DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 378 of 18-06-2014

Decided on 23-06-2015

Bhinderjit Kaur w/o Ex. Hav. Jaswant Singh, R/o Ward No. 12, Backside Truck Union, Bhucho Mandi.

…...Complainant

Versus

Adesh Institute of Medical Sciences & Research, Bathinda – Barnala G.T. Road, Bhucho Kalan, District Bathinda through its MD/Chairman/ Authorized Person

Dr. Puneet, Adesh Institute of Medical Sciences & Research, Bathinda-Barnala G.T. Road, Bhucho Kalan, District Bathinda.

The New India Assurance Co. Ltd., Near General Bus Stand, Hissar Road, Sirsa (Haryana), through its D.M.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh. Pahwa, President

Smt. Sukhwinder Kaur, Member

Sh. Jarnail Singh, Member

Present :

For the Complainant : Sh. Kuljit Pal Sharma, counsel for complainant.

For the opposite parties : Sh. Rohit Jain, counsel for OP No. 1

Sh. Lalit Garg, counsel for OP No. 2

Sh. Vinod Garg, counsel for OP No. 3.

O R D E R

M.P.Singh Pahwa, President

Bhinderjit Kaur, complainant has filed this complaint against Adesh Institute of Medical Sciences & Research. Bathinda and others (here-in-after referred to as “opposite parties”) under Section 12 of the consumer Protection Act, 1986 (here-in-after referred to as 'Act').

Briefly stated, the case of the complainant is that her husband remained Havaldar in Military, so she was enjoying Ex-serviceman Contributory Health Scheme under ECHS Polyclinic, Bathinda. It is alleged that complainant was suffering from acute pain in her abdomen for which she undergone clinical tests from Military Hospital, Bathinda and diagnosed as a case of “Cholelitiasis”. She was referred by Military Hospital, Bathinda to Adesh Institute of Medical Sciences & Research (here-in-after referred to as “Adesh Institute), as it is on the penal of Military Hospital, Bathinda. Accordingly, the complainant was got admitted in the said hospital (opposite party No. 1). She was operated for the illness by opposite party No. 2 and was ultimately discharged from the hospital for which the entire payment was made to opposite party No. 1 by Military Hospital, Bathinda.

It is alleged that opposite party No.2 failed to operate the complainant properly and to provide proper stitches, as a result of which the complainant suffered from infection in the abdomen. The complainant was again got admitted in the hospital of opposite party No. 1 and got treatment. She has been regularly visiting the hospital from time to time but could not be cured from the problem of infection. Ultimately, the complainant took treatment from Rajpal Hospital, Ganesha Basti, Bathinda.

It is alleged that due to blunder mistake of opposite parties in performing their official duties and giving treatment to the complainant, she suffered from great mental tension, agony, botheration, harassment and physical loss, because of performing major operations twice. She also suffered huge financial loss to the tune of Rs.50,000/- on account of transportation charges, medicines, attendants and special diet etc . As such the complainant is entitled for compensation from the opposite parties.

The complainant also pleaded that she got issued legal notice dated 8-5-2013 upon the opposite parties through Sh. Kuljit Pal Sharma, Advocate, calling upon them to compensate the complainant to the tune of Rs. 3,00,000/-, within the period of 15 days from the date of receipt of notice but the opposite parties, instead of making payment got issued reply to the notice on 20-5-14 through Sh. H S Verma & Arun Bara, Advocates on the basis of totally false facts. Two days back, the opposite parties have flatly refused to accede to the request of complainant.

The complainant alleged that there is gross deficiency in service on the part of the opposite parties and that the opposite parties have adopted unfair trade practice. On this backdrop of facts, the complainant has claimed compensation to the tune of Rs. 3,00000/- in addition to Rs. 11,000/- as cost of litigtion.

Upon notice, opposite parties appeared through their respective counsel and contested the complaint by filing separate written versions. In written version, opposite party No. 1 raised legal objections that complaint is not maintainable as complainant is not consumer qua opposite parties; complainant has not come to this Forum with clean hands and has not disclosed the material facts; the complainant herself is negligent and did not disclose true facts to the treating doctor i.e. opposite party No. 2.

