Punjab

StateCommission

FA/12/260

Singla Neurology Clinic - Complainant(s)

Versus

Ashish Kumar - Opp.Party(s)

Ashwani Talwar

24 Feb 2015

ORDER

                                                            2^nd Additional Bench

 

PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 260 of 2012

                                                           

                                                          Date of institution:   05.03.2012

                                                          Date of decision    :  24 .02.2015

 

1. Singla Neurology Clinic through its proprietor, Dr. Gaurav Singla, Bhatti Road, Bathinda (Punjab).
2. Dr. Gaurav Singla, Consultant Neurologist, Singla Neurology Clinic, Pragma Hospital Campus, Bhatti Road, Bathinda (Punjab)
3. United India Insurance Company Limited through its Divisional Manager, 54, Janpath, New Delhi 110001

…..Appellants

                                      Versus

 

1. Ashish Kumar aged about 16 years through his natural guardian and father Sh. Harjit Singh, Resident of 281, Patel Nagar, Bathinda.
2. Pragma Hospital, Bhatti Road, Bathinda (Punjab) through its Managing Director.

                             …..Respondents

 

First Appeal against the order dated 16.01.2012 passed by the District Consumer Disputes Redressal Forum, Bathinda.

Before:-

 

          Sh. Gurcharan Singh Saran, Presiding Judicial Member

          Sh. Jasbir Singh Gill, Member       

          Sh. Harcharan Singh Guram, Member

 

Present:-

 

            For the appellants                  Sh. Rahul Sharma, Advocate for

                                                           Sh. Ashwani Talwar, Advocate                                          \

       For respondent No. 1                 None

      For respondent No. 2                 Sh. Subhash Chand, Advocate for

                                                         Sh. Vaibhav Narang, Advocate

 

 

         

GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER

 

                                     

                   The appellants/opposite parties No. 2 to 4 (hereinafter referred as ‘OPs’) have filed this appeal  under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) against the order dated 16.01.2012 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in short the 'District Forum') in CC No 153 of 11.04.2011 vide which the complaint filed by the respondent No. 1/complainant (herein after called the “complaint”) was allowed with the direction to OP No. 3 to pay Rs. 20,000/- as compensation to Harjeet Singh, natural guardian of the complainant and OPs No. 2 & 3 were also to pay costs of Rs. 5000/- within the period of 45 days from the pronouncement of the order by the District Forum.

2.                The complaint was filed by the complainant against the OPs on the allegations that OP No. 2 is a private hospital being run by OP No. 1 and OP No. 3 was working as neurologist in the said hospital.  The complainant was mentally feeble but doing his routine work and all of sudden, he felt shivering in his body in the last week of November, 2010.  The father of the complainant, after seeing the advertisement regarding multi speciality of this hospital, went to OP No. 3      who after check up of the complainant advised to take medicines, capsules Betacap TR (407) for ten days.  On 16.12.2010, he again visited OP No. 3 and he again repeated capsules Betacap TR 80 mg tablet for seven days, but complainant did not get any relief.  On 10.02.2011, he again visited OPs for further consultation and OPs prescribed tablets Mysoline 250 mg for 10 days without disclosing any disease or problem.  The complainant again visited the OPs with the same problem but OPs again prescribed medicines for 20 days and under forced circumstances, he took the medicines with the hope that he would get some relief.  He again visited the OPs on 05.02.2011 and OPs prescribed the same medicines Mysoline 250 mg with enhanced quantity for 20 days.  However, there was no sign of any improvement in the condition of the complainant rather it become critical and OPs refused to entertain the patient and advised the father of the complainant to get the treatment of the complainant from DMC Hospital, Ludhiana.  The father of the complainant asked OP No. 3 to give the referral letter but his request was not acceded to.  Thereafter, the father of the complainant went to DMC and consulted Dr. Birender Singh vide CR No. 2011-35098 who after check up write down the problem as cerebral palsy and recorded no history of seizure, epilepsy and headache and advised medicines for three weeks and told the patient that wrong treatment was given at Bathinda for epilepsy and he stopped all the medicines prescribed by OP No. 3.  After getting the medicines as prescribed by the doctor of DMC, the complainant got relief from shivering, however, due to wrong medicines prescribed by OPs, the complainant was still suffering from ill health and weakness etc.  The father of the complainant came to know that OPs were giving the medicines for epilepsy and headache without disclosing anything to the complainant, whereas the complainant was never the patient of epilepsy or having any headache.  The OPs intentionally concealed the diagnosis from the complainant that was the reasons the OPs did not refer the disease/problem in the OPD slip which amounts a clear cut deficiency in services on the part of the OPs.  It was the professional duty of the doctor to diagnose the problem and then advise the patient regarding the disease and further to explain the risk involved in the disease.   Due to wrong, negligent and callous treatment given by OPs to the complainant, he suffered a lot of physical pain and mental suffering.  The complaint was filed with the directions to OPs to pay Rs. 9 lac as compensation to the complainant on account of mental as well as physical suffering, Rs. 9000/- which was spent by the complainant on the treatment at DMC hospital or any additional or alternative relief.

3.                The OPs filed written reply.  OP No. 1 in its written reply, took preliminary objections that the complaint has been filed against Dr. Gaurav Singla to which respondent No. 1 had no concern and he was intentionally dragged in this litigation.  Neither the patient was admitted in the hospital of respondent No. 1 nor any of concern with the doctor who had given any treatment to the complainant.  No doubt that Singla Neurology Centre is located in the premises of respondent No. 1 but technically it has a different management, therefore, the complaint filed against respondent No. 1 was without any merit and it be dismissed.

4.                OPs No. 2 and 3 filed joint written reply taking preliminary objections that the complaint was wholly misconceived, groundless, frivolous, and vexatious and scurrilous, filed just to harass, defame and extort illegal money from OP No. 3.  There was no specific, scientific and justified allegations with regard to the negligence and deficiency in providing the services to the complainant.  There was no expert opinion on the record as per the law settled by Hon’ble Supreme Court in case “Martin F D’Souza Vs. Mohd. Ishfak”.  There was no medical literature to support the allegations of the complainant.  There was no cause of action for the complainant to file this complaint.  The complaint was bad for non joinder of necessary parties when respondent No. 3 was insured with United India Insurance Company Ltd. Vide professional policy number 0404100/46/09/35/00004373 for the period from 05.01.2010 to 04.01.2011.  Respondent No. 3 is well reputed and qualified doctor having qualification as MBBS from Govt Medical College, Patiala, MD Medicine from DMC, Ludhiana, Doctor of Medicine (DM) (Neurology) from University of Delhi and duly registered with Punjab Medical Council, Chandigarh vide registration No. 30950.

5.       In the factual matrix, it was submitted that patient Ashok Kumar, aged 15 years was examined by OP No. 3 on 04.12.2010 and it was the case of cerebral palsy.  The patient was having tremors in both upper limbs.  On examination he was found to have postural tremors.  It was so explained to the father of the complainant Cap Betacap TR 40 mg for 10 days was prescribed which is a sustained release preparation of propranolol which is beta adrenergic blocker drug.  Beta blockers are one of the two most commonly used drugs for treating Essential Tremors. Since the patient was not hospitalized or admitted there, no further investigation was conducted and later on the doses of propranolol was enhanced from 40 to 80 mg per day.  However the patient was not diligent in follow up visits.  On 05.02.2011, he was asked to come on 07.02.2011 but he came on 10.02.2011 and the patient alongwith his father reported that there was absolutely no benefits with propranolol and requested for alternative medication.  Then OP No. 3 prescribed him tablet Mysoline 31.25 mg at bedtime.  Mysoline is formulation of primidone manufactured by Nicholas.  Primidone is one of the two commonly used drugs in Essential Tremor.  The patient again visited on 23.02.2011 for review and patient was told to gradually increase the dose of primidone to 62.5 mg per day and subsequently to 125 mg per day.  The patient again visited OP No. 3 on 05.03.2011 and dose of primidone was increased with the hope of benefit of the treatment.  On merits, it has been admitted that respondent No. 2 is a clinic being run by respondent No. 3. The patient approached OP No. 3 and treatment was prescribed by Op No. 3.  The averments stated above in the preliminary objections and factual matrixes were retreated. It was stated that the medicines were prescribed according to the medical standard and medical literature.  There was no report of critical condition of the patient on the record maintained by DMC, hospital.  Whereas, Dr. Birinder Singh had mentioned the same diagnosis of cerebral palsy and postural tremor and recommended tablet Ciplar LA 40 mg to be increased to 60 mg per day.  Ciplar LA is the sustained released preparation of propranolol manufactured by Ciplar.  It was the same medicine as prescribed by OP No. 3.  The father of the patient specifically requested respondent No. 3 not to write down the diagnosis on prescription pad as it could be mentally disturbing for his whole family to read the diagnosis of cerebral palsy & tremors on prescription pad.  This fact further indicated that the patient was quite comfortable during that period after taking the medicines prescribed by OP No. 3.  It was highly unfortunate for OP No. 3 but fortunate for the patient that he got immediate relief from the same medicine when prescribed by doctor at Ludhiana.  In case, any medicine did not have any effect upon the patient, it was not a case of medical negligence.  Ultimately, it was submitted that there was no merit in the complaint and it be dismissed.

