Complaint No.295 of 2017.
Date of Institution:05.06.2017.
Date of order:26.02.2024.
1. Mehakpreet Kaur
2. Sehajpreet Kaur, Minor daughters of Major Singh son of Jaswant Singh through Grandfather Sh.Jaswant Singh being and next friend.
Both resident of Vill. Bakshiwal Tehsil and District Gurdaspur.
…...Complainants.
VERSUS
1. Surjit Clinic, Kalanaur, Tehsil and District Gurdaspur, through its Prop.
2. Dr.Lakhwinder Singh C/o Surjit Clinic Kalanaur Tehsil and District Gurdaspur.
3. The Oriental Insurance Company Limited 4E/14, Azad Bhawan Jhandelwala Ext.
….Respondents.
Complaint U/s 12 of Consumer Protection Act.
Present: For the complainants: Sh.Ankush Sharma, Advocate.
For the opposite parties No.1 & 2: Sh.S.J.S.Bajwa, Advocate.
For the opposite party no.3: Sh.A.K.Joshi, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Complainants Mehakpreet Kaur and Sehajpreet Kaur minors had filed the present complaint U/s 12 of the Consumer Protection Act through their Grand Father Jaswant Singh/Kartar Singh against the opposite parties and praying that the directions may kindly be issued to the opposite parties to make the payment of Rs.5,00,000/- immediately on account of mental agony, physical harassment and deficiency in service on the part of opposite parties including litigation expenses as this Hon'ble Forum/Commission deems fit in their favour by accepting the present, in the interest of justice.
2. The case of the complainants in brief is that they are minors and are unable to file and pursue the present complaint personally and as such the present had been filed through their grandfather with whom they are residing and who has no adverse interest qua the interest of minors. It was pleaded that Smt.Manpreet Kaur was the mother of the complainants was legally wedded wife of Major Singh and was well educated lady aged just 23 years and was doing the entire house hold work. It was further pleaded that Smt.Manpreet Kaur was pregnant and she was admitted on 13.06.2015 at hospital of opposite party No.1 where she was checked up by opposite party No.2 who suggested for caesarian and her husband and father-in-law gave their consent for it and on the same day at about 5.00 P.M. she gave birth to complainants i.e. twin female children with major operation but she died during this process and opposite parties did not disclose this fact to their husband and other family members and shifted her in the ward by saying that she is unconscious and will gain sense after some time but on the next day i.e. 14.06.2015 Smt.Manpreet Kaur was referred by opposite party No.2 to Guru Nanak Dev Hospital Amritsar in a very clandestine manner knowing fully well that she was no more. It was also pleaded that Smt.Manpreet Kaur i.e. mother of the complainants was taken to Guru Nanak Dev Hospital Amritsar where she was declared dead by the doctors and her family members with the utter surprise requested for her post mortem but they refused to do so by saying that it was only conducted in accidental death cases and thereafter deceased was brought to her matrimonial home where she was cremated. It was next pleaded that deceased was not treated by the opposite parties in scientific line and had not provided proper care and treatment, as a result of which she died during the course of operation but the opposite parties did not disclose this fact and linger on the matter by saying that the patient is unconscious and thereafter in very clever manner referred her to Guru Nanak Dev Hospital Amritsar and in this way opposite parties committed medical deficiency as well as negligence and deficiency which also amounts to unfair trade practice on the part of the opposite parties, as the opposite party No.2 had not operated the deceased with full care and caution and had not looked after her and operated the deceased in a negligent manner, which resulted into her untimely death. It was alleged that due to the negligence of the opposite parties complainants lost shadow of their mother and deprived off from the motherly love, breast feeding and proper upkeep and also suffered physically, mentally as well as financially which cannot be compensated in terms of money and it is a clear cut deficiency, gross negligence in service and unfair medical practice on the part of the opposite parties especially opposite party No.2 who had failed to operate the deceased in an approved scientific medical line and caused her death while operating her, hence this complaint.
3. Upon notice opposite parties No.1 and 2 appeared through their counsel and filed their separate written reply/statement. Opposite party No.1 filed written reply by taking the preliminary objections that present complaint is wholly misconceived, groundless, frivolous, vexatious and is unsustainable in the eyes of law and had been filed without any justified reason/cause against opposite party No.1 just to harass, defame and extort illegal sum of money from opposite party No.1, hence the complaint is liable to be dismissed; that no specific and scientific allegations with regard to negligence or deficiency in providing services had been made by the complainant against opposite party No.1, that complaint had been filed just to waste the valuable time of opposite party No1, although no negligence was committed by opposite party No.1 while providing the treatment; that no cause of action arose against opposite party No.1; that the present complaint is totally false, fabricated which is synthesized on the basis of unscientific laymen conjectures, assumptions and presumptions; that the complaint is bad for non-arraignment and mis-arraignment of parties. It was stated that opposite party No.1 is insured with "The Oriental Insurance Co. Ltd." through Professional Indemnity Doctor Policy; that the patient was operated by Dr.Suman who is working as surgical specialist and proprietor of Surjit Clinic Kalanaur and is a well qualified and reputed doctor, with substantial good will and experience of long standing successful medical practice since Aug. 2013 and she is not made party in this complaint. On the basis of factual matrix and medical facts it was stated that patient Manpreet Kaur was admitted at opposite party No.1 with twin pregnancy on 13.06.2015 where through proper sonographic and blood investigations and after medical check-up, the patient was prepared for caesarean, which was the indication for surgery due to twin pregnancy and caesarean section was done diligently, prudently, with utmost due care and caution and patient gave birth to two female children during the caesarean at 4:58 PM on the same day. After that patient was shifted to the maternity ward in a fully conscious state at 5:45 PM from recovery with stable vitals i.e. blood pressure, pulse and oxygen saturation and as such it is incorrect that the patient died during surgery. It was further stated that the patient was fully conscious after surgery and she was talking to staff members and attendants but suddenly at 6:30 PM, she had generalized tonic and clonic seizures with the sudden rise of blood pressure and proper medical treatment was given to control seizures and blood pressure. It was stated that after fits, the patient became stable, but with altered sensorium. Patient party advised for further check-up at a higher centre but they refused and insisted Dr.Suman to continue with treatment at hospital of opposite party No.1 and patient remained in the hospital as per repeated insistence by the patient party. It was stated that on 14.06.2017 early morning the patient's vitals BP, Pulse oxygen saturation was stable and sensorium was altered and due to this she was referred to Shri Guru Ram Dass (SGRD) Hospital through ambulance (108) with OT Assistant of Surjit Clinic where her death was occurred and death certificate was issued by this hospital. On merits, it was stated that grandfather has no locus standi to file the case if father is alive i.e. Major Singh who is the father of minors should have filed the case and as per Indian Evidence Act proper evidence needs to prove the case. It was further stated that no action was taken by authority as there was no negligence, unfair trade practice or deficiency of service on the part of opposite party No.1 and opposite party No.1 is not liable to pay anything to the patient party. Lastly, opposite party No.1 prayed for dismissal of complaint with costs and also prayed that complainant be ordered by this Hon'ble Forum/Commission to pay Rs.10,000/- Under Section 26 of CPA, 1986 for filing false and vexatious complaint.