On merits also, opposite party No. 1 controverted all the material averments. However, it is admitted that complainant was operated by opposite party No. 2. It is further asserted that complainant was operated as per well settled practice and procedure of the medical field. The treating doctor i.e. opposite party No. 2 is well qualified, well experienced and opposite party No. 1 is well equipped medical institute. The complainant was properly treated and satisfactorily discharged without any complication or complaint on behalf of the complainant. The complainant was operated after obtaining the written consent from her and all the intra and post operative problems related to the treatment were conveyed to her by the treating doctor. The complainant is a obese patient. She was referred to the institute of opposite party No. 1 for “Cholecystectomy” which was satisfactorly done by opposite party No. 2. During the post operative OPD visits, seropurulent discharge was noted from the wound, which is superficial wound infection and not an infection of the abdomen. This surgical site infection is a known complication for the above said surgery, more so in the obese patients. During one of the post operative OPD visit, the complainant disclosed about the treatment, she is taking for mouth ulcer from DMC & H, Ludhiana, since past few months. On checking the details of DMC & H, Ludhiana Card (Dermatology Deptt) the opposite party No. 2 came to know that the complainant had been taking steroids for the last few months and was also taking steroids before the time of surgery and this fact was concealed by the complainant from opposite party No. 2 at the time of admission. The use of steroids makes a person immunocompromised which itself is a risk factor for the surgical site infection and delayed wound healing. 100% guarantee of cure by the treatment of opposite party was never given to the complainant nor it can be given to any patient. Curing of a patient depends on number of factors apart from the treatment by the doctor. The body structure of the patient, the post operative care by the patient, the medicines, the diet and the hygiene are the various crucial factors upon which the curing of the patients depends. In these above mentioned factors, the doctor is helpless and cannot interfere and can only give suggestions to the patient. It is further pleaded that it was duly conveyed to the patient/complainant. The duty of the doctor is to treat the patient as per the well established medical standards and procedures which were duly followed by the treating doctor i.e. she was already undergoing treatment for mouth ulcer from DMCH, Ludhiana, and was already taking medicines for that treatment. It was the material fact which was not disclosed to the treating doctor and which really affected the curing of the complainant. All the material averments are categorically denied by opposite party No. 1. In the end, opposite party No. 1 prayed for dismissed of complaint.

The opposite party No. 2 in his written version, also raised legal objections that complainant is not consumer as defined under Section 2 of the 'Act' qua opposite party No. 2 as she has not paid any consideration to him for services availed by her; that complaint is bad for mis-joinder of parties and non-joinder of necessary parties; that complaint is false, malafide and not sustainable as the complainant has concealed the material facts. Other legal objections are that complicated questions of law and facts are involved which can only be decided by leading elaborate evidence in civil court, as such, this Forum has no jurisdiction to try and decide the complaint. That complainant has not been able to prove any negligence against opposite party No. 2 and complainant has no locus standi and cause of action to file the complaint; complaint is not maintainable and complainant is stopped from filing the complainant by her own act and conduct. The opposite party No. 1 has also reproduced the pre-operative and post-operative orders qua complainant recorded at the time of her arrival in the hospital, the reference of which is not considered relevant at this stage.

On merits also, opposite party No. 2 has controverted all the material averments. In substance, the opposite party No. 2 has also pleaded the version as taken up by opposite party No. 1 and prayed for dismissed of complaint.

The opposite party No. 3 in its written version also raised legal objections questioning the territorial jurisdiction of this Forum and maintainability of complaint against opposite party No. 3. It is also pleaded that questions of law and facts are involved which require voluminous documents and evidence, which is not possible in summary procedure under the 'Act'. That complainant has concealed the material facts and documents from this Forum, therefore, she is not entitled to any relief; That complaint is bad for non-joinder of necessary parties. That opposite party No. 2 has violated the terms and conditions of respective policy, therefore, opposite party No. 3 is not liable to pay any compensation at all; That complainant has not produced any expert evidence to prove any negligence of opposite parties No.1 & 2. That amount of compensation claimed is highly excessive and exorbitant one. Even otherwise, opposite party No. 3 is not liable to pay any amount and that the complaint is false and frivolous. It is also stand of opposite party No. 3 that it has no privity of contract nor any liability qua the acts of opposite party No. 1 or any of its employee. Oposite party No. 2 in his reply to legal notice has admitted that he was working as Assistant Professor in the Department of General Surgery of opposite party No. 1. There is no insurance coverage of opposite party No. 2 in his said capacity as employee of opposite party No. 1.

