DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 445 of 22-07-2014

Decided on 17-06-2015

Ex.Hav Nachattar Singh, aged about 60 yeas, S/o Sh. Kapoor Singh, R/o Ward No. 12, Backside Truck Union, Bhucho Mandi, Bathinda.

…...Complainant

Versus

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

Dr. Naresh, Adesh Institute of Medical Sciences & Research, Bathinda-Barnala G.T. Road, Bhucho Kalan, District Bathinda, now reisdent of Shakti Nagar, Goniana Mandi, Tehsil & District Bathinda.

.......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 Opposite Party No. 1

Opposite party No. 2 exparte

O R D E R

M. P. Singh Pahwa, President

This complaint has been filed by Ex. Hav.Nachattar Singh, complainant against Adesh Institute of Medical Sciences & Research and others, (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 he is an Ex-servicemen. He remained Havaldar in Military and was enjoying Ex-Servicemen Contributory Health Scheme under ECHS Polyclinic, Bathinda having ECHS Card No. JP0071284. It is revealed that complainant was suffering from acute pain in his abdomen for which he underwent clinical tests from Military Hospital, Bathinda. He was diagnosed as a case of 'Cholelithiasis'. He was referred by Military Hospital, Bathinda to Adesh Institute of Medical Sciences & Research (here-in-after referred as 'Adesh Insitute') for operation as the said hospital is on the panel of Military Hospital, Bathinda. Accordingly, the complainant was got admitted in the said hospital and was operated for illness by opposite party No. 2. He 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, as a result of which he suffered infection in his abdomen. He was again admitted in this hospital i.e. Adesh Institute and again took treatment from the opposite parties. However, the complainant could not be cured from the problem of infection. Ultimately, he was referred to CMC & Hospital, Ludhiana, where he was got admitted and he has been taking regular treatment. He remained confined to bed for about six months.

It is alleged that due to blunder mistake on the part of the opposite parties in performing their duties and giving treatment to the complainant, he suffered great mental tension, agony, botheration, harassment and physical loss. The complainant also suffered financial loss to the tune of Rs. 1.00 Lac on account of transportation charges, medicines, attendants and special diet etc., He is also running a small Karyana Shop in his house. He suffered loss of Rs. 50,000/- on account of loss of stock besides the loss of income from the said shop.

It is alleged that there is gross deficiency in service on the part of opposite parties and opposite parties have also adopted unfair trade practice.

On this backdrop of facts, the complainant claims compensation to the tune of Rs. 5,00,000/- and Rs. 11,000/- as litigation cost.

Upon notice, opposite party No. 1 put in appearance through counsel and contested the complaint by filing written version. In written version, opposite party No. 1 raised legal objections that complaint is not maintainable as complainant is not consumer; complainant has not come to this Forum with clean hands and has not disclosed the material facts.

On merits also, opposite party No. 1 controverted all the material averments. It is admitted that complainant was referred by Military Hospital, Bathinda, to opposite party No. 1 where he was treated by opposite party No. 2. It is further stated that complainant was satisfactorily discharged. The treatment of the complainant was successfully done and he was discharged in good and healthy condition. It is also asserted that no mistake has been committed by opposite party No. 1 or opposite party No. 2 in the treatment and the treatment was done as per the set medical standard and procedure. There is no deficiency in service or unfair trade practice on the part of the opposite parties. The opposite party No. 1 prayed for dismissal of complaint.

The opposite party No. 2 did not turn up despite service through proclamation. As such, exparte proceeding were taken against opposite party No. 2.

Both the parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit Ex. C-1 and the documents Ex. C-2 to Ex. C-91 which includes copies of bills (Ex. C-2 to Ex. C-39), copy of ultrasound report (Ex. C-41), Referral Form (Ex. C-42), Medical Case Sheet (Ex C-45), copy of Discharge Summary (Ex. C-48), copies of Out Patients Prescription Slips (Ex. C-79 to Ex. C-82) and copies of test reports (Ex. C-83 to Ex. C-86).

In order to rebut the claim of complainant, opposite party No. 1 tendered into evidence copy of authority letter Ex. OP-1/1, copy of medical record Ex. OP-1/2 and affidavit of Dr. Hitesh Ex. OP-1/3. Opposite party No. 1 has also submitted written submissions.

We have heard learned counsel for the parties and gone through the record and written submissions of opposite party No. 1.

It is submitted by learned counsel for complainant that complainant was referred to opposite party No. 1 by Military Hospital, Bathinda, vide referral form Ex. C-42. Moreover, this fact is not disputed by opposite party No. 1. OP-1/2 is the treatment record of the complainant. It proves that complainant was admitted on 11-11-13 and discharged on 14-11-13. This record also proves that complainant was operated upon. Operation notes proves this fact. This document also proves that operation was conducted by Dr. Naresh, opposite party No. 2.

