BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.311 of 2020

      Date of Instt. 22.09.2020

      Date of Decision: 07.03.2023

Pooja Singh, aged about 45 years wife of late Shri Deepinder Singh alias Dapinder Singh, resident of Flat No.T-501, Jalandhar Heights-I, Jalandhar.

..........Complainant

Versus

1.       BBC Heart Care Pruthi Hospital, 301, Lajpat Nagar, Near        Nakodar Chowk, Jalandhar-144001 through its concerned doctor,         Dr. C. S. Pruthi.

2.       Dr. C. S. Pruthi, concerned doctor, BBC Heart Care Pruthi      Hospital, 301, Lajpat Nagar, Near Nakodar Chowk, Jalandhar-      144001.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. Jasbir Singh, Adv. Counsel for the Complainant.                        Sh. R. S. Arora, Adv. Counsel for OPs No.1 & 2.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that Shri Deepinder Singh alias Dapinder Singh was husband of the complainant and he was aged about 47 years when he unfortunately expired on 29.07.2020 due to COVID-19 infection as claimed by the Civil Hospital Authorities. The brief facts of the case are that Shri Deepinder Singh alias Dapinder Singh was married to the complainant on 10.12.2006 and from this wedlock, one child namely Khushdeep Singh was born on 06.08.2009 who at present is aged about 11 years. Before marriage with Shri Deepinder Singh alias Dapinder Singh, the complainant was divorcee and from her previous marriage, she had two sons namely Tanuj and Parth who at present are aged about 23 years and 19 years respectively. In fact, Shri Deepinder Singh alias Dapinder Singh was treating both these children as his own sons and had been bringing them up with all possible ways. Shri Deepinder Singh alias Dapinder Singh was working with M/s Spartan Sports Company. Basti Nau, Jalandhar and he was being paid Rs.50,000/- per month as salary and in addition to the said amount, he was also being paid allowances and commission and thus, his total income was approximately Rs.1,00,000/- per month. All the three children were being looked after by Shri Deepinder Singh alias Dapinder Singh and the mother of the complainant namely Smt. Neelam Khanna who is widow was also residing in the house of the complainant and she was also being looked after by Shri Deepinder Singh alias Dapinder Singh. The complainant is housewife and is not doing any work. Thus, the entire family was dependent upon Shri Deepinder Singh alias Dapinder Singh who was looking after the entire family. The eldest son namely Tanuj at present is in Canada and after completion of his studies, he is working there. The second child namely Parth has completed his 10+2 class and was to go for higher study to Canada and the entire amount for higher study of Parth was to be spent by Shri Deepinder Singh alias Dapinder Singh but after his unfortunate death, higher studies and career of Parth have been jeopardized and thus the educational loan which was applied for Parth has now been cancelled after the death of Shri Deepinder Singh alias Dapinder Singh. The future of Parth is totally in dark as now there is no income in the family. The third child namely Khushdeep Singh is studying in 6th class at C.T. World School and the educational future of Khushdeep Singh has also been now in darkness. The total annual expenses on education and other expenses which were being incurred by Shri Deepinder Singh alias Dapinder Singh on Khushdeep Singh were about Rs.1,50,000/- in addition to the day to day expenses which were approximately Rs.20,000/- per month. The residential house in which the complainant and her husband alongwith family were residing was on rent and nearly considering all the expenses, Rs.20,000/- per month was being spent, which was also being paid by Shri Deepinder Singh alias Dapinder Singh. Even monthly installments of education loan of Tanuj amounting to Rs.18,000/- per month which was study loan was being paid by Shri Deepinder Singh alias Dapinder Singh and in addition to the said amount, household expenses to the tune of Rs.30,000/- were being made exclusively besides the electricity and other charges etc and thus, the total amount which was being earned by Shri Deepinder Singh alias Dapinder Singh was being spent on household. That with the death of Shri Deepinder Singh alias Dapinder Singh, now there is nothing which is available in the family and the entire family has reached to the stage of starvation due to unfair trade practice and negligence in service on the part of the opposite parties. The detailed facts about the incident as to why the opposite parties are considered to be negligent in service are as follows:-

a)                That Shri Deepinder Singh alias Dapinder Singh was in perfect health as on 28.07.2020 and at about 11.30 AM, he told the complainant that he is suffering with some breathing difficulty and thereafter, immediately the complainant took him to BBC Heart Care Pruthi Hospital, Jalandhar where Dr. C.S.Pruthi was the treating doctor.

