vs. Superintendent, Ram Manohar Lohia Hospital & Anr. In that case it was held that In cases wherein the allegations are levelled against the Medical Professionals, negligence is an essential ingredient for the offence, which is basically the breach of a duty exercised by omission to do something which a reasonable man would do or would abstain from doing. However, negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence and they are entitled to protection so long as they follow the same.
Referring to this, the State Commission noted, "In the present case also, it will be have to be ascertained whether there was any lack of skill and competence on the part of the operating doctor and/or any omission to do what was actually required in the present facts and circumstances."
Taking note of the fact that the Complainant has not challenged the competency of the operating doctor, the Commission noted, " hence, the first part of the aforesaid para stands answered, that there was no lack of competence on the part of the Opposite Party No. 2."
The Commission also referred to the fact that the Complainant had contended that having knowledge of the fact that ESWL treatment was not fruitful the doctor should have chosen the alternate treatment method.
At this outset, the Commission referred to Apex Court order in the case of Harish Kumar Khurana vs. Joginder Singh and Ors. and Jacob Mathew v. State of Punjab and Anr. and noted, "From the aforesaid dicta of the Hon'ble Apex Court, it is clear that only the failure of the treatment is not prima facie a ground for Medical Negligence and in order to attract the principle of res ipsa loquitur, Negligence i.e. the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do, should be clearly evident from the record."
"In the present case also, the only allegation against the Opposite Parties is that the treatment given by them was not successful, for which the Complainant had to consult another hospital (RG Stone) for the removal of the Kidney Stones. However, this alone cannot be a ground for holding the Opposite Parties liable for Medical Negligence since sometimes despite the best efforts, the patient may not favourably respond to a treatment given by doctor, due to which the treatment of a doctor may fail," further observed the State Commission as it exonerated both the hospital and the doctor.
Dismissing the complaint, the Commission noted, "In totality of facts, with due regard to the pronouncements of the Hon'ble Supreme Court, as discussed above, we are of the view that the Complainant has failed to establish that there was a) Lack of Skill and Competence on the part of the Operating Doctor; or b) breach of a duty exercised by omission to do something which a reasonable man would do or would abstain from doing; or c) that the treatment which was given to the Complainant was not acceptable to the Medical Profession at that specific time period which are basically the essential requirements/ingredients for constituting a case of Medical Negligence covered under the Consumer Protection Act, 1986."
To read the case order, click on the link below.
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