6.       Respondent No. 4 in its written statement had stated that G.S. Gill owner/proprietor of  Pragma Hospital and Dr. Gaurav Singla, respondent No. 3 were insured with this company, during the period, patient Ashish Kumar was treated by OP No. 3 on 04.12.2010 and the standard terms and conditions with its exclusion clauses of this policy were applicable in the present case. Otherwise, OP No. 4 accepted the written statement filed by respondent No. 1 & 3.

7.       Parties were given opportunity to adduce evidence in support of their contentions.

8.       Complainant tendered into evidence affidavit of Harjeet Singh dated 07.04.2011 Ex. C-1, photocopy of treatment Ex. C-2, photocopy of OPD card Ex. C-3, Additional affidavits of Harjit Singh dated 26.09.2011 Ex. C-4, affidavit of Urmila dated 26.09.2011 Ex. C-5, photocopy of I.Q. Assessment report and closed the evidence.

9.       On the other hand, OPs tendered into evidence photocopy of insurance policy Ex. R-1, photocopy of certificates Ex. R-2, photocopy of pages of Medical literature Ex. R-3 to Ex. R-5, affidavit of Dr. Gaurav Singla, M.D., dated 04.08.2011 Ex. R-6, affidavit of Gursewak Singh Gill Prop dated 04.08.2011. Ex. R-7 affidavit of Gaurav Singla dated 04.08.2011 Ex. R-8, affidavit of Sh. Sures Chand Jangla, A.M. dated 14.09.2011 Ex. R-9, affidavit of Dr. Gursewak Singh Gill prop. Dated 08.09.2011 Ex. R-10, affidavit of Dr. Rajinder Kumar Bansal, DM dated 08.09.2011 Ex. R-11, affidavit of Dr. Gaurav Singla, Prop. Dated 11.04.2011 Ex. R-12, affidavit of Sh. Jagtar Singh, Technician dated 08.09.2011 Ex. R-13, affidavit of Sh. Birinder Singh Paul DM dated 08.09.2011 and closed the evidence.

10.     After going through the allegations made in the complaint,  written replies filed by the OPs, evidence and documents brought on the record, learned District Forum vide impugned order observed that the complainant had approached OP No. 3 for the first time on 04.12.2010.  It has been referred in the affidavit filed by respondent No. 3 (Ex. R-12) that no investigation were required or carried out for the patient at that time.  However, the learned District Forum after relying upon the duties cast upon doctors referred in Consumer Protection Act and Medical Profession by M.K. Balachandran, it was observed that OP No. 3 was required to carry out necessary investigation, through appropriate laboratory tests to arrive at a proper diagnosis which was not done by OP No. 3, whereas this was done when the patient was admitted in Dayanand Medical College and Hospital, Ludhiana.  Although there may not have any difference in the medicine given by OP No. 3 and doctor at DMC hospital.  The contention of OP No. 3 that it was so advised by father of the complainant not to write the diagnosis on the OPD slip before starting the treatment was not acceptable. By not conducting the investigation and taking second opinion when medicine was not effective amounts to deficiency in service on the part of OP No. 3 and accordingly, the complaint was allowed as stated above.

11.     In the grounds of appeal, it has been contended that the learned District Forum has not properly appreciated the facts on the record that the patient was having problem since the time of his birth.  The patient was not treated for epilepsy as alleged.  The patient was clinically examined and diagnosed and his treatment was started as per medical norms.  There was no expert opinion that the treatment given by OPs was not according to the medical norms.  Even the error of judgment cannot said to be a case of medical negligence.  Even doctors in DMC hospital gave the same medicines as given by OPs.  The medicine given by the OPs was not having any side effect.  Accordingly, it was submitted that the order so passed by the learned District Forum is liable to be set-aside and consequently, the complaint be dismissed as no case of medical negligence is made out.