4. Opposite party No.2 also filed his written reply by taking the preliminary objections that present complaint is wholly misconceived, groundless, frivolous, vexatious and is unsustainable in the eyes of law and had been filed without any justified reason/cause against opposite party No.2 just to harass and defame the opposite party No.2 as he never treated or operated the patient, hence the complaint is liable to be dismissed; that complainant claimed that patient was treated by opposite party No.2. On the basis of factual matrix and medical facts it was stated that patient was neither treated nor operated by opposite party No.2 and there is no question of any negligence, deficiency in services and unfair medical practice on his part. As per Indian Evidence Act proper evidence needs to prove the case. It was further stated that an enquiry was also conducted by SDM Gurdaspur and it was held in the report that the patient was not operated or treated by Dr.Lakhwinder Singh (OP No.2) who was working as Surgical Specialist in CHC, Fatehgarh Churian. It was also stated that opposite party No.2 is insured with the Oriental Insurance Co. Ltd. through Professional Indemnity Doctor Policy. Lastly, opposite party No.2 prayed for dismissal of complaint.
5. Opposite party No.3 also appeared through their counsel and filed their written reply by taking the preliminary objections that neither copy of policy nor particulars were supplied to the insurance company and opposite parties no.1 and 2 were not insured with the opposite party No.3 and as such opposite party No.3 is not liable to pay any compensation; that present complaint is not maintainable and company is not liable to pay any compensation to the complaint as under the terms and conditions of the 'Professional Indemnity Doctors Policy', the alleged insured opposite parties no.1 and 2 did not give written intimation to the company regarding the present complaint filed by the complainant against opposite parties no.1 and 2 nor other required documents i.e. Medical treatment record of the complainant, Admission and Discharge Certificate of the complainant etc. supplied by the opposite parties no.1 and 2 to the insurance company and in the absence of the same company was not in a position to investigate the matter and give the proper and complete reply of the complaint and as such present complaint is liable to be dismissed; that policy in question is the reimbursement benefit policy for the alleged insured, if any omission or negligence is committed by the alleged insured during the treatment of the complainant, even in that case, the insurance company is not liable to pay the claim until it is covered under the terms and conditions of the policy and as such the liability of the insurance company is fastened only subject to the terms and conditions of the policy; that the opposite parties were summoned in the present complaint without following the guidelines of the Hon'ble Supreme Court in dealing the medical negligence cases; that complainant was not disclosed any negligence on the part of any doctor in the complaint and as per the complaint, the doctors of Surjit Clinic conducted treatment as per procedure and complainant was not pointed out any negligence on the part of doctors during his treatment and that complaint is not supported by any expert opinion, as such without any expert opinion, the doctors could not be summoned or held liable. On merits, it was stated that grandfather has no locus standi to the file case if father of minors is alive i.e. Major Singh, who is father of minors, should have filed the case. Opposite party No.3 has stated that paras no.4 to 8 of merits relates to para no.8 and 11 of written reply/statement of opposite parties no.1 and 2 and same may kindly be read as reply of these paras. All other averments made in the complaint have been denied and prayed for dismissal of the complaint with exemplary costs.
6. Counsel for the complainants to prove her case had tendered into evidence affidavit of Jaswant Singh grandfather of complainants Ex.C-1/A, affidavit of Major Singh son of Jaswant Singh father of complainants Ex.C-2/A, affidavit of Balbir Singh Member Panchyat Ex.C-3/A, copies of documents Ex.C-1 to Ex.C-6 and original death certificate of Manpreet Kaur Ex.C7 and closed the evidence on behalf of complainants.
7. Counsel for the opposite parties no.1 and 2 had tendered into evidence affidavit of Dr.Suman Bala Ex.OP1,2/1, affidavit of Dr.Lakhwinder Singh Ex.OP-1,2/2 alongwith documents Ex.OP-1,2/3 to Ex.OP-1,2/14 and closed the evidence on behalf of opposite parties No.1 and 2.
8. Counsel for the opposite party no.3 had tendered into evidence affidavit of Karam Singh Divisional Manager Ex.OP-3/1 alongwith copies of Medical Establisments (Guidelines) Ex.OP-3/2 and closed the evidence on behalf of opposite parties No.3.
9. Written arguments filed by opposite parties no.2 and 3 but not filed by the complainant and opposite party no.1.
10. Counsel for the complainants has argued that mother of the complainants had approached opposite party No.1 for delivery of child on 13.06.2015 and was suggested caesarian by opposite party No.2 and deceased Smt.Manpreet Kaur gave birth to twin female children i.e. complainants No.1 and 2. It is further argued that Smt.Manpreet Kaur was shifted to ward in unconscious condition without disclosing anything to the family members and thereafter on next day i.e. 14.06.2015 Smt.Manpreet Kaur was referred to Guru Nanak Dev Hospital Amritsar when she was already dead. It is further argued that the opposite parties had not treated Smt.Manpreet Kaur properly and death took place due to negligence of opposite parties. Accordingly, complainants are entitled to receive compensation of Rs.5,00,000/- from the opposite parties.
11. Counsel for the complainants has relied upon judgment of Hon'ble Supreme Court of India in Civil Appeal No.2641 of 2010, (Arising out of SLP(C) No.15084/2009). D/d. 8.3.2010, in case titled as V. Kishan Rao. Vs. Nikhil Super Speciality Hospital & Another in which it has held as under:-
IMPORTANT
Medical negligence - Claim of petitioners cannot be rejected only on the ground that expert witness was not examined to prove negligence of Doctor - It is not required to have expert evidence in all cases of Medical negligence.
"A. Consumer Protection Act, 1986, Sections 23 and 3 - Medical negligence - Claim of petitioners cannot be rejected only on the ground that expert witness was not examined to prove negligence of Doctor - It is not required to have expert evidence in all cases of Medical negligence.
ON FACTS:-
"Patient suffering from intermittent fever and complaining of chill - Patient admitted in hospital and subjected to certain tests but Malaria was not diagnosed - Patient was treated for Typhoid though test for Typhoid was also found negative - Patient did not respond to medicine given by the accused doctor - Patient in critical situation shifted to another hospital - Tests conducted there diagnosed Malaria - Patient died - Accused doctor contended that he acted in accordance with practice accepted as proper by a responsible body of medical men - Doctor held negligent by District Consumer Forum and awarded compensation of Rs.2 Lakhs with cost of Rs.2000/- - Order of District Consumer Forum set aside by State Consumer Commission and National Consumer Commission on the ground that District Consumer Forum did not ask the claimant to adduce expert evidence to prove negligence - Order of National Commission set aside - Held in the facts and circumstances of the case expert evidence was not required and District Forum rightly did not ask the appellant to adduce expert evidence - Both State Commission and the National Commission fell into an error by opining to the contrary - Further held :-
1. There is no law to have expert evidence in all cases of medical negligence.
2. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness.
3. There may be simple cases of medical negligence where expert evidence is not required.
4. Those cases should be decided by the Fora under the said Act on the basis of the procedure which has been prescribed under the said Act.
5. In complicated cases where expert evidence is required the parties have a right to the Civil Court.
6. That right of the parties to go to Civil Court is preserved under Section 3 of the Act. (1995) 6 SCC 651, (2002) 6 SCC 635 relied. 2009(2) RCR (Criminal) 64: 2009 (2) RCR (Civil) 1:2009 (2) RAJ 39 Distt.".
(Paras 33, 54 and 55)
"B. Consumer Protection Act, 1986, Section 3 - Civil Court and Consumer Fora - Provisions of Consumer Protection Act are in addition to and not in derogation of the provisions of any other law for the time being in force - Thus the Act preserves the right of the consumer to approach the civil court in complicated cases of medical negligence for necessary relief - But the cases in which complicated questions do not arise the Forum can give redressal to an aggrieved consumer on the basis of a summary trial on affidavits - Further held:-
1. In complicated cases which require recording of evidence of expert, the complainant may be asked to approach the civil court for appropriate relied.
2. It has to be left to the discretion of Commission "to examine experts if required in an appropriate matter. (2002) 6 SCC 635 relied.
3. It is not required to have expert evidence in all cases of medical negligence - The general direction given in D'Souze case 2009 (2) RCR (Civil) 1 : 2009 RCR (Criminal) 64 to have expert evidence in all cases of medical negligence cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case - The directions in D'Souza (1995) 6 SCC 651 are contrary to (a) the law laid down in cases of Indian Medical Association (1995) 6 SCC 651, (b) and in Dr. J.J. Merchant (2002) 6 SCC 635 - The directions are also contrary to the provisions of the governing statute.(1995) 6 SCC 651 relied".
(Paras 32, 33, 35, 36, 42 and 49)
"C. Consumer Protection Act, 1986, Sections 3 and 23 - Medical negligence - Death of patient who was admitted in hospital for treatment - Complaint filed against the hospital that death was caused due to Medical negligence - Medical negligence whether be proved by expert evidence - Held:-
1. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provide under this Act will be unnecessarily burdened and in many cases such remedy would be illusory - Each case has to be judged on its own facts.
2. However, if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case - The discretion in this matter is left to the members of Fora.
3. There cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence.
4. An expert witness in a given case normally discharges two functions - The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man - The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence.
5. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness".
(Paras 13 and 54)
"D. Medical negligence - Test to establish Medical negligence - Held :-
1. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men.
2. The true test for establishing negligence is diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. 1957 (2) All England Law Reports 118 relied".
(Para 18)
"E. Consumer Protection Act, 1986, Section 2(1)(o) - Deficiency in service - Definition of 'service' under section 2(1)(o) of the Act has to be understood on broad parameters and it cannot exclude service rendered by a medical practitioner.(1995) 6 SCC 651 relied.
(Para 31)
"F. Medical negligence - Onus to prove - In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself - In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence".
