Haryana

Jind

CC/48/2013

Sachin Kumar - Complainant(s)

Versus

Bal Dharamarth Hospital - Opp.Party(s)

Sh J.S. Malik

06 Oct 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JIND.    
                         Complaint Case No.48 of 2013
                         Date of Institution:   27.2.2013
                               Date of  Decision:    6.10.2016
Sachin Kumar s/o Sh. Shiv Kumar, r/o Ward No.9, Near Bridge of Hansi canal Branch at Safidon, Teh. Safidon Distt. Jind.
                                             ….Complainant.
                Versus
Bal Dharamarth Hospital, Bhiwani Road Jind through its Chairman/ responsible person.
Dr. Ashish Jain, Bal Dharamarth Hospital, Bhiwani Road, Jind.
M/s B.D. Medicos, Inside Bal Dharamarth Hospital Bhiwani Road Jind through its Prop.
The Oriental Insurance Company Ltd., A25-27 Asafali Road, New Delhi through Branch Manager Jind(insurer of Dr. Ashish Jain)

          …. Opposite parties.

                      Complaint under section 12 of
          the Consumer Protection Act.
CORAM: SH. A.K. SARDANA PRESIDENT.
           SMT. BIMLA SHEOKAND, MEMBER.
           SH.  M.K. KHURANA, MEMBER.

Present: Sh. J.S. Malik Advocate, counsel for complainant.
        Sh. P.K. Gupta, Advocate, counsel for OPs No.1 to 3.
        Sh. Vikas Sharma Advocate, counsel for OP No.4. 

ORDER
    Complainant  has filed  the present complaint alleging therein that the  complainant was going to railway station Safidon to receive his father and all of sudden, a monkey struck with the motor-cycle of the complainant and resultantly 
the complainant sustained injuries on his shoulder, ribs & legs. The father of the  complainant approached the OP No.1-Hospital where OP No.2 got X-ray and advised for operation, whereas the complainant requested the OP No.2 for tiding the belt, but the OP No.2 refused and said that without operation, the injury cannot be cured and ultimately on 19.10.2012, OP No.2 conducted operation qua the shoulder of the complainant and inserted plate on the clavicle of the complainant and the complainant was discharged on 23.10.2012. It has been further contended by the complainant that due to negligent treatment and wrong operation conducted by the OP No.2, the complainant has to suffer constant pain in the body and the plate so inserted by the OP No.2 came out side the body.  The complainant again approached the OP No.2 who after examination advised for second operation for removing the plate & proper treatment. It has been  further alleged that on 26.11.2012, OP  No.2 conducted the second operation and discharged the complainant on 29.11.2012 but continuous pain remained  in the body/shoulder  of the complainant, for which the complainant contacted several Hospitals i.e. Raghubir Hospital, Panipat,  Dr. Sudhir Sabharwal & Dr. Mohinder Sardana at Panipat, Dr. Archana Gupta of Panipat and all the doctors opined that the operation conducted by OP No.2 is not in a proper manner  rather is in negligent manner and for proper treatment, third operation is required and ultimately the complainant got operated himself on 26.1.2013 at Gandhi Hospital, Panipat and spent more than Rs.25,000/- on the 3rd   operation avoiding further complication.  The complainant is still under treatment and has spent huge amount on his treatment till today due to wrong operation performed by OP No.2. It has been further contended that OP No.3  is running a medical shop inside the OP No.1 hospital and selling the expiry dates medicines in collusion with OP No.2 which is evident from the bill dated 26.11.2012, wherein OP No.3 sold one Artacil Inj. Meon which was expired in September, 2012 and this shows that the OPs are violating the rules & regulations of All India Medical Authorities. In this way, complainant has contended that OPs are negligent, careless & deficient in providing proper treatment  to the complainant for which they are liable to compensate the complainant and complainant  is legally entitled to recover an amount of Rs.2,50,000/- on account of expenses spent by him on the treatment, medicines, fees of doctors etc. plus Rs.2,00,000/- as compensation on account of mental agony and harassment from OPs along with interest @24% p.a. and thus necessary directions be issued to OPs accordingly by accepting the complaint filed by complainant. 
2.         Upon notice, OPs appeared through their respective counsels and filed their written versions. OPs No.1 & 3 filed joint written statement whereas OP No.2 &4 filed their separate written statements but the version of OPs No.1,2 &3 is  almost the same. OPs No.1 to 3 have urged that complainant had filed a complaint dated 24.1.2013 against OP No.2 regarding medical negligence which was marked to Civil Surgeon, Jind by Registrar, Haryana Medical Council, Chandigarh and the Civil Surgeon, Jind constituted a committee of 3 medical experts to enquire the complaint of the complainant. The said committee enquired the matter, recorded the statements of complainant and OP No.2. They also examined the medical record and gave their report that there is no case of medical negligence. On merits, it has been urged by the OPs that the complainant was admitted in the hospital of OP No.1 with case of severely displaced fracture right clavicle  indenting  the skin for which fracture operated procedure (open reduction & inernal fixation with plate) is a standard procedure as mentioned in standard books of orthopedics  which was duly applied as per consent of complainant but complainant suffered post operative infection after discharge from Hospital for which repeated surgery was required. Further, the medicines and other equipments alleged to have been purchased by the complainant were not so purchased on the advice of OP No.2. 
Artacil Injection Meon was not suggested by OP No.2 and this injection was not even given to the complainant. It is denied that expiry date injection was ever sold by OP No.3. In this way, OPs No.1 to 3 have urged that there is no deficiency in service on their part and prayed for dismissal of complaint with costs. 
3.       OP No.4 contended in the preliminary objections that the complainant has no cause of action and locus-standi to file the present complaint and the complaint is not maintainable in the present form. On merits, it has been urged that the complainant has not produced any certificate or opinion from any doctor regarding the loss suffered by complainant due to said operation. There is no medical evidence with the complainant to prove the negligence of OP No.2. The complainant was provided treatment as per his situation and requirement after making everything clear to him and his family members. There was no negligence in performing the duty on the part of OP No.2 and hence insurance company is not liable to compensate the complainant. Dismissal of complaint with special costs of Rs.25,000/- has been sought by OP No.4.
4.         To prove his case, complainant’s counsel has tendered affidavits of complainant as Ex. C-1 & Ex. C-47 alongwith documents as Ex. C-2 to Ex. C-46 and closed evidence on behalf of complainant whereas on the other hand, counsel 
for the OPs No.1 to 3 have tendered affidavit of Kailash Chander, President, Bal Dharmarth Hospital, Jind as Ex. OP-1 alongwith documents Ex. OP2 to Ex. OP-12 and closed the evidence on behalf of OPs No.1 to OPs No.3. Counsel for OP No.4 also closed evidence on behalf of OP No.4 by tendering affidavit of Mahavir Singh, representative of  insurance Co. as Annexure  OP-13 & professional indeminity Doctor policy as Annexure OP-14. 