b)                That on 28.07.2020 at about 12.30 PM, after making payment of initial payments, checkups of Shri Deepinder Singh alias Dapinder Singh were made by Dr. C. S. Pruthi and he found Deepinder Singh alias Dapinder Singh to be having temperature of 98.2 degree F, Blood Pressure was 140/30 and his heart rate was 140. The said vitals of Shri Deepinder Singh alias Dapinder Singh were mentioned on the prescription slip by Dr. C.S.Pruthi and are being mentioned in this complaint as per the prescription. If the lower Blood Pressure was just 30 then sending the patient Shri Deepinder Singh alias Dapinder Singh outside the hospital clearly shows acute negligence and intentional non-treatment on the part of Dr. C.S.Pruthi. Immediately, advice was given by the concerned doctor to get CBC (Complete Blood Counts) and CXR (PA) (X-ray Chest Review (PA) and Shri Deepinder Singh alias Dapinder Singh was diagnosed as having general weakness fatigue, breathing difficulty, cough and sore throat. The symptoms as per the doctor appeared to be of COVID-19 and the complainant requested the doctor to shift the patient to the COVID Specialist Hospital being run by the same management at Capitol Hospital, Jalandhar and to provide the Ambulance and a request was also made by the complainant who was with her husband Shri Deepinder Singh alias Dapinder Singh that general First Aid be given and in case possible then Covid-19 Test be done there itself. Because as per the doctor, Shri Deepinder Singh alias Dapinder Singh was in very serious condition and could collapse at any time, it was categorically told by Dr. C.S.Pruthi that he cannot provide any First Aid or general medication for treatment to Shri Deepinder Singh alias Dapinder Singh without there being COVID-19 Test. In fact, Dr. C.S.Pruthi and his staff refused to even treat Shri Deepinder Singh alias Dapinder Singh and the complainant was advised to immediately take Shri Deepinder Singh alias Dapinder Singh to Civil Hospital, Jalandhar so that the COVID Test is conducted there. Even the first Aid and general medication was not given to Shri Deepinder Singh alias Dapinder Singh nor he was shifted to Capital Hospital, Jalandhar which is General COVID Hospital being run by the same management. Even no ambulance was provided to Deepinder Singh alias Dapinder Singh despite request made by the complainant.

c)                That thereafter, the complainant in her own personal car went to Civil Hospital, Jalandhar and met the duty doctor there at about 2 PM. The complainant does not know the name of the Duty Doctor but can recognize the said doctor on seeing who met her there and she requested that the test of COVID-19 may be done upon Deepinder Singh alias Dapinder Singh immediately by way of Trunet machine so that his treatment can start there but the concerned doctor refused to conduct the COVID Test by way of Trunet machine stating that the said machine is only for VIP persons and not for the general public. It was stated that the swab sample would be taken and the report would be given after two days. In fact, even in the Civil Hospital, no treatment was given and as the COVID Test was not being conducted and no private doctor was ready to treat Shri Deepinder Singh alias Dapinder Singh, so the complainant called up her relative at Patiala and she was asked to come to Patiala alongwith Shri Deepinder Singh alias Dapinder Singh for getting the COVID Test conducted there by way of Trunet machine.

d)                That as the complainant was under great stress, mental tension and trauma seeing her husband suffering without being treated by the doctors, so she immediately started driving her personal car to Patiala and reached there in Rajindera Hospital, Patiala where the COVID Test of her husband was conducted who was found to be Corona positive.

e)                That the husband of the complainant was feeling fine at that stage, so it was thought that the complainant will drive back to Jalandhar and get the treatment done at Jalandhar itself. It is to be mentioned herein that as in Trauma Centre at Rajindera Hospital, Patiala some dead bodies were lying and the husband of the complainant was also feeling normal, so the complainant thought it proper to bring him back to Jalandhar where he can be treated. It is to be mentioned herein that x-rays were also conducted at B.B.C. Heart Care Pruthi Hospital, Lajpat Nagar, Jalandhar and CBC was got conducted from S.G.S.M. Diagnostic Centre, Lajpat Nagar, Jalandhar which is inside the hospital premises of B.B.C. Heart Care Pruthi Hospital. From the copies of x-rays which were given to the complainant, it was clear that some Namonia symptoms were started in the lungs of Shri Deepinder Singh alias Dapinder Singh. While driving back, when the complainant reached near Haveli Restaurant, Jalandhar at about 12 midnight, she found that her husband was collapsing and was not feeling well. Immediately thereafter, at that time, the complainant called Dr. C.S.Pruthi who stated that he does not have any bed available and asked the complainant that Deepinder Singh alias Dapinder Singh should be taken to Dayanand Medical College & Hospital, Ludhiana. In fact, lateron, it transpired that the beds were available in B.B.C. Heart Care Pruthi Hospital and it was wrong averment made by Dr. C.S.Pruthi that no bed was available in his hospital.

f)                 That as the complainant was driving the vehicle for the entire day and she was alone with her husband and it was midnight, so she thought not to go to Ludhiana at that time. Even otherwise, the complainant was not knowing anybody in Dayanand Medical College & Hospital, Ludhiana nor she was knowing the way to reach there, so she thought it proper that she would go to Civil Hospital, Jalandhar and immediately at about 12.30 AM of 29.07.2020, she reached Civil Hospital, Jalandhar and got her husband admitted in Trauma Centre/ ICU. It is to be mentioned herein that virtually, there was no expert doctor to look after the husband of the complainant nor any expert doctor was called up.

g)                That at about 1.20 AM of 29.07.2020, the complainant was asked to go back to her house and to come in the morning. It is to be mentioned herein that the COVID Test of the complainant was also got conducted at Rajindera Hospital, Patiala and she was also found to be suffering with Corona positive and she was advised to go back to her house and not to come out of the house. Thereafter, the complainant went back to her house and did not come in the morning to the Civil Hospital Jalandhar and sent her relative namely Vijay Sharma and it was shocked to know that Shri Deepinder Singh alias Dapinder Singh had expired.

h)                That the last rites of Shri Deepinder Singh alias Dapinder Singh were conducted on 29.07.2020 at 3 PM with all the Covid-19 protocol and the directions of the Deputy Commissioner, Jalandhar. Thereafter, the COVID Tests of other family members were also conduced and it was found that the mother of the complainant namely Smt. Neelam Khanna who was residing with the complainant, her sons namely Parth and Khushdeep were also found to be Corona positive.

i)                 That in fact, the complainant, her mother and both the children were symptomatic and were directed to remain in Home Isolation for 17 days as per the protocol. Home Isolation was finished on 14.08.2020 and thereafter, a complaint was drafted and sent by the complainant to Hon'ble Chief Minister of Punjab for the purpose of registration of FIR against Dr. C.S.Pruthi and other concerned doctors/ authorities of Civil Hospital, Jalandhar who did not even care to look after Shri Deepinder Singh alias Dapinder Singh and to give him First Aid or the basic medication so that his life could have been saved after knowing fully well that he was very serious. The x- rays which were conducted at B.B.C. Heart Care Pruthi Hospital were also shown to Dr. C.S.Pruthi and the Civil Hospital doctors but even after seeing the x-rays, neither Dr. C.S.Pruthi nor the Civil Hospital doctors gave any first aid or the basic medication to Shri Deepinder Singh alias Dapinder Singh though as per protocol Shri Deepinder Singh alias Dapinder Singh should have been provided immediate treatment and in case of need, he should have been put on oxygen or the ventilator at the very onset without even waiting for the Covid-19 screening. Had the appropriate medication been given to Shri Deepinder Singh alias Dapinder Singh, husband of the complainant then his life would have been saved. Dr. C.S.Pruthi and the concerned doctors of Civil Hospital Jalandhar who were on duty, have committed culpable homicide as they did not provide proper medication to Shri Deepinder Singh alias Dapinder Singh nor put him on oxygen or ventilator at that relevant time and rather, misguided the complainant knowing fully well that Shri Deepinder Singh alias Dapinder Singh was serious and there was danger to his life. In fact, neither Dr. C. S. Pruthi nor Civil Hospital doctors disclosed this aspect to the complainant that the life of Shri Deepinder Singh alias Dapinder Singh was under danger at the time when she went to B.B.C. Heart Care Pruthi Hospital, Jalandhar at about 12.30 PM on 28.07.2020 and even in the Civil Hospital, the duty doctor who was a male, did not inform the complainant at about 1.30 PM on 28.07.2020 that her husband could lose his life. In fact at that time, the said doctor refused to conduct the COVID Test by way of Trunet machine. Had the COVID Test been conducted at that time by way of Trunet machine, the life of the husband of the complainant could have been saved.