(Para 47)
"G. Per incuriam - When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered 'per incuriam' - Concept of per incuriam explained - Held :-
"Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, if found, on that account to be demonstrably wrong".
(Para 51)
"H. Consumer Protection Act, 1986, Section 23 - Evidence Act, Section 45 - Medical negligence - Evidentiary value of expert witness - Held :-
1. An expert witness in a given case normally discharges two functions - The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man - The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence.
2. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness.(1988) 2 SCC 602, (1990) 3 SCC 682 relied".
(Para 54)
12. Counsel for the complainants has further relied upon judgment of Hon'ble Supreme Court of India in Civil Appeal No.2897 of 2000, (Arising out of S.L.P. (Civil) No.18827 of 1999). D/d. 24.4.2000, in case titled as State of Haryana Vs. Smt. Santra in which it has held as under:-
"A. Tort - Medical negligence - Negligence is a 'tort' - Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill as a implied undertaking - Breach of any such duties may give a cause of action for negligence and the patient may be entitled to recover damages from his Doctor".
(Paras 9 and 11)
"B. Medical negligence - Family planning scheme - Sterilisation - Family planning is a National Programme - Every body has a responsibility to contribute for implementation of such programme - People are voluntarily offering themselves for sterilisation in their own interest and to arrest the growth in population of the Nation - Every additional child gives extra burden on the parents - Unwanted child certainly adds to the financial problems of a poor family - Parents are morally and duty bound legally to maintain their children - In many countries it may not be an actionable claim, but in a country liked ours where majority of the people live below powerty-line, the doctor concerned and the Government is liable to bear damages on account of failure of sterilization operation undergone in a Govt. Hospital resulting in birth to an unwanted child by the person sterilized - A negligence which is apparent requires no proof - Damages can be assessed according to the standard of the parents keeping in view the period of expected dependency of the child upon them on the principles of assessing maintenance at least till the child attains puberty - Parents who were labourers already having seven children awarded Rs.54,000/- by the Trial Court - Orders upheld".
(Paras 34, 35, 36 and 38)
"C. Criminal Procedure Code, Section 125 - Hindu Adoption and Maintenance Act, Section 20 - Maintenance of child by parents - Maintenance would include provision for food, clothing, residence, education of children and medical attendance - The obligation of parents is statutory as well as personal and moral - Even a Mohammedan is bound to maintain his son till the age of puberty under the Mohammedan Law".
(Paras 35 and 36)
13. Counsel for the complainants has also relied upon judgment of Hon'ble Supreme Court of India in Writ Petition (Civil) No.796 of 1992, D/d. 6.5.1996 in case titled as Paschim Banga Khet Mazdoor Samity Vs. State of West Bangal in which it has held as under:-
"A. Constitution of India, Articles 21 and 39-A - Medical aid - Free medical aid - Right to life - Serious cases for treatment - Govt. hospitals - Medical Officers employed in Govt. Hospitals are duty bond to extend medical assistance to preserve human life - Failure of Govt. hospitals to provide timely medical aid to serious patients results in violation of their right to life guaranteed under Article 21 of the Constitution - Medical Officers are under obligation to attend to the seriously injured patients immediately and cannot be refused treatment on the ground of non- availability of bed/room - Directions issued for ensuring immediate medical aid to serious patients/inured - Government directed to render necessary assistance for improvement of medical services in the country".
(Paras 9 and 15 to 17)
"B. Consumer Protection Act, 1986, Sections 2(1) (d) (ii) and 2(1) (o) -Medical services - Patients - Government Hospitals - Patients seeking treatment in Govt. Hospital are 'consumers' within the meaning of the Section 2(1) (d) (ii) and the hospitals established by the Govt. render 'services' within the meaning of Section 21(1) (o) of the Act - Patient not provided proper assistance in emergency condition - Patient awarded compensation of Rs.25,000/- ".
(Paras 4,9 and 10).
14. Counsel for the complainants has next relied upon judgment of Hon'ble Supreme Court of India in Civil Appeal No.668 of 1993, D/d. 13.11.1995 in case titled as Indian Medical Association Vs. V.P. Shantha and Ors. in which it has held as under:-
"C. Consumer Protection Act, 1986, Section 2(1) (o) - Consumer Protection - Service - Scope and ambit - Not limited to service rendered by person in occupation - Medical practitioners come within the purview of the Act".
(Paras 27 and 56)
"H. Consumer Protection Act, 1986, Section 2(1) (o) - Words And Phrases - Service - Service rendered by employee to his employer is excluded from definition of service - Service rendered by medical practitioner is service of personal nature - But relationship between doctor and patient is not that of employer and employee - Services rendered by Doctor therefore cannot be excluded from definition of 'service'".
(Paras 41, 42 and 56)
15. Counsel for the complainants has relied upon judgment of Hon'ble Supreme Court of India reported in 1969 AIR (SC) 128 : 1969(1) SCR 206 and in Civil Appeal No.547 of 1965, D/d. 2.5.1968 in case titled as Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and another in which it has held as under:-
"Fatal Accidents Act, 1855, Section 1A- Tort - Negligence of surgeon towards his patient - Question of liability of surgeon - Duties of doctor towards his patient- Person who holds himself out ready to give medical advice and treatment impliedly skill undertakes that he possessed of skill and knowledge for the purpose - Practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care - Held, on fact that High court was right in its conclusions that death of patient was due negligence of doctor". (Para 17)
16. Counsel for the complainants has further relied upon judgment of Hon'ble Madras High Court in case titled as Mrs.Arpana Dutta. Vs. Apollo Hospitals Enterprises And …. on 18 February, 2000 reported in 2002 ACJ 954, AIR 2000 Mad 340, (2000) IIMLJ 772.