5.        We have heard the Ld. Counsels for all the parties and perused the record placed on file. Ld. Counsel for the complainant argued that the complainant met with an accident while driving his motor-cycle and sustained injuries on his shoulder, ribs and legs. The complainant was diagnosed by the doctor-OP No.2 and a surgery was prescribed instead of belt. Ultimately the surgery of the shoulder of the complainant was done by respondent-doctor and a plate was fixed on 19.10.2012 and bed rest was advised. The Ld. Counsel of complainant further argued that after about thirteen days, the plate was exposed from the skin and the complainant suffered severe pain. The second opinion was obtained from doctor Archana Gupta on 7.1.2013 and it was told that the fracture is still there in the shoulder of the complainant and accordingly the complainant was re-operated. So, 
OP No.2-doctor remained negligent in treating and operating the complainant for which all the OPs are liable to compensate the complainant jointly & severally. 
6.           On the other hand, the counsel for OPs No.1 to 3 argued that the patient was properly examined, investigated, diagnosed and treated by OP No.2 doctor as per prescribed norms of medical practice which are mentioned in the text books and journals of the subject concerned. Moreover the complainant has also not been able to explain as to what type of negligence has been conducted by the operating doctor as what treatment was to be given and what was not to be given to the complainant. What the OP doctor was supposed to do which he did not do? What were other methods of treatment etc? The Ld. Counsel of the OPs No.1 to 3 further argued that the complainant made complaint to Hon’ble C.M. Haryana vide application dated 24.1.2013 ( Ex. OP-5) whereupon a committee of expert doctors was constituted by the then Civil Surgeon, Jind on the direction of Registrar Medical Council Haryana vide letter dated 27.6.2013 (Ex. OP-4). The said Committee submitted its enquiry report ( Ex. OP-7) holding that “ the said patient suffered post operative infection as a result of which patient had to go to repeated surgery. This complication can occur in any patient after surgery. Hence we are of the opinion that this is not a case of medical negligence.”  Ld. 
Counsel of the operating doctor  also argued that OP Hospital is a charitable trust and the operating doctor is receiving the fixed salary and there is no personal benefit to the doctor.  Besides it, no other specialized doctor has given in writing that the surgery was not required. Moreover, the operating doctor is well qualified and having specialist degree in orthopedics from a reputed institution of medical science and hence, there is no negligence on the part of the operating doctor. 
             The Ld. Counsel for OP No.4 though admitted that operating doctor is insured with the Oriental Insurance Co. Ltd. for an amount of Rs.10,00,000/- (Rs. Ten lacs) but argued that no medical evidence has been produced by complainant to prove negligence of OP No.2 doctor. 
        To support his case,  counsel for OPs No.1 to 3 placed reliance on the case law decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as G. Ravender Rao & others Versus Ghulam Dastagir & others, 2013 (1) CLT page 594,  wherein it has been held that “ the appellants, who are well qualified doctors treated the patient as per their best professional judgment and on the basis of diagnostic and clinical tests from a well equipped laboratory-Held, there is no medical negligence or deficiency in service in the treatment of patient.” Counsel of OPs No.1 to 3 also relied upon the judgment delivered by the Hon’ble National Commission in consumer case titled as Ajay Gupta Versus Pradeep Aggarwal (Dr.) & others, IV (2007) CPJ page 64 (NC)  wherein it has been held that “ Treatment given contrary to established medical norms not proved-expert evidence or medical literature in support of allegations not produced on record-complaint dismissed-Appeal against order dismissed.” OPs No.1 to 3 further relied upon the judgment delivered by the Hon’ble Supreme Court in case titled as Kusum Sharma & others Versus Batra Hospital & Medical Research Centre & others, 1 (2010) CPJ page 29 (SC)   wherein it has been held that “doctor not guilty of medical negligence as long as they perform their duties and exercise ordinary degree of professional skill and competence-Medical negligence not proved in view of settled principles of medical negligence. No relief entitled.” They further relied upon the case law titled as Santosh Kumar Das Vs. Dr. P.C. Dey reported in 2014(1) CLT page 501 (NC) Wherein it has been held that “Non union of bone of complainant-plea of doctor that the non union of the bone happened due to the lack of formation of callus, which is totally a physiological process and happens in many cases-The State Commission have quoted extensively from the medical literature bringing out clearly that there were various causes for non-union or delayed union of the 
fractures, and came out with the conclusion that the OP No.4 cannot be blamed for the non-union, after the first operation-Held-That the allegations of medical negligence against the OP doctor is not established from record-Doctor may have adopted a different approach for the treatment of the facture, but as borne out from the statements of experts in the field, there is no reason to believe that the OP indulged in medical negligence of any kind.” Counsel for OPs No.1 to 3 further relied upon another case law titled as N. Krishna Reddy Vs. Christian Medical College & Hospital, 2007 (2) CPR page 260 (NC)    wherein it has been held that “Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against the hospital and doctors”. 
7.        After hearing the Ld. Counsels of all the parties and going through the record placed on file, we are of the considered view that the complainant has failed to prove medical negligence on the part of OP No.2 doctor qua his treatment & operation by tendering any documentary evidence or expert opinion in support of his case whereas the enquiry report tendered by OPs as Ex. OP-7 (which was got conducted by Civil Surgeon, Jind on the direction of Registrar Medical Council Haryana on the complaint of complainant) clearly speaks that this is not a case of 
Medical negligence on the part of OP No.2 doctor. In these circumstances, we are unable to hold that OP No.2 doctor/OP No.1 Hospital ever remained negligent or deficient in providing proper services to the complainant. Hence, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.  
Announced: 
                                   PRESIDENT                                                                                         District Consumer Disputes
                                  Redressal Forum, Jind. 

                                    Member

                                    Member