On merits also, opposite party No. 3 controverted all the material averments and prayed for dismissal of complaint.

The parties were afforded opportunity to produce evidence. In support of her claim, complainant has tendered into evidence her affidavit (Ex. C-1) ; copy of legal notice and its reply (Ex. C-2 & Ex. C-3), copies of prescriptions (Ex. C-4 to Ex. C-8 & Ex. C-24) ) and copies of retail invoices/bills (Ex. C-9 to Ex. C-23).

In order to rebut this evidence, opposite party No. 1 has tendered into evidence copy of authority letter (Ex. OP-1/1), copy of discharge slip (Ex. OP-1/2) and affidavit of Dr. Debashis Goswami dated 12-12-14 (Ex. OP-1/3).

Opposite party No. 2 has tendered into evidence affidavit of Dr. Puneet Garg dated 4-2-15 (Ex. OP-2/1) and copy of complete medical record (Ex. OP-2/1).

Opposite party No. 3 has tendered into evidence affidavit of Sh. Ashwani Kukkar (Ex. OP-3/1), copies of Insurance policies (Ex. OP-3/2 and Ex. OP-3/3), copy of proposal form (Ex. OP-3/4) and copy of letter dated 13-1-14 (Ex. OP-3/5).

Complainant, opposite party No. 1 and opposite party No. 3 also submitted written arguments.

We have heard learned counsel for the parties and gone through the record and written submissions of the parties.

In written arguments, the complainant has simply mentioned that her complaint, affidavit and the documents placed on record be treated as part of her arguments. However, it is further submitted by the learned counsel for complainant that material facts are not in controversy. It is not disputed that complainant was operated at the hospital of opposite party No. 1 by opposite party No. 2. The complainant has alleged that her treatment was in a negligent manner due to which she suffered infection in her wounds. The complainant also got issued legal notice before filing this complaint. The reply of opposite party No. 2 is on the file as Ex. C-3. The opposite parties are not disputing the facts mentioned in written reply by opposite party No. 2 and this reply itself proves the allegation of complainant. It is submission of learned counsel for complainant that opposite party No. 1 has admitted that seropurulent discharge was noted from the wound. This admission itself proves that wounds were infected and this fact also proves that treatment was not properly given by opposite parties and they were negligent in providing treatment to the complainant. The complainant has also brought on record prescription slip Ex. C-4 as well as Ex. C-24. Both these prescription slips are of dated 21-4-2014. Ofcourse in Ex. C-4 further treatment is not mentioned but in Ex. C-24 it is mentioned that patient came with wound gaping after cholecystectomy and her stitches were re-sutured. This fact further proves that complainant was to get stitches re-sutured only due to negligence of opposite party No. 2. This Forum can take due notice that the complainant has suffered mentally and physically due to delay in cure and due to re-suture. The complainant has also spent money for re-suturing. In such circumstances, complainant is entitled to compensation to the tune of Rs. 3.00 Lacs.

On the other hand, learned counsel for opposite parties No. 1 & 2 have submitted that complainant has firstly to allege any particular/specific negligence and then to prove medical negligence by producing cogent and convincing evidence but the complainant has failed in both counts. The only allegations levelled by complainant are that complainant could not be cured from the problem of infection and ultimately, she took treatment from Rajpal Hospital, Bathinda. Of course in earlier part of complaint, the complainant has also alleged that she suffered great mental tension, agony, botheration etc., due to performing major operations twice (one after other), but the complainant has not brought any medical evidence regarding second operation. Therefore, this fact itself shows that false allegation has been levelled by the complainant with the motive to extort money.

It is further submitted by learned counsel for the opposite parties No. 1 & 2 that infection can occur due to various reasons which includes body structure of the patient, post operative care, medicines, diet and hygiene which are also crucial factors upon which curing of the patient depends. Even otherwise categorical stand of the opposite parties is that during OPD, complainant disclosed that she was taking treatment for mouth ulcer from DMC&H, Ludhiana since past few months. It was also found that complainant was taking steroids for the last few months before the time of surgery. The use of steroids makes a person immuno-compromised which itself is a risk factor for the surgical site infection and delayed wound healing. The complainant has no where denied these facts in her affidavit or otherwise. In these circumstances, it is to be inferred that complainant was taking steroids for treatment of her mouth ulcer. Further submission of learned counsel for opposite parties No. 1 & 2 is that it was only due to the aforesaid reasons, the wound suffered infection, so it cannot be concluded that opposite parties were negligent in performing their duty. More so, it was not disputed that opposite parties No. 1 & 2 are well qualified and competent to perform surgery.