17. Counsel for the complainants has also relied upon judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi reported in Consumer Law Cases (2005-2008) Page 530 in Original Petition No.46 of 1998, Decided on 28th February, 2007 in case titled as Sushma Sharma and others Vs. Bombay Hospital and others in which it has held as under:-
"(i) Medical negligence - Surgery - Lack of pre-operative assessment and evaluation - Lack of coordination between various specialist and Resident staff of ICU - Deceased suffering from fractured neck femur with heart disease and chronic renal failure - Orthopaedic surgeon operated upon the deceased against the advice and opinion of the Anaesthetist and the Cardiologist - One cannot expect the patient and his relatives to pay coordinating role and to find out as to what doctor has prescribed which treatment and whether the specialists' instructions are being implemented properly and within reasonable time by the Resident doctors - Medical negligence proved - Rs 3 lacs awarded as compensation to complainant..
- (Paras 23 to 31)
(ii) Medical negligence - Vicarious liability - Necessary party - Impleadment of doctor - Irrespective of the way a particular doctor is impleaded or not, if there is negligence on his part the hospital had to be held to have vicarious responsibility. - (Para 28)
(iii) Adverse Inference - Medical negligence - It was responsibility of the Hospital to have ensured the presence of doctor, their employee at the relevant time before the commission - An adverse inference had to be drawn against the Hospital for having failed to do so". (Para 29)
Case referred:
2004(IX) (AB) SC 545 (Savita Garg vs. Director, National Heart Institute)
18. On the other hand counsel for the opposite party No.1 has argued that complaint is totally false, as opposite party No.1 has not committed any negligence in this case and the complaint is bad for non-joinder of parties i.e. Dr.Suman who is prop. of opposite party No.1 hospital and Oriental Insurance Company Limited. It is further argued that Smt.Manpreet Kaur was admitted with opposite party No.1 hospital with twin pregnancy on 13.06.2015 and after medical checkup was prepared for caesarian and caesarian was done diligently prudently with utmost care and two female children were born at 4:58 PM on 13.06.2015 and patient was normal. It is further argued at 6:30 PM the patient had generalized tonic and clonic seizures with the sudden rise of blood pressure, proper and correct medical treatment was given to control seizures and blood pressure and patient became stable but with altered sensorium. It is further argued that the attendants of the patient were advised for further checkup at higher centre but they refused and Dr.Suman continued treatment only on being insisted by the patient party. It is further argued that on 14.06.2017 all the para meters were normal in the morning but sensorium was altered due to which patient was referred to Shri Guru Ram Dass Hospital through ambulance 108 with OT assistant of Surjit Clinic and the death took place at Shri guru Ram Dass Hospital. It is further argued that Dr.Lakhwinder Singh has not played any role in the surgery and has been incorrectly impleaded as party. Counsel for the opposite party No.1 has further relied upon the report of medical board as per which the board has given opinion that Dr.Suman had followed the prescribed procedure and as such from the opinion of the board itself it is proved on record that there was no medical negligence on the of prop. of opposite party and operating surgeon. It is further argued that this commission can not ignore the findings of the medical board.
19. Counsel for the opposite party No.2 has argued that opposite party No.2 had never treated the patient and is working as surgical specialist at CHC Fatehgarh Churian and opposite party No.2 is inured with Oriental Insurance Company Limited. It is further argued that even on enquiry by SDM Gurdaspur it was held that opposite party No.2 had not operated the patient and as such there is no deficiency in service and relationship of consumer and service provider.
20. Counsel for the opposite party No.3 has argued that opposite parties No.1 and 2 have not provided the particulars of insurance and the opposite parties No.1 and 2 have not given any intimation to opposite party No.3 alongwith required documents and as such they have no liability. However, opposite party No.3 is liable for compensation only if it is covered under the terms and conditions of the policy.
21. We have heard the Ld. counsels for the parties and gone through the record.
22. It is admitted that patient namely Smt.Manpreet Kaur had approached opposite party No.1 hospital on 13.06.2015 for delivery of child. It is further admitted fact that opposite party No.1 had suggested caesarian for the twin pregnancy. It is further admitted fact that opposite party No.1 had conducted caesarian upon Smt.Manpreet Kaur and two twin female children were born. It is further no more disputed fact that Dr.Suman Bala is prop./operating surgeon of opposite party No.1. It is further admitted fact that on 14.06.2015 patient Smt.Manpreet Kaur was referred to Amritsar. The issues for adjudication before this Commission are as under:-
i) Whether the opposite party No.1 had treated the patient Smt.Manpreet Kaur negligently and is responsible for the death.
ii) What is role of opposite party No.2 in surgery.
iii) If issue No.1 is decided in affirmative then whether complainants are entitled to receive compensation from opposite parties.
23. To prove their case complainants being minors have filed affidavit of Jaswant Singh grandfather of minor complainants Ex.C-1/A, affidavit of Major Singh father of minor complainants Ex.C-2/A, affidavit of Balbir Singh Member Panchayat Ex.C-3/A, copies of birth certificates or minor complainants Ex.C1 and Ex.C2, copies of complaints Ex.C3 to Ex.C5, copy of fee slip Ex.C6, copy of death certificate of Smt.Manpreet Kaur Ex.C7 including affidavit of Ranjit Singh Member Panchayat Ex.CW-4/A, copy of Aadhaar Card Ex.CX, attested copy of ID Card Ex.CY and photographs Ex.CZ (In Additional Evidence) whereas opposite parties No.1 and 2 have placed on record affidavit of Dr.Suman Bala Ex.OP-1,2/1, affidavit of Dr.Lakhwinder Singh Ex.OP-1,2/2, copy of certificate of registration Ex.OP-1,2/3, copy of master of surgery certificate Ex.OP-1,2/4, copy of policy of insurance Ex.OP-1,2/5 and Ex.OP-1,2/6, copy of death certificate Ex.OP-1,2/7, copy of report of SDM Gurdaspur Ex.OP-1,2/8, copies of patient record file Ex.OP-1,2/9, copy of consent form Ex.OP-1,2/10, copy of aneasthesia records Ex.OP-1,2/11, copy of diagnostic report Ex.OP-1,2/12, copy of ultrasound report Ex.OP-1,2/13 and Ex.OP-1,2/14. Opposite party No.3 has placed on record affidavit of Karam Singh Div. Manager Ex.OP-3/1 and copies of Medical Establisments (Guidelines) Ex.OP-3/2.
24. During the pendency of the present complaint, complainants have moved an application for additional evidence to produce the photographs alongwith some other documents which was allowed and photographs of the ashes after cremation have been placed on record as Ex.CZ wherein one scissor is also found lying in the plate. Vide order dated 05.10.2023 Principal/Registrar of Guru Nanak Dev Medical College & Hospital Amritsar was directed to constitute the board of doctors to give opinion and as per order of this Commission medial board was constituted by the Director/Principal of Guru Nanak Dev Medical College & Hospital Amritsar comprising of Dr.Suparna Grover, Dr.Rakesh Sharma and Dr.Jatinder Pal Singh who have given their opinion which is being marked by this Commission as Ex.AZ. Medical Board after going through the record and statements of the operating surgeons given following observations:-
OBSERVATIONS OF MEDICAL BOARD
"After studying all records and statements, the Medical Board has made following observations:
The claim of the complainant that Manpreet Kaur had already died when she was shifted out after surgery is not true. Also, the claim that patient was dead when she reached the higher center is also not true as per record. Even the name of the hospital where patient was allegedly declared dead i.e. Guru Nanak Dev Hospital Amritsar as per complainant is not correct. The patient died at SGRD Hospital Amritsar.
Complainant mentions that husband and father-in-law gave consent for caesarean but the indoor file only has signature of patient Manpreet Kaur and her mother-in-law Mrs.Baljeet Kaur.
Dr.Suman is a registered medical practitioner under Punjab Medical Council under no.35872. Her PMC Registration certificate and Degree of Master in Surgery from University of Jammu was already attached in documents sent to the Medical Board.
There is no record of any antenatal care taken by Manpreet Kaur for first 7 months of pregnancy. It is not clear when and how Manpreet Kaur became aware that it was a twin pregnancy and why they chose to take antenatal care from 8th month of pregnancy from Surjit Clinic.
The intenatal records attached in file shows that Manpreet Kaur w/o Major Singh was a high-risk pregnancy orimigravida, teenage (19 years old) with twin pregnancy and severe anaemia and approximately 7 months pregnant when she started taking antenatal care from Surjit Clinic.
The antenatal care sought by Manpreet Kaur from Surjit Clinic was only 3 visits, that too only in 1 month before delivery when latter identified severe anemia for which blood transfusion was advised at Surjit Hospital on 28.05.2015. There is no documentary evidence of blood transfusion given but Manpreet Kaur's Hb had improved to 10 g% before surgery as per lab report attached in file dated 12.06.2015.
There is no evidence of any surgical complication during caesarean done by Dr.Suman as per records.
As per present day standard guidelines, the management of postpartum eclampsia i.e. magnesium sulphate was not given. Considering that this event took place more than 8 years back and considering the fact that another anticonvulsant and diuretics were given with supportive care, immediate treatment given for seizures can be considered appropriate.
The claim by Dr.Suman that referral was first advised on 13.06.2015 evening has no documentary evidence.
Patient was referred to SGRD Hospital, Amritsar on 108 Ambulance by Dr.Suman Bala with a detailed refer slip that was attached in file obtained from SGRD Hospital.
According to Dr.Suman Bala, patient was accompanied by OT Assistant Mr.Mandeep Singh from Surjit Clinic but the same is not confirmed from SGRD Hospital file.
The fact that referral was done on 108 ambulance, detailed referral slip was given and the claim that an OT technician accompanied the patient, all suggest that standard referral guidelines were followed.
Regarding Dr.Lakhwinder Singh, there is no clarity if he had a role in the medical care of Mrs.Manpreet Kaur w/o Major Singh or not. The Board thus cannot opine on "medical negligence" by Dr.Lakhwinder Singh in this case.
His statement that he had no role in the medical care of Mrs.Manpreet Kaur w/o Major Singh was seconded by Dr.Suman Bala who is the proprietor of Surjit Clinic, Kalanaur District Gurdaspur.
He has also shared a copy of Roster of CHC Fatehgarh Churian (bearing signature of SMO Fatehgarh Churian without office no.) according to which he was posted as EMO on duty at CHF Fatehgarh Churian on 13 June 2015 in all three shifts.
The enquiry report by SDM Gurdaspur No.30/SDA dated 6.3.2017 has not been able to establish whether he had a role in the delivery of Mrs.Manpreet Kaur w/o Major Singh".
And thereafter medical board has given opinion as under:-
OPINION OF PRESENT MEDICAL BOARD:
"After going through complete record of the present case, the Board is of the opinion that Manpreet Kaur w/o Major Singh had postpartum eclampsia. Postpartum eclampsia is a serious obstetric complication and can be seriously life threatening even with the standard treatment. The Board members are of the view that there is no evidence of gross medical negligence by Dr.Suman and her team at Surjit Hospital in the management of Mrs.Manpreet Kaur w/o Major Singh.