12.     The admission of the patient with the OP hospital is not disputed.  The medical record of the patient has been placed on record as Ex. C-3.  It refers only the name of patient, his age and various medicines recommended by OP No. 3 from time to time.  However, the column of diagnosis is lying blank.  In the written reply filed by OP No. 2 & 3, it has been stated that the father of the complainant had asked OP No. 3 not to give diagnose in the OPD slip.  The father of the complainant has filed affidavit Ex. C-4.  No request was received from OP for the cross examination of this witness.  In case, any plea has been taken by respondents No. 2 & 3 in their written reply that diagnosis was not written on the request of the father of the complainant, they should have made a request to District Forum for the cross examination of this witness when he tendered the affidavit.  In the absence of any such request, the plea taken by OP No. 2 & 3 that diagnosis was not written on the request of the father of the complainant is not acceptable.  Although there may not be material difference in treatment given by OPs as well as DMC, but before starting the treatment of the patient who was having a very serious problem of cerebral palsy and tremors, some diagnosis should be there.  Investigations should also have been there in the form of some tests in the laboratory, but it has not been so done by OPs before starting the treatment.  Learned District Forum has given the reference to Consumer Protection Act and Medical Profession by M.K. Balachandran wherein Indian Institute of Public Administration New Delhi had prescribed the duties of doctors as under:-

          : to exercise a reasonable degree of skill and knowledge and a reasonable degree of care;

          : to exercise reasonable care in deciding whether to undertake the case and also in deciding what treatment to give and how to administer the treatment;

          : to extent his service with due expertise for protecting the life of the patient and to stabilize his condition in emergency situation;

          : to attend to his patient when required and not to withdraw his services without giving him sufficient notice;

          : to study symptoms and complaint of the patient carefully and to administer standard treatment;

          : to carry out necessary investigations through appropriate laboratory tests wherever required to arrive at a proper diagnosis;

          : to advise and assist the patient to get a second opinion and call a specialist if necessary;

          : to obtain informed consent from the patient for procedures with inherent risk of life.

          : to take appropriate precautionary measures before administering injections and medicines and to meet emergency situations;

          : to inform the patient or his relatives the relevant facts about his illness;

          : to keep secret the confidential information received from the patient in the course of his professional engagement;

          : to notify the appropriate authorities of dangerous and communicable disease;

 13.    Moreover, under Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 under Appendix-3, the format of medical record is prescribed as under:-

          FORMAT FOR MEDICAL RECORD

          Name of the patient:

          Age:

          Sex:

          Address:

          Occupation:

          Date of 1^st visit:

          Clinical note (summary) of the case:

          Prov. : Diagnosis:

          Investigations advised with reports:

          Diagnosis after investigation:

          Advice:

          Follow up

          Date:

 

          Observations:

          Signature in full..............

          Name of treating physician.

14.     Moreover, the patient continued his treatment from 04.12.2010 to March, 2011 and in case there was no response to the treatment then there should have been second opinion from some other specialist or by way of some expert opinion or tests which was not done by OPs and when the patient was got admitted in DMC hospital, they first diagnosed the problem and then gave the treatment and he responded to the treatment.  Therefore, there was some deficiency in service provided by OPs, specifically with regard to the investigation and proper diagnosis which amounts to deficiency in service on the part of OPs No. 2 & 3.  Therefore, the learned District Forum has rightly gave the reasonable compensation against this institution as they have not worked according to Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 and duties upon the doctors in view of the instructions issued by Indian Institute of Public Administration New Delhi,.  We are of the opinion that there is no illegality in the order passed by the learned District Forum and we affirmed the order.  We do not see any merit in the appeal and the same is dismissed.

15.              The appellant had deposited amounts of Rs.12,500/- on 05.03.2012 and Rs. 12,500/- on 02.05.2012 with this Commission. Both of these amounts alongwith interest be remitted to the respondent No. 1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days subject to stay, if any, by the Higher Fora/Court. Remaining amount shall be paid by the appellant to the respondent No. 1/complainant within 45 days from the receipt of copy of the order.

16.               The arguments in this appeal were heard on 20.02.2015 and the order was reserved.  Now the order be communicated to the parties as per rules.

 

                                                (GURCHARAN SINGH SARAN)

                                               PRESIDING JUDICIAL MEMBER

 

                                               

                                                          (JASBIR SINGH GILL)

                                                                   MEMBER

                                                                                                                                                                                                                                                                                                                                               

 

 

(HARCHARAN SINGH GURAM)

MEMBER

 

 

February 24, 2015

Rupinder