To support these submissions, learned counsel for opposite parties No. 1 & 2 have cited 2010 (1) CPJ 29 (SC) in case titled Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors.

Learned counsel for opposite party No. 3 submitted that opposite party No. 3 has been unnecessarily dragged into litigation. It is admitted case of opposite party No. 2 that at the time of providing treatment, he was employee of opposite party No. 1 at Bathinda. Copy of policy (Ex. OP-3/2) reveals that this policy was individual policy and the address of premises was mentioned at Sirsa. Therefore, if any compensation is awarded for negligence on the part of opposite party No. 2, the Insurance Company (opposite party No. 3) is not liable to indemnify for opposite party No. 2.

We have carefully gone through the record and have considered the rival contentions.

The case of complainant is that the opposite parties were negligent in providing her medical treatment. In case of Kusum Sharma (Supra), Hon'ble Apex court has observed that while deciding whether medical professional is guilty of medical negligence, following well known principles must be kept in view :-

(I) Negligence is 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.

(ii) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgement.

(iii) The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

(iv) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

(v) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

(vi) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desire result may not amount to negligence.

(vii) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

(viii) It would not be conducive to the efficiency of the medical procession if no Doctor could administer medicine without a halter round his neck.

(ix) It is our bounden duty and obligation of the civil society to ensure that the medical professional are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

(x) The medical practitioners at times also have to be saved from such a class of complaints who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

(xi) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”

It is well settled that in order to claim compensation, the complainant is required to allege specific negligence on the part of treating doctor who had provided treatment. In the case in hand, the only allegations of the complainant are that she was operated by opposite party No. 2 at the institute of opposite party No. 1. It is simply alleged that opposite party No. 2 failed to operate the complainant properly and to apply proper stitches as a result of which, complainant suffered infection in her abdomen. There is no evidence to prove medical negligence on the part of opposite party No. 2. Even otherwise, complainant is required to prove her case by affirmative evidence. The complainant has placed on record copies of prescriptions Ex. C-4 & Ex. C-34 to prove that she took treatment from Rajpal Hospital, Bathinda. Ex. C-4 and Ex. C-24 are copies of same prescription slip only with the difference that in Ex. C-24 it is further mentioned that 'patient came with wound gaping after cholecystectomy. Re-suturing done”. There is nothing to show that there was any infection and if any infection was there, that was due to negligence in previous treatment.

The matter can be examined from another angle also. As per pleading of opposite parties No. 1 & 2 coupled with reply to legal notice given by opposite party No. 2, categorical stand of opposite parties is that during OPD, complainant disclosed that she was suffering from mouth ulcer and taking treatment from DMC&H, Ludhiana, and it was also found that complainant was taking steroids even during the time of surgery. As per 'The American Journal of Surgery (2013)', in patient taking chronic corticosteroids for at least 30 days before surgery, their rates of wound complications may be increased 2 to 5 times compared with those not taking corticosteroids. Complication rates may vary depending on dose and duration of steroid use, comorbidities and types of surgery. Therefore, taking of steroids can also be a factor of delay in wound healing/curing.

Hon'ble National Commission, New Delhi in the case 2010 (1) CPR 49(NC) Suresh Jain Vs. Dr. Mukesh Jain and Others, has observed that :-

“Doctors cannot be held responsible for the negligent acts of patients who are adamant and decide on their own as to what to do and when to take the treatment and do not follow the instructions given to them by the treating doctors”.

Thus, keeping in view the facts, circumstances and the record produced on file by the parties, this Forum is of the considered view that the opposite parties No. 1 & 2 have acted in accordance with practice accepted as proper by responsible body of medical man skilled in that particular art while treating the complainant. The complainant has failed to establish medical negligence/deficiency in service on the part of opposite parties. Accordingly complaint fails and is hereby is dismissed. Parties are left to bear their own costs.

The complaint could not be decided within the statutory period due to heavy pendency of cases.

Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

Announced :

23-06-2015

(M.P.Singh Pahwa )

President

(Sukhwinder Kaur)

Member

(Jarnail Singh )

Member