Regarding Dr.Lakhwinder Singh, there is no clarity if he had a role in the medical care of Mrs.Manpreet Kaur w/o Major Singh or not. The Board thus cannot opine on "medical negligence" by Dr.Lakhwinder Singh in this case".
Dr.Suparna Grover Dr.Rakesh Sharma Dr.Jatinder Pal Singh
Professor Professor Assistant Professor
Deptt. of Obs & Deptt. of Surgery. Deptt. of Forensic
Gynae. Medicine.
Board of Doctors,
Government Medical College,
Amritsar.
The medical board vide its report Ex.AZ found that there is no surgical complication during caesarian as per record. It is further found that as per present day standard guidelines, the management of postpartum eclampsia i.e. magnesium sulphate was not given. Considering that this event took place more than 8 years back and considering the fact that another anticonvulsant and diuretics were given with supportive care, immediate treatment given for seizures can be considered appropriate. However, the board has found that Dr.Suman has stated that referral was advised for the first time on 13.06.2015 evening but there is no documentary evidence with the board to prove this fact that inspite of having knowledge regarding postpartum eclampsia Dr.Suman had advised referral of the patient on 13.06.2015 itself. The board further found that patient was referred to SGRD Hospital Amritsar by Dr.Duman with detailed referring slip accompanied by OT Assistant Mr.Mandeep Singh from Surjit Clinic but the said fact is not confirmed from SGRD Hospital's file. The board has given clean chit to Dr.Lakhwinder Singh opposite party No.2 with the observations that there is no clarity if Dr.Lakhwinder Singh played any role in the care of patient Smt.Manpreet Kaur and has also relied upon enquiry report of SDM Gurdaspur. The perusal of opinion section of report shows that the patient Smt.Manpreet Kaur had postpartum eclampsia which a serious obstetric complication and can be seriously life threatening even with the standard treatment. We are of the view that inspite of having found so many discrepancies on the part of operating surgeon Dr.Suman the medical board has given view that there is no evidence of gross medical negligence by Dr.Suman in the treatment to patient.
25. The counsel for the opposite party No.1 has taken plea that the complainant is bad for non-joinder of Dr.Suman and is liable to be dismissed but the head note of the complaint shows that Surjit Clinic has been arrayed through its prop. And admittedly Dr.Suman Bala has conducted the operation as the prop. and surgeon of the hospital and as such we are of the view that there is no need to separately impleaded Dr.Suman Bala as a party in the present complaint. We have relied upon the judgment of Hon'ble Supreme Court of India Appeal (Civil) 4024 of 2003 decided on 12.10.2004 titled as Smt.Savita Garg Vs. The Director National Heart Institute wherein the Hon'ble Supreme Court of India has held as under:-
"The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities".
No doubt we have no hesitation in holding that Dr.Suman has done her M.B.B.S. and there after post graduation from G.M.C. Jammu as per Ex.OP-1,2/3 in July, 2004 and is registered with Punjab Medical Council since 27.03.2006. Dr.Suman had passed Master of Surgery in May, 2013 as per Ex.OP-1,2/4. However, although, she was having required qualification to carry out the caesarian upon the patients. Perusal of patient's record file Ex.OP-1,2/9 shows that the patient was admitted on 13.06.2015 and discharged on 14.06.2015. Record further shows that patient was admitted on 13.05.2015 with diagnosis twin pregnancy and B.P. of the patient was mentioned as 170/80 and prior to that report of Lab. Ex.OP-1,2/12 dated 11.05.2015 shows H.B. of the patient as 6.2 Gm. And same was noted on 28.05.2015 and thereafter on investigation by same Lab. on 12.06.2015 H.B. of the patient was 10 Gm. All the tests have got conducted by Dr.Suman. Perusal of treatment record shows that when the patient was having B.P. 170/80 and it was a case to twin pregnancy it was already high risk case which fact is addmitted by the medical board but Dr.Suman decided to carry out the surgery herself in her hospital inspite of fact that there is no evidence that Surjit Hospitla was having facilities to deal with such like high risk cases and when it is proved that there was no facilities or specialist doctors to save the patient in case of emergency it is in itself grave negligence. Perusal of record Ex.OP-1,2/9 shows that in the treatment section time is mentioned as 4.30 P.M. but there is overwriting at two places but it has not been initialed by the operating surgeon which shows that time has been changed to suite the case of operating surgeon. Thereafter at page No.4 of the patient's record file the B.P. is shown as 130/80 at four places and in the last it is mentioned as BP 130/80 and it is further mentioned that patient is suffering from generalized tonic and clonic seizures and if for the sake of arguments it is accepted that Dr.Suman carried out the surgery by following the required procedure and norms of medical science and in the ends when at 6:30 PM, the patient is found to have suffered generalized tonic and clonic seizures which shows that and even admitted by the board that postprtum eclampsia is a serious obstetric complication and can be seriously life threatening even with the standard treatment, even then Dr.Suman had not referred the patient to higher centre and continued with the treatment herself inspite of the fact that Surjit Hospital was not having required system and infrastruture for treating the said patient suffering from postprtum eclampsia which is a serious obstetric complication and can be seriously life threatening even with the standard treatment as addmitted by the medical board and had referred at 7:00 AM i.e. after wasting very precious life saving 12 hours and at the time of referral at 7:00 AM the B.P. of the patient has been shows as 130/80 with the observations sensorium altered which shows that the observation is not written as per standard medical literature. In case of altered sensorium, the B.P. can never be normal as 130/80 as mentioned by Dr.Suman. Perusal of patient's record file shows that after first page of Ex.OP-1,2/9 all the investigations notes had been written by Dr.Suman with same pen and in one go to save herself in case of any medical complication. Although, Dr.Suman has taken plea that she advised referral at 6:30 PM but the patient record file Ex.OP-1,2/9 is totally silent to prove this fact that Dr.Suman had suggested referral at 6:30 PM or that paitent party resisted the same. Even the report of the medical board has also found this fact that the plea of Dr.Suman that patient was referred at 7:00 AM in 108 ambulance with detailed referral slip accompanied with OT Assistant Mr.Mandeep Singh but the board has found that the fact is not confirmed by record of SGRD Hospital which shows that no attendant namely Mr.Mandeep Singh ever accompanied the patient to SGRD Hospital. Moreover, the said fact is also not proved on record by Dr.Suman by placing affidavit of said alleged OT Assistant Mr.Mandeep Singh. We are of the view that although medical board has given opinion that they have found any gross negligence on the part of Dr.Suman but we are of the further view that the delay of 12 hours in referral of the patient to SGRD Hospital which is the nearest higher centre is itself negligence on the part of operating surgeon who is prop. of opposite party No.1. The life of patient Smt.Manpreet Kaur must have been saved, had she been referred to higher centre at 6:30 PM on 13.6.2015 when Dr.Suman noticed generalized tonic and clonic seizures of the patient. We are of view that life of the deceased could had been saved had the patient been referred to higher centre timely without wasting 12 hours. Accordingly, medical negligence/deficiency in service on the part of operating surgeon Dr.Suman Bala is fully proved.