                   That already a complaint has been given against the OPs for the purpose of registration of the FIR. However, this complaint is being filed for the negligence in service on the part of the opposite parties which have been rendered by the opposite parties intentionally and willfully. Due to the act and conduct of the OPs, Shri Deepinder Singh alias Dapinder Singh has died and after his death, there is no male member in the family except the children as detailed hereinabove. On account of loss of the life of Shri Deepinder Singh alias Dapinder Singh because of negligence on the part of the opposite parties, the life of complainant, her mother and children has become stand still and now there is no help available to them and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay a compensation of Rs.1,00,00,000/- which includes loss in income to the family due to untimely death of the deceased, loss of love and affection for the complainant and the children, dependency upon the deceased and the legal expenses etc.

2.                Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that That the sister-in-law (i) Dr. Rupinder Kaur, Assistant Professor PI (VRDL), Government Medical College, Patiala, (ii) Government Medical College, Patiala (iii) Rajindra Hospital Patiala and (iv) Mata Kaushalya Hospital, Patiala are the necessary parties for complete and proper adjudication of the matter; separate application for their impleadment as opposite parties is being moved alongwith the present reply. The deceased died at the Civil Hospital, Jalandhar, Rajindra Hospital Patiala violated the norms and did not quarantine, Dr. Rupinder Kaur, as near relative of the complainant, conspired to give a safe passage to the complainant to run away, the complainant herself spread virus and did not abide by the advice of the respondent no.2 to go to the Civil hospital, Jalandhar for immediate Test. The present complaint against the opposite parties is malafide and misconceived. It is further averred that no cause of action accrued to the complainant against the OPs. No ill advice was given by the OPs of compulsory getting the Covid screening done before treatment could start. The deceased died in the Civil Hospital against whom for action, the complainant has reserved the right in the present complaint to proceed in Para 6[b]. It is wrong that the opposite parties committed negligence and deficiency in service by telling the complainant that without getting the Covid-19 screening no treatment could be given to the deceased. It is submitted that the treatment in case of breathing problem and treatment in case of Covid-19 infection were contra to each. Covid-19 is caused by virus, and therefore antibiotics treatment, should not whereas in be used case for of chest infection, breathing problem, Pneumonia the use of antibiotics is the first choice. There was no deficiency in service on part of the respondents in directing the complainant to go to the Civil Hospital, Jalandhar so that infection of suspected Covid-19 could be ruled out before giving further treatment.  The complaint proceeds on the assumption that Covid-19 test could be conducted at the hospital of the respondent no.2 and was not conducted, - which absolutely is wrong; the Covid-19 test was to be conducted at the Civil Hospital by way of Truenat machine and the respondent no.1 had no provision to do so. TrueNat Test of Covid-19 is a new molecular test taking in all one hour for reporting with incomparable accuracy which is conducted only in the Civil Hospital. That it is admitted by the complainant in Para 5(b) that she was directed to go there to the Civil Hospital, Jalandhar. No fault could be found in such direction. But instead of going there half a mile, the complainant went to her sister in law at Patiala at the cost of the life of her husband. It is further averred that the complainant has to blame only herself for her acts of omission and commission resulting into the death of her husband and is debarred to bring the complaint against the OPs. The complainant is experimenting with the present complaint against the respondents. The complainant in her complaint has reserved her right to bring the complaint against the Civil Hospital, Jalandhar. If the complainant been positive about the negligence of the opposite parties, she would not have reserved her right to proceed against other party for the same cause of action. The complainant in her complaint has not condoned the Civil Hospital, Jalandhar of their refusal to conduct the Covid-19 Test on Truenet machine on 28.07.2020 [Para 5 Page 121, nor has absolved the said Hospital of the negligence in handling the case of her husband on 29.07.2020 when death of Dapinder Singh took place in the Civil Hospital [Para 6(b) Page 13]. The complainant has come to wrongly allege negligence against the respondents for malafide reasons. The complaint is malafide and motivated to defame the respondents. She has gone to the Facebook and also held an interview with the equally bad extortionist, to blackmail the respondents. The complainant wrongly exonerates herself from taking the blame for the death of her husband which otherwise squarely lies on her shoulders therefore the matter, among other, can suitably be thrashed only before the Civil Court, therefore, the complainant deserves to be relegated there for trial. It is further averred that the complainant goes unbridled and adnauseam repeating the same thing multitimes; the prolific complaint in such form is liable to be deprecated and discouraged in the arena of consumer. The complaint is vexatious against the answering OPs and is liable to be dismissed with exemplary costs. On merits, it is admitted that on 28.07.2020, the patient Deepinder Singh was brought to the hospital with breathing difficulty and tests were also conducted and the facts regarding giving treatment to the patient Deepinder Singh is also admitted and it is also admitted that the deceased i.e. the husband of the complainant was having general weakness, fatigue, breathing difficulty, cough and sore throat having temperature 98.2F, BP 140/30, HR 140,  but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the OPs No.1 and 2 very minutely.

6.                The Ld. Counsel for the complainant has submitted that there is negligence on the part of the doctor/OP No.2 as when the complainant took the deceased Deepinder Singh to the hospital of OP No.1. The deceased was having temperature of 98.2 degree F, Blood Pressure 140/30 and his heart rate of 140. Despite the fact that the deceased was having low BP, but OP No.2 did not diagnose the deceased and did not provide any treatment/first aid to the deceased and intentionally sent the deceased outside the hospital. This is clear cut negligence and deficiency in service on the part of the OP No.2. All the tests were got conducted on the advice of the OP No.2. The symptoms as per the OP No.2 appeared to be of Covid-19 and the complainant requested the OP No.2 to shift the patient to Covid Specialist Hospital being run by the same management at Capital Hospital and to provide the Ambulence, but the OP No.2 did not accede to her request rather he denied to give any first aid or general medication to the deceased without there being Covid-19 test. She was advised to immediately take the deceased Deepinder Singh to Civil Hospital, Jalandhar, so that the Covid-19 test is conducted. Therefore the complainant went to Civil Hospital of her own and requested the doctor on duty to conduct the Covid-19 test by way of Trunet Machine, but the doctor refused by saying that the machine is only for VIP persons. It was stated that the swab sample would be taken and report would be given after two days and even in the Civil Hospital, no treatment was given. No Covid-19 test was being conducted and no private doctor was ready to treat the deceased Deepinder Singh, therefore she went to Patiala to Rajindera Hospital to her relative. The counsel for the complainant has further submitted that after getting test conducted from Rajindera Hospital, Patiala, the complainant brought her husband back to Jalandhar in a car and when at 12 mid night her husband was collapsing she called OP No.2, who refused to take to admit the husband of the complainant on the ground that no bed is available and advised her to take the deceased to DMC Ludhiana. He wrongly narrated the facts that no bed is available nor he referred the husband of the complainant to the Capital Hospital, therefore the OP No.2 is negligent by not giving any first aid or basic medication to the deceased Deepinder Singh nor immediate treatment was provided to him. Therefore, there is deficiency in service on the part of the OPs and there is clear cut medical negligence by the OPs. She has produced on record the medical record, the bank account statement and Aadhar Card and other documents of the deceased husband Ex.C-1 to Ex.C-18.

7.                On the other hand, the OPs have admitted that on 28.07.2020, the patient Deepinder Singh was brought to the hospital with breathing difficulty. He has submitted that the further treatment could have been given only after conducting the clinical examination i.e. blood and imaging by X-ray. He has further submitted that the patient was directed to undergo immediately the Covid-19 test at the Civil Hospital, Jalandhar. He has further submitted that instead of taking the deceased Deepinder Singh to the Civil Hospital, Jalandhar, the complainant took the deceased to Rajindera Hospital, Patiala, where, the sister-in-law of the complainant Dr. Rupinder Bakshi was acting as Head, Controlling and Managing the Covid-19 matters of whole State of Punjab. The patient was diagnosed positive, but instead of quarantined themselves, the patient was brought to Jalandhar who died on 29.07.2020. He has further submitted that the complainant was knowing fully well that the condition of the deceased was very serious and she was informed that the patient could collapse at any time. This is the negligence on the part of the complainant herself, who, took the deceased to Rajindera Hospital for conducting the test. He has further submitted that the complainant herself admitted that unless and until the Covid-19 was not conducted, no doctor was ready to treat the complainant. She herself admitted that there was symptom of Covid-19 as per the doctor. In such circumstances, no treatment could have been given to the deceased Deepinder Singh unless and until the test report of Covid-19 is received in order to save the other patients. She herself has admitted that as per the report of x-ray, some symptoms of pneumonia appeared. There was no first aid or medication prevailing at the time of epidemic i.e. Covid-19. He has submitted that the allegations of the complainant that Oxygen was not given to the deceased when he was breathing difficulty, but if the Covid-19 test is positive, then the Oxygen is given in extreme or severe cases otherwise it is dangerous to give any medication without knowing the disease. He has further submitted that the patient Deepinder Singh could have been shifted to Capital Hospital only if the deceased had been reported to be Covid-19 positive as the Covid patients were being treated in the Capital Hospital and the patient without Covid could not have been referred to the Covid Centre, therefore there is no negligence on the part of the OP No.2. He has further submitted that the complainant has raised the allegation that the OP No.2 gave wrong advise to the complainant to get the Covid test and no treatment can be given without test, but these are wrong allegations. There was no wrong advise as at that time, it was the need of the hour to get the Covid test conducted. He has further submitted that the complainant made the complaint to the Chief Minister of Punjab and inquiry was also conducted and when it was found that it was the guilt of the complainant, who took the deceased to Rajindera Hospital Patiala, she did not pursue the complaint. She herself was negligent. The complainant has raised the allegations against the Civil Hospital and authorities, but the Civil Hospital has not been made party and the wrong allegations have been raised by the complainant. There is no deficiency in service on the part of the OPs. Therefore, there is no negligence and request has been made to dismiss the complaint.

8.                The complainant has alleged the deficiency in service on the part of the OPs for not treating the husband of the complainant immediately when he was taken to their hospital, he was not given first aid, he was not shifted to Covid Centre i.e. their sister concern Capital Hospital, where he could have been treated for Covid-19. It is well known that the WHO declared the outbreak a public health emergency of international concern on 30 January 2020 and a pandemic on 11.03.2020. In late December, 2019 there was a outbreak of a mysterious pneumonia characterized by fever, dry cough, and fatigue, and occasional gastrointestinal symptoms. The epidemiologic alert was announced by the Local Health Authority on 31 December, 2019. As per the contention of the complainant as well as the prescription of the doctor i.e. OP No.1, the deceased i.e. the husband of the complainant was having general weakness, fatigue, breathing difficulty, cough and sore throat having temperature 98.2F, BP 140/30, HR 140. These facts are admitted and proved. The law laid down by the Hon’ble Supreme Court in a case titled as ‘State of Haryana Vs. Smt. Santra’ has rightly held that ‘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’. The proposition of law is also clear, which has been laid down by the Hon’ble Supreme Court in ‘Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Others’ that ‘no guarantee  is given by any doctor or surgeon that the patient would be cured. The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill’.  ‘For negligence to amount to an offence, the element of mens rea must be showsn to exist’. It has been held by the Hon’ble Jharkhand High Court in a case titled as ‘Court on its own motion Vs. Union of India and anr.’ that ‘where the doctor is aware that if he does not provide treatment to serious ill person which may cause to death, then such a doctor must be prosecuted. Proper treatment and health care are one of the basic requirements of every human being and is a part of a fundamental rights too. If doctors do not perform their duty to save valuable human life, then such action must also be considered as anti national activity’. The Hon’ble Supreme Court has defined the medical negligence in the case, titled as“Jacob Mathew Vs. State of Punjab and Anr.” in 2005 (6) SCC 1, wherein his Lordship held as under:-