The case of complainant is that doctor was negligent in conducting operation and complainant suffered infection due to negligence of the opposite parties. Ofcourse complainant was discharged on 14-11-13 after operation. The complainant has also placed on record other documents. Ex. C-45 proves that even after four months of operation, complainant was having Serosanganinous discharge epigastric port and wound inflammation. Ex. C-53 proves that complainant was still being treated for the same wound and complainant got treatment from the opposite parties since 17-2-14. Ex. C-54 to Ex. C-57 prove this fact. When the opposite parties failed to cure the complainant, he got treatment from CMC & Hospital, Ludhiana. The bills Ex. C-2 to Ex. C-39 proves that complainant has to spent lot of money for taking treatment. This medical evidence proves that opposite parties have not provided proper service. Medical record Ex. OP-1/2 proves that operation was conducted by Surgeon Dr. Naresh, but he has not dared to contest the claim of the complainant. As such, adverse inference is to be drawn for this reason also. Complainant has suffered physically, mentally and financially. He has also suffered loss of his earnings. As such, complainant is entitled to claimed compensation to the tune of Rs. 5.00 Lacs besides Rs. 11,000/- as litigation expenses.

On the other hand, learned counsel for opposite party No. 1 has submitted that complainant has not levelled specific allegation regarding any negligence on the part of the opposite parties. The complainant was operated upon in November, 2013 i.e. 12-11-13. This complaint has been filed on 22-7-14. In case there was any negligence on the part of the opposite parties, the complainant was immediately to report this fact. The complainant has simply mentioned that he suffered from infection after operation and he was again treated for this infection, but there is no expert evidence to prove that any infection was suffered by complainant. There is no expert evidence to prove that infection was due to any negligence in performing operation by opposite party No. 2. Mere allegation levelled by the complainant cannot take place of evidence. In the absence of any expert evidence, medical negligence cannot be proved.

It is further submitted by the learned counsel for opposite party No. 1 that after operation, complainant was discharged on 14-11-13 and he visited opposite parties for routine dressing till March, 2014. He never complained regarding any alleged problem. No other disease was diagnosed during those days. Ofcourse complainant has placed on record slips issued by CMC & Hospital, Ludhiana, but no doctor of that hospital has been examined to prove that complainant suffered any infection due to negligence of opposite parties. In such circumstances, complainant is not entitled to any compensation.

In support of his submission, learned counsel for the opposite party No. 1 has also cited 2010 (1) CPJ 29 (SC) in case titled Kusum Sharma & Ors. Vs. Batra Hospital & Medical Reseasrch Centre & Ors.

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 him 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.”

16 In the light of above observations of the Hon'ble Apex Court, it is to be seen if medical negligence on the part of the opposite parties is proved or not. It is well settled that complainant has to prove his case by affirmative evidence. The complainant has also to plead facts leading medical negligence on the part of the opposite parties. In this case, the only allegations of the complainant are that he was suffering from acute pain in his abdomen and he underwent clinical test from Military Hospital, Bathinda. He was diagnosed as a case of 'Cholelithiasis' and he was referred to 'Adesh Institute', wherein he was operated for illness by opposite party No. 2 and ultimately, discharged from the hospital. The complainant has also alleged that opposite party No. 2 failed to operate complainant properly due to which he suffered infection in his abdomen. He again took treatment from opposite party No. 2 but he could not be cured from the problem of infection and ultimately, he was referred to CMC & Hospital, Ludhiana, from where he got regular treatment. Therefore, from these contents, it is made out that complainant has not specified any negligence on the part of the opposite parties.

In the case Kusum Sharma Vs Batra Hospital (Supra) , it was also observed that negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Now, it is to be seen that complainant has been able to prove negligence from other evidence on record although not specifically pleaded in the complaint. Ofcourse, complainant has brought on record number of documents. Ex. C-2 to Ex. C-9 are photocopies of bills. Ex. C-40 is identity card. Ex. C-42 is referral form. Ex. C-43 is ECHS patient detail. Ex. C-45 is medical case sheet. Ex. C-46 is referral form and Ex. C-48 is discharge summary. Other documents are also formal. The material documents are only medical case sheet (Ex. C-45) and discharge summary (Ex. C-48). From medical case sheet Ex. C-45, it is revealed that patient is operated case of Lapchole 4 months back from AIMSR (opposite party No. 1). While discharge patient was having Serosanganinous discharge eipgestic port and wound inflammation present. Patient wanted to consult Surgical Specialist and he was referred to Surgical Specialist.

Upon perusal of this case history, nothing is made out to constitute any medical negligence on the part of the opposite parties. Ex. C-48 is the discharge slip issued by CMC & Hospital, Ludhiana. By this document also, the final diagnosis mentioned was recurrent wound infection of laparoscopic port site (epigastrium). In the column of operative findings, it is mentioned “About 5x3 cm oval section excised with infected port site. No pus or foreign body seen in wound.” and condition on discharge is mentioned as 'Satisfactory'. Therefore, from this document also, it is not made out that there was medical negligence on the part of the opposite parties. The complainant has not examined any expert to prove any fault with the opposite parties regarding treatment given to complainant. In these circumstances, the opposite parties can not be held deficient in service only for the reason that complainant was not fully cured from their Institute.

As discussed above, the complainant has failed to establish medical negligence on the part of the opposite parties by placing cogent and convincing evidence on file. Hence this complaint fails and is hereby dismissed with no order as to 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 :

17-06-2015

(M.P.Singh Pahwa )

President

(Sukhwinder Kaur)

Member

(Jarnail Singh )

Member