26. Although, it is the plea of the counsel for the opposite party No.1 that the medical board constituted by this Commission has vide its report Ex.AZ given clean chit to opposite party No.1 but we are of the view that it is the duty of the expert to explain technical issues as clearly as possible which can be understood by common man and other function is to assist the Commission in deciding whether the acts or omissions of the medical practitioner or hospital constitute medical negligence. As such the Commission is not bound in every case to accept the opinion of the expert as correct. Moreover, the present case also cannot be dismissed merely by relying upon report Ex.AZ by way of which opposite party No.1 has been exonerated. Even perusal of report Ex.AZ shows that medical board has failed to notice that the treatment record Ex.OP-1,2/9, all the treatment notes and vitals have been mentioned in the hand writing of Dr. Suman with one pen and with single stroke but the board has ignored this fact and failed to collect the notes of nursing staff who had noted the vitals from 6:30 PM on 13.06.2015 to 7:00 AM on 14.06.2015, as it is not the case of the opposite party No.1 that Dr.Suman was present whole night with the patient from 6:30 PM to 7:00 AM on 14.06.2015. The board has not given any opinion that whether the hospital being run by opposite party No.1 was having infrastructure and facility to deal with high risk pregnancy case as involved in the present case in case of emergency and to deal with postprtum eclampsia which is a serious obstetric complication and can be seriously life threatening even with the standard treatment. The medical board has not given any opinion regarding delay in the referral of the patient which avoided timely treatment to the patient. There is no evidence that Dr. Suman remained with the patient in the intervening night of 13.06.2015 to 14.06.2015 and if Dr. Suman was not present, why the board had not collected the investigations and vitals noted by the nurses staff during the night. The medical board has given finding that paitent had not died at opposite party No.1 hospital and died at SGRD Hospital but has not given any reason for the cause of death of the patient at SGRD Hospital at Amritsar. As such there are sufficient reasons to disagree with the report given by the medical board and we are of the view that this Commission is not bound by the report given by the medical board as there is sufficient evidence against opposite party No.1 for having delayed the referral of the patient without any sufficient cause which is resulted in her death at SGRD Hospital. The same view has been expressed by Hon'ble Supreme Court of India in case titled as V.Kishan Rao. Vs. Nikhil Super Speciality Hospital & Another.
27. As far as liability of opposite party No.2 is concerned. Perusal of report of SDM Gurdaspur Ex.OP-1,2/8 shows that Dr.Lakhwinder Singh is posted as surgical specialist at Fatehgarh Churian and was on duty on the day when patient was treated by Dr.Suman who is wife of opposite party No.2 as such complaint against opposite party No.2 is dismissed for lack of evidence.
28. As far as compensation part is concerned. In the prayer clause complainants have made prayer for payment of Rs.5,00,000/- in total on account of mental agony, physical harassment and deficiency in service. We are of the view that although complainants have made prayer for Rs.5,00,000/- from the opposite parties for loss of their mother Smt.Manpreet Kaur who was a young healthy lady who has lost her life for which the minors helpless complainants needs higher compensation than claimed in the complaint but in view of the prayer made in the complaint, the opposite party No.1 is held liable to pay compensation of Rs.5,00,000/- to both the complainants in equal share. Since the opposite party No.1 has placed on record professional indemnity policy issued by opposite party No.3 as such opposite party No.1 can lodge claim with the opposite party No.3 for reimbursement as per the terms and conditions of the policy of insurance after complying with this order.
29. Accordingly, present complaint is partly allowed and opposite party No.1 is directed to pay Rs.5,00,000/- to the complainants as consolidated compensation on account of mental agony, physical harassment, deficiency in service which resulted in untimely death of patient Smt.Manpreet Kaur. Opposite party No.1 shall comply with the order within 30 days from the date of receipt of copy of this order. However, it is made clear that if the order is not complied with within 30 days by opposite party No.1, then the above referred amount of Rs.5,00,000/- shall carry interest @ 9% P.A. w.e.f. 14.06.2015 i.e. the date of death of Smt.Manpreet Kaur till realization. The amount to be deposited by the opposite party No.1 shall be deposited in the shape of Fixed Deposit in the name of minor complainants in equal share till the age of maturity. However, the grandfather of the minor complainants shall be entitled to receive interest on the said amount for welfare, up bringing and study of the minor complainants.
30. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
31. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Feb. 26, 2024 Member.
*YP*
