NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
FIRST APPEAL NO. 799 OF 2017
 
(Against the Order dated 16/01/2017 in Complaint No. 376/2016 of the State Commission Punjab)
1. HARJEET KAUR
WINDOW OF SATINDER PAL SINGH, AGED ABOUT- YEARS, R/O HOUSE NO.3-4, BASANT CITY, PAKHOWAL ROAD, LUDHIANA (PUNJAB)
PUNJAB
...........Appellant(s)
Versus 
1. KULAR HOSPITAL & 2 ORS.
THROUGH ITS AUTHORIZED SIGNATORY, AND MANAGING DIRECROR, NH-1,BIJA, NEAR KHANNA LUDHIANA-141412(PUNJAB).
PUNJAB
2. DR. KULDEEP S. KULAR,
KULAR HOSPITAL, NH-1,BIJA, NEAR KHANNA, LUDHIANA-141412(PUNJAB)
PUNJAB
3. DR.NAVEEN MANCHANDA,
KULAR HOSPITAL, NH-1, BIJA, NEAR KHANNA,LUDHIANA-141412(PUNJAB)
PUNJAB
...........Respondent(s)

BEFORE: 
 HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER

For the Appellant :
Shri Sandeep Phogat, Advocate
For the Respondent :

Dated : 06 Dec 2017
ORDER

                 

1.      This appeal has been filed by the appellant/complainant against the order dated 16.1.2017 passed by Punjab State Consumer Disputes Redressal Commission, Chandigarh, in Consumer Complaint No. 376 of 2016 by which complaint was dismissed in limini.

2.      Brief facts that Satinder Pal Singh, (since deceased, herein referred as ‘patient’), was having history of hypertension and diabetes visited the opposite party No. 1-Kular Hospital and consulted Dr. Kuldeepak S. Kular,(OP-2) who advised the Metabolic Surgery.  It was advised on the basis of weight and height of the patient.  The patient’s height was 5’10”  and the weight was 95 kg., but, it was not so abnormal.  Accordingly,  on 5.11.2013, the operation of ‘Gastric by pass’ was performed in OP-1/Hospital.  Patient was discharged on 9.11.2013.  After discharge patient did not get complete relief but started feeling uneasiness.  The opposite party assured that patient will be recovered fully within a span of time.  Thereafter, in January, 2014, the patient had developed Diabetic foot and deep burns.  The treating doctor (OP-2) advised for daily dressing and medicines but ultimately on 20..8.2015 his foot was amputated in DMC Hospital, Ludhiana, subsequently, patient died on 16.9.2015.  It was alleged that sole objective of Gastric bypass surgery done by OP-2 was to cure Diabetes by reduction of weight but the purpose was not served.  Therefore, due to alleged deficiency in service and negligence in the treatment from OP-2, the complainant filed complaint before the State Commission, Punjab. 

3.      The opposite parties (1 to 3) resisted complaint by filing the written version and took the objection that the complaint was barred by limitation.  The surgery was performed on 5.11.2013 whereas the complaint was filed on 6.12.2016 i.e. after limitation period of two years.  It was denied that the surgery did not give its desired result and patient started feeling uneasy immediately thereafter. It was submitted that there shall be some recovery period after the surgery.  The patient developed diabetic foot and deep burns which was not related to ‘Sleeve Gastrectomy’ surgery.  The diabetic foot was noticed in January, 2014 but the instant complaint was filed on 6.12.2016.  There was huge delay.   Even, the complainant had not filed any application for condonation of delay. 

4.      On the basis of pleadings and evidence, the State Commission dismissed the complaint.  Being aggrieved by the impugned order, the complainant filed instant First Appeal.

5.      At the admission stage, heard the arguments from the learned counsel for the appellant. He submitted that that opposite parties have committed gross medical negligence while conducting  the ‘Sleeve Gastrectomy’ surgery.  He brought my attention to the literature on ‘Mini Gastric Bypass’ (MGB) for the treatment of morbid obesity.  After control of obesity, the Diabetes will be also under control.  In the instant case, the counsel submitted that it was the failure of surgery, which did not give any relief to the patient’s diabetic condition, which subsequently led to diabetic foot and amputation.

6.      I have perused the medical record and the literature on ‘Sleeve Gastrectomy’  filed by the complainant from the Bailey & Love’s- Text Book on surgery.  It is an admitted fact the patient was suffering as (NIDDM with type II diabetes) for more than one decade, his blood sugar reports depicts that he was highly diabetic.  His Obesity Profile report revealed the Random Glucose value was 361 mg/dl against the normal 70-140 mg/dl and Triglycerides as 1217 mg/dl against the normal range of 50-200 mg/dl.  The Sleeve Gastrectomy Surgery was performed in 5.11.2013.  After two months of surgery, in January, 2014, the patient had developed Diabetic foot and deep burn ulcers.  The patient took treatment and daily dressing in opposite party No. 1 Hospital and he was under follow-up.  At Dayanand Medical College, Ludhiana, the patient was admitted after the amputation of the gangrenous limb for follow up.  He was diagnosed as Type II Diabetes Mellitus with Nephropathy, acute on Chronic Kidney Disease (CKD).  Also, the patient suffered Septicemia and Depressive illness having multiple cuts injuries in the neck and bilateral wrist.  Therefore, the patient was put on mechanical ventilator from 22.8.2015 to 24.8.2015.  Because of diabetic foot and burns, the patient developed infection and Septicemia which was the ultimate cause of the death of the patient.

7.      On the basis of foregoing discussion, it is clear that the complainant filed a complaint before the State Commission after huge delay of 10 months without any application for condonation of delay.  Therefore, delay does not deserve to be condoned.  Even on merits, the gastric bye-pass and subsequent suffering of the patient was due to diabetic foot and Septicemia.  Both are totally different issues.   The purpose of gastric bye-pass surgery was for the obesity i.e. reduce the body weight.   Nowhere, it was mentioned as a treatment for diabetes.   The patient developed diabetic foot due to his uncontrolled diabetic status, which was clearly evident from the various laboratory reports. 

8.      At this junction, I would like to quote the observations of Hon’ble Supreme Court in the case of Jacob Mathews Case, (2005)6 SCC 1, which read thus:-

“When  a  patient  dies  or  suffers  some  mishap,  there  is  a  tendency  to  blame  the  doctor  for  this.   Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every  case  in  his  professional  career but surely  he  cannot be  penalized for  losing  a  case  provided  he appeared in it and made his submissions.”

 9.     Therefore, blaming OP-2 necessarily for the patient’s diabetic foot is not correct.  Thus, the appeal is hereby dismissed on the point of limitation as well as on merits.  However, there shall be no order as to costs.

 
......................
DR. S.M. KANTIKAR
PRESIDING MEMBER