Haryana

StateCommission

A/826/2015

NATIONAL INSURANCE CO.LTD. - Complainant(s)

Versus

BEDO DEVI - Opp.Party(s)

NITIN GUPTA

06 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      826 of 2015

Date of Institution:      29.09.2015

Date of Decision :       06.01.2017

 

1.     National Insurance Company Limited, 3, Middleton Street, Post Box No.9229, Kolkata-700071, now represented through the duly authorised signatory of Regional Office-II, SCO No.337-340, Sector 35-B, Chandigarh.

Appellant-Opposite Party No.5

2.     Dr. Jetender Rathod, Resident of 15/4, ACACIA Vatika City, Sector 49, Sohana Road, Gurgaon. 

                                      Appellant-Opposite Party No.3

Versus

 

1.      Smt. Bedo Devi w/o Sh. Hoshiar Singh, Resident of Village Anandpur Jharoth, Tehsil Kharkhoda, District Sonipat.

                                      Respondent-Complainant

2.      Dr. Ramesh Sehgal, Nav Jiwan Hospital, near Kalupur Chungi, Sonipat.

3.      Nav Jiwan Hospital, near Kalupur Chungi, Sonipat.

4.      Oriental Insurnace Company Limited, A-25/27, ASIF Ali Road, New Delhi.

Respondents-Opposite Parties No.1,2 & 4

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

 

Argued by:          Shri Nitin Gupta, Advocate for appellants.

                             Shri Ashish Pannu, Advocate for respondent No.1.

                             Shri Ram Avtar, Advocate for respondent No.4.

(Service of respondents No.2 and 3 dispensed with vide order dated 19^th January, 2016).   

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          This appeal has been preferred against the order dated August 5^th, 2015 passed by District Consumer Disputes Redressal Forum, Sonipat (for short ‘the District Forum’) in Complaint No.538 of 2012.

2.                Bedo Devi-complainant (respondent No.1 herein) suffered pain in her abdomen. She visited Navjeevan Hospital-Opposite Party No.2 where she was examined by Dr. Ramesh Sehgal-Opposite Party No.1. After conducting necessary tests vide USG Report Abdomen dated 30^th June, 2012, following observations were made:-

“Right Kidney…normal in size, shape and location with normal cortical thickness with normal cortico-medullary differentiation.  Shows a 10.2 mm calculus in upper calyx with a 12.9 mm calculus in lower ealyx.

RK 93.7..X 40.9 mm

Left Kidney normal in size shape and location with normal cortical thickness with normal cortico-medullary differentiation. Shows no back pressure changes. Shows no calculus.

LK 99.2 X 43.8 mm

Urinary Bladder normal in contour and capacity. No evidence of calculus mass seen. Wall thickness normal.

RT Renal Calculi.

3.                On 29^th August, 2012 she was admitted in the hospital of opposite parties No.2 and 3 where surgical operation for removal of calculus/stone in right kidney was conducted by Dr. Jitender Rathod-Opposite Party No.2, on same day, that is, 29^th August, 2012. She was discharged on 1^st September, 2012 with advice to take follow up treatment. It was alleged that even after operation, the complainant did not feel well and she suffered pain in abdomen. She visited the opposite parties No.2 and 3 and was advised to take antibiotics but she did not get any relief. It was further alleged that during her treatment, the opposite parties No.2 and 3 sent the patient to Vaishnav Nursing Home, Railway Road, Sonipat. The USG Report Abdomen of Bedo Devi (dated 6^th September, 2012) is as under:-

“Liver is normal in size shape with normal echotexture with no focal lesion. Intrahepatic biliary rudicles and portal vein are normal..Portal vein measures 9.0 Mms.

Gall Bladder is distended, shows marked wall edema with increased wall thickness with pericystic fluid, is anechoic.

CBD is normal in course and caliber and measures 4.4 mms.

pancrease is normal in shape.size echogenecity. Peripancreatic fascial planes are maintained.

Spleen Normal.

Both Kidneys normal in size withnbormal in, shape and echotexture with normal cortico-medullary differentiation and no dilatation of pelvicalyseal system seen.

LK 91.5 X 45.5 mm.

RK 103 X 38.4 mm shows a 10 mm calculus with post acoustic shadowing in upper calyseal zone.

Urinary Bladder normal in contour and capacity. NO evidence of calculus/mass seen. Wall thickness is normal.

No lymphadenopathy seen.

Uterus and Adenexa Normal.

Mild free fluid seen in pelvic and RT pleural cavity.”

4.                Even thereafter, the complaint took treatment from various other hospitals/doctors viz. Satya Kiran Health Care Centre, Bansal Pathology Centre Bhagwan Mahavir Hospital Delhi, M/s Madhuban Pharmacy Madhuban Chowk Rohini Delhi, Saroj Hospital and Heart Institute, Fortis Hospital Delhi as advised by the opposite parties but she did not get any relief. It was alleged that the opposite parties are not trained doctors to give/refer allopathic medicines and perform surgical operations because the doctors did not hold a valid degree recognized by medical council of India. No consent was taken from the complainant before conducting operation. Thus, alleging medical negligence and deficiency in service on the part of the opposite parties, the complainant filed the instant complaint.