                   “A case of occupational negligence is different from one of      professional negligence. A simple lack of care, an error of        judgment or an accident, is not proof of negligence on the part of          a medical professional. So long as a doctor follows a practice           acceptable to the medical profession of that day, he cannot be          held liable for negligence merely because a better alternative      course or method of treatment was also available or simply         because a more skilled doctor would not have chosen to follow or           resort to that practice or procedure which the accused followed.”

                   To prove the negligence of the doctor, it is the fundamental duty of the complainant by leading cogent evidence and to show that the doctor has committed negligence medically while treating the patient. It has been held by the Hon’ble Supreme Court, in case titled as “C. P. SreeKumar (Dr.), MS (Ortho) v. S. Ramanujam” that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. The Hon’ble Supreme Court has held as under:-

                   “We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005]) 6 SCC 1: 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the fact probantia.”

9.                 In the present case, the facts are different from the facts in law referred by Ld. Counsel for complainant in cases titled as ‘State of Haryana Vs. Smt. Santra’ and ‘Court of its own motion Vs. Union of India and anr.’ In the present case at the time when the husband of the deceased became ill, there was an outbreak of Covid-19 and everybody was afraid of getting the same spread in the general public. Guidelines were issued by health authorities from time to time to prevent the spread of Covid-19 in order to save the general public. The law referred by Ld. Counsel for the complainant titled as ‘Pratibha Shinde President Lok Sangharsh Morcha and ors Vs. Principal Secretary, Public Health Department and ors.’ is not applicable to the facts of the present case as in that case, the deceased was declared a covid patient and he was not admitted in covid ward and kept with non-covid patients, but in the present case, this is not so. Perusal of the documents filed by the complainant show that in Ex.C-2, the patient was brought to the hospital on 28.07.2020 at 12:50 PM. CBC and CNR test/investigation was advised and the complainant was advised for covid screening. Perusal of Ex.C-3 and Ex.C-4 show that the reports of the test CBC etc. were available at 1.21 pm. Ex.C-5 is the x-ray report and the medicine has been prescribed on this document i.e. Ex.C-5. The contention of the complainant is that the deceased Deepinder Singh was not referred to Capital Hospital and he was not provided oxygen. The complainant has not proved that in the BBC Hospital i.e. OP No.1 there was a facility of getting the Covid-19 test, meaning thereby that in that hospital i.e. in OP No.1, the non-covid patients were also there for treatment. As discussed above, there was a outbreak of Covid-19 and guidelines were issued from time to time by the Central Government as per the Epidemic Disease Amended Act, 1920. The guidelines were issued from time to time by Ministry of Health and Family Welfare and these guidelines were regarding the action to be taken on detection of Covid-19 case in non-covid health facility. These guidelines clearly show that the patient having symptoms of Covid-19 should be isolated immediately and cannot be admitted in the hospital alongwith non-covid patient. He was to wear mask and take all other precautions in order to prevent the spread of Covid-19. The medicine without covid test could not be given by any health service provider or doctor without knowing the reason of the problem. Had there been not any symptoms of covid (as admitted by the complainant), then it would have been the negligence on the part of the doctor for not providing any medicine. Number of guidelines has been issued by the Govt. to prevent the general public from getting infectious because of this dangerous viral. The complainant has herself admitted that the doctor has advised her to go to Civil Hospital for covid test. It is not disputed that Capital Hospital was a covid centre. The patient could have been referred to the Covid centre only if he was having covid positive report, otherwise the patient could not have been referred to the Covid Centre, if he is not covid positive and this could have been possible only after getting the report of the covid test. The complainant herself admitted in her complaint that as per the doctor, the symptoms of covid-19 were there. So, it was mandatory at that time for getting the tests of deceased Deepinder Singh conducted from the nearest available place, which was Civil Hospital only. She has herself admitted that the doctor i.e. OP No.2 informed her that the condition of the deceased Deepinder Singh is very serious and he could collapse at any time. The complainant has alleged that she had gone to Civil Hospital, but the authorities of Civil Hospital denied covid test as the Trunet Machine was for VIP patients only, but there is no document to prove this fact that this machine was not available for the general patients. She has not impleaded the Civil Hospital as a party nor they have been summoned in the Court by the complainant to prove that they had refused to get conducted the test of deceased. So, it cannot be said that the civil hospital authorities refused to get the test conducted as per Ex.C-2, the doctor never referred her to get the test conducted from any hospital, but Civil Hospital was the nearest, so it would have been convenient for her to get the test conducted there only and at that time Rapid test was also being conducted. The complainant instead of getting the test conducted from any Hospital at Jalandhar or Civil Hospital took the patient to Rajindera Hospital, Patiala despite knowing that the condition of the patient is serious and he may be covid positive. She has proved on record the covid test report Ex.C-6, which is of GMC Patiala. As per this report, both the complainant as well as her husband were declared covid +. She herself did not prefer to get isolated themselves rather she took the deceased husband to Jalandhar by car. Even the doctor at Patiala did not quarantine both the complainant and her husband when they were found covid +, rather she allowed them to travel to Jalandhar. But no negligence on the part of the doctor, who was, the relative of the complainant, has been alleged by the complainant. As per her allegations, she called up Dr. Pruthi i.e. OP No.2 informing him about the report of the Covid test. It has been alleged by her that the doctor allegedly advised her to take the patient to DMC Ludhiana, but instead of taking the patient to DMC, she has alleged that the OP No.2 has wrongly stated that the beds were not available when the same were very much available and the OP intentionally did not want to admit the patient. It was obligatory for the complainant at that crucial time to get the patient admitted in DMC as advised by the doctor, but she did not do. She has alleged that since she was not knowing anybody in DMC nor knowing the way, therefore she went to the civil hospital, Jalandhar and got her husband admitted there. She has alleged that there were no expert doctors available to look after her husband nor any expert doctor was called, where he was admitted in emergency. As per this report, the patient was having BP 117/80 and he was conscious and oxygen saturation was 96%. Thereafter, his BP dropped at 4.40 PM and support was started by the doctor and he had sudden cardiac arrest at 4:50 am. This report of the doctor clearly shows that at the time of admission, the oxygen saturation was fine and no oxygen support was provided immediately when he was brought to the Civil Hospital. This clearly show that there was no need of any oxygen. The amendment was made in the Epidemic Disease Act, in the year 2020 and the health service providers were protected from any violence or any criticism by the general public. At the time of Pandemic, the health providers were providing the services to the covid patients responsibly and the lives of the general public could not have been put into the risk at that time. So a patient, who was not having the covid test report, neither could be admitted with known covid patient nor with the covid patients. The complainant herself did not quarantine at Patiala, when she was informed about the positive test report of covid nor the doctor at Patiala advised her to quarantine themselves as per Ex.C-6, which was the duty of doctor to make the patients aware about the situation. The complainant herself has taken the risk of taking her husband to Patiala for conducting the Covid test instead of getting the same conducted from Civil Hospital, Jalandhar. She has not proved anything on the record to show that the test was not available at Jalandhar. She herself has admitted that at that time even the private doctor was not ready to treat her husband without the covid test. It was dangerous to give any medicine or first aid at that time without getting the disease diagnosed. Though, the X-ray allegedly was showing the symptoms of pneumonia, but without the test, no medicine of pneumonia could be given as at that time. The Epidemic i.e. Covid-19 was spreading like anything and the life of every citizen and every individual, including the health service provider was at risk. So, considering the overall circumstance, there was no medical negligence on the part of the OPs as the doctor has followed the practice/procedure acceptable to the medical profession of that day, so the OPs cannot be held liable for any medical negligence. The complainant has failed to prove her case and thus, the complaint of the complainant is without merits and the same is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

10.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                             Jaswant Singh Dhillon                    Dr. Harveen Bhardwaj      

07.03.2023                    Member                               President