 5.               The Opposite Parties No.1 and 2- Dr. Ramesh Sehgal and Nav Jiwan Hospital, in their joint written version prayed for dismissal of complaint in view of the judgment rendered by Hon’ble Supreme Court in Martin F. D’Souza vs. Mohd. Ishfaq, 2009(2) RCR (Civil) 1 S.C. It was stated that on 27^th August, 2012 the patient/complainant visited the opposite parties with pain right side of abdomen and shown Ultra Sound Report dated 30^th June, 2012 of Vaishnav Nursing Home. In the said report it was observed that there was 10.2 mm calculus in upper calyx with a 12.9 mm calculus in lower calyx. The opposite party No.1 advised the patient for IVP examination and she got examined herself from Satyakiran Healthcare Centre Sonipat on 28^th August, 2012. After going through the above said reports, the opposite party No.1 advised the patient for surgery on the right kidney. It was disclosed that the surgery would be done by Dr. Jetender Rathod and his team. It was also told to the patient that there were multiple gall stones in her right kidney. Dr. Jetender Rathod is a renowned urologist and the surgery was conducted successfully. The patient was discharged after consultation with Dr. Jetender Rathod on 1^st September, 2012. It was admitted that on 3^rd September, 2012 the patient visited the opposite parties with complaint of fever and pain in right upper abdomen. Antibiotics continued and other treatment for fever was given in consultation with Dr. Jitender Radhod over telephone. On 5^th September, 2012 Dr. Jetender Radhod removed DJ stent because patient was suffering from fever.

6.                Dr.Jetender Radhod-Opposite Party No.3, in his separate written version admitted that operation was conducted on 29^th August, 2012, however, denied the allegations of medical negligence and deficiency in service, alleged by the complainant. The surgery was eventful and the patient was discharged on 1^st September, 2012. On 5^th September, 2012 DJ was removed because the patient was suffering from fever. It was denied that the opposite party No.3 is not a trained doctor because he is possessing degree of M.B.B.S., M.S. (Gen. Surgery) from A.I.I.M.S. and M.Ch (Urology) was completed in July, 2009. The opposite party No.3 is duly registered with MCI. Thus, denying the allegations, prayer for dismissal of the complaint was made.

7.                Opposite Party No.4 – The Oriental Insurance Company Limited denied the allegations of the complainant.

8.                Opposite Party No.5-National Insurance Company Limited, in its separate written version denied the allegations of the complainant and prayed for dismissal of the complaint.

9.                During the hearing of complaint, an application was filed by the complainant before the District Forum for referring the complaint for expert opinion. Accordingly, vide order dated 16^th February, 2015, the District Forum referred the complaint to BPS Government Medical College for Women Khanpur Kalan, District Sonipat to secure report of Medical Board. The Medical Board after examining the matter, observed as under:-

“The Board Members on 10.04.2015 in the office of the Medical Superintendent. After hearing both the parties and perusing the available record with them, the board is of considered opinion that there was no “lack of reasonable care and skill or willful negligence on the part of the treating Doctor/Surgeon”.

10.              After evaluating the pleadings and evidence of the parties the District Forum allowed complaint holding that the opposite party No.3 – Dr.Jetender Rathod committed medical negligence and deficiency in service and thus directed the opposite party No.5 – National Insurance Company Limited (insurer of Dr. Jetender Rathod) to pay Rs.5.00 lacs to the complainant.

11.              Counsel for the parties have been heard. File perused.

12.              Indisputably, in the case in hand the matter was referred to the Medical Board. The Medical Board at BPS Government Medical College for Women Khanpur Kalan, Sonipat, consisted of Dr. M.K. Garg; Prof & HOD Surgery, Dr. Nivesh Aggarwal, Prof. Surgery; Dr. Atul K. Khandelwal, AP Urology and Dr. S.R. Bishnoi, DMS. The Medical Board after going through the record observed that “there was no lack of reasonable care and skill or willful negligence on the part of the treating Doctor/Surgeon”.  However, the District Forum wrongly interpreted the opinion of the Medical Board, mentioned above, and observed that “Meaning thereby, there is negligence on the part of the treating doctor/surgeon, but the same is not willful”.  A perusal of the opinion of Medical Board makes is clear that it was not a case of any kind of medical negligence and deficiency in service on the part of the opposite parties. So, taking into account the report of the Medical Board, the impugned order cannot be allowed to sustain.

13.              Even otherwise, the complainant is blaming the treating doctors on the ground that she did not get any relief though she was operated for removal of stones from her kidney. It is not the case of the complainant that any wrong act was conducted by the treating doctors.

14.              In a celebrated and oftenly cited judgment in Bolam v. Friern Hospital Management Committee, (1957) I WLR 582 (Queen’s Bench Division- Lord Justice McNair observed:

“(i)     a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view….”

15.              In Bolam V. Friern Hospital Management Committee’s case (Supra), oft-quoted as Bolam test, generally accepted as a true enunciation of the meaning of the expression ‘negligence’ by the medical practitioners, McNair J. said:

“In the ordinary case which does not involve any special skill, negligence in law means this:  Some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action.  How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street.  He is the ordinary man.  In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus.  He is the ordinary man.  But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus. Because he has not got this special skill.  The test is the standard of the ordinary skilled man exercising and professing to have that special skill.  A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

16.              In Roe and Woolley v. Minister of Health (1954) 2 QB 66, Lord Justice Denning said: ‘It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way.”

17.              Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & another, III(2005) CPJ 9 (SC), while dealing with the case of negligence by professionals also gave illustration of legal profession. In Jacob Mathew’s case (Supra) it was observed as under:-

“18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of

100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.”

18.              In Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors. (2010) 3 SCC 480, Hon’ble Supreme Court while held as under:-

“Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks”.

19.              In the case in hand, there is nothing on the record to suggest that the treating doctors committed any negligence while conducting operation of the complainant. It is established that Dr. Jetender Rathod-opposite party No.3 is a qualified M.B.B.S., M.S. (Gen. Surgery) from A.I.I.M.S. and M.Ch (Urology).

20.              Having considered the aforementioned principles and the evidence available on the file, the appellants-opposite parties cannot be held guilty of medical negligence. Hence, the appeal is accepted, the impugned order is set aside and the complaint is dismissed.

21.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced: 06.01.2017

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL