DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB)
CC No. 154 of 05-04-2010 Decided on : 08-04-2011
Jagwinder Singh Gill S/o Sh. Jasmail Singh Gill R/o A-22, Officers Colony, Civil Station, Bathinda. .... Complainant Versus M/s. Delhi Heart Institute & Research Centre, Namdev Marg, 40 Ft. Road, Bathinda, through its Proprietor, Dr. Naresh Goyal. Dr. Naresh Goyal, Delhi Heart Institute & Research Centre, Namdev Marg, 40 ft. Road, Bathinda. Dr. K L Bansal, Delhi Heart Institute & Research Centre, Namdev Marg, 40 Ft. Road, Bathinda. United India Insurance Co. Ltd., Divisional Office, 2090-B, The Mall, Bathinda through its Divisional Manager
.... Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Ms. Vikramjit Kaur Soni, President Dr. Phulinder Preet, Member Sh. Amarjeet Paul, Member
For the Complainant : Sh. N.K. Jeet, counsel for the complainant For the Opposite parties : Sh. Nand Lal Garg and Sh. Sushil Kumar Singla, counsel for opposite party Nos. 1 to 3 Sh. Sunder Gupta, counsel for opposite party No. 4.
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT
This complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). The complainant had pain in his left arm from neck downwards on 17-05-2009. This pain was occurring for the last some days but on that day, its intensity increased. Kanwar Yadwinder Singh, nephew of the complainant took him to opposite party No. 1 at about 7.30 a.m. for medical check-up and treatment, where he was checked by Dr. Naresh Goyal. Sh. Sukhbir Singh Sidhu, resident of Shant Nagar, a friend of the complainant also reached there. Dr. Naresh Goyal i.e. opposite party No. 2 conducted ECG upon the complainant, results of which were found normal. In the evening of the same day, opposite party Nos. 2 & 3 subjected the complainant to ECHO test. The results of ECHO test were also normal. The opposite party Nos. 2 & 3 conducted some more tests, results of which showed that the complainant was not suffering from any serious heart disease. The complainant alleged that despite finding all the above tests being normal, the opposite party under a well planned conspiracy, put the complainant on oxygen and admitted him in the Intensive Care Unit. The complainant, his nephew Kanwar Yadwinder Singh and friend Sh. Sukhbir Singh repeatedly pleaded with opposite party No. 2 that the pain from which the complainant was suffering is due to cervical problem, but he did not listen to them. On 18-05-2009, the opposite party No. 2 subjected the complainant to invasive Angiography without obtaining any consent from him or any of his family members. He did so despite the fact that no heart disease was detected in various tests conducted earlier by the opposite parties and as such, the angiography was neither required nor advisable. By conducting the above said invasive angiography upon the complainant, against the medical requirement and without the consent of the complainant, the opposite parties voluntarily caused hurt to the complainant by dangerous means, on vital parts of his body and also caused a lot of bodily discomfort and mental as well as physical pain. After conducting Angiography, the opposite party No. 2 told the complainant in the presence of his nephew Kanwar Yadwinder Singh and friend Sukhbir Singh Sidhu that the arteries of his heart are blocked and that he has to be operated upon as two stents are required to be put on his diseased arteries and asked the complainant to immediately arrange a sum of Rs. 2.50 Lacs to meet the expenditure of said operation. The opposite party No. 2 further told the complainant that the condition of his heart is very serious and to show the seriousness, he directed the complainant to remain completely confined to bed and not to make any physical movement even for answering the calls of nature. The complainant and his family members were shocked and as a result of all this, the complainant underwent suffering from hyper-tension. While the wife of the complainant was arranging the sum of Rs. 2.50 Lacs for his operation , Kanwar Yadwinder Singh took the medical record and reports of various tests conducted upon the complainant to some other doctors for seeking their opinion. The said doctors on perusing the medical record and test reports concluded that the complainant was not suffering from any serious heart disease and there was absolutely no necessity for him to undergo heart operation or to put stents in his arteries. The complainant requested the opposite party No. 2 to discharge him from the hospital, but he insisted on keeping him admitted and to operate upon him. The complainant got himself discharged from hospital of opposite party No. 2 with great difficulty. On 19-05-2009, the complainant's nephew, friends and wife got him discharged from the hospital of the opposite parties and opposite party No. 2 charged a total sum of Rs. 34,993/-was charged for the medical treatment given to the complainant. On 20-05-2009, the complainant got himself checked upon from Dr. Navdeep Garg, who diagnosed him to be suffering from cervical spondylitis and advised certain exercises and massages with which condition started improving. In order to be sure about the alleged heart problem, the complainant got himself checked up from Dr. Vital Gupta, M.D. Who confirmed that the complainant was not suffering from any serious heart ailment requiring surgery. He further referred the complainant to Dr. Kailash Goyal, who is an Orthopedic doctor for check up who after conducting X-ray etc., opined that the complainant was suffering from cervical spondylitis. On 1-6-09, the complainant got himself again checked from Dr. Rajesh Jindal and Dr. H S Chahal, who are Heart Specialists and showed to him reports of various tests conducted by the opposite parties. These doctors also opined that the complainant was not suffering from any such heart disease requiring surgery and putting up stents in his arteries. On 1-6-09, the complainant got himself re-examined from Dr. Vitual Gupta, who confirmed that the complainant was not suffering from any serious heart problem and there was absolutely no medical basis for subjecting the complainant to invasive angiography, when the ECG and ECHO tests of the complainant were normal. On 2-7-2009, the complainant got himself checked up from Dr. G.S. Wander, Chief Cardiologist Hero DMC Heart Institute, Ludhiana. He too diagnosed the complainant to be suffering from hypertension and cervical spondylitis. The complainant alleged that he submitted a complaint to SHO Police Station, Kotewali, Bathinda and to SSP, Bathinda, for registration of a criminal case against the opposite parties. The complainant further alleged that opposite party No. 2 in connivance with opposite party No. 3 forged and fabricated the evidence. The opposite party No. 2 fabricated a false consent letter dated 18-05-2009 signed by one Amrinder, alleged to be the brother of the complainant and authorised to consent for the patient, while in fact the complainant has got no brother or relative by that name. The opposite party No. 3 signed on this “Informed Consent Form' as witness. There was absolutely no necessity of taking consent from any relative of the complainant when the complainant himself was conscious and in a position to give consent. The consent from a relative, friend or attrendant is to be obtained only if the patient is minor or unable to affix his signature due to any disability. The complainant alleged that the opposite parties in connivance with each other also tampered with the medical record of the complainant which was in their custody. The complainant had never complained of any chest pain. He had complained of only a pain in the left arm originating from the neck and going downwards but the opposite parties subsequently noted chest pain to cover their negligence and criminal activities. Similarly, the opposite parties removed all mentions of original ECG report from the medical record. They made many other alternations also and thus tampered with the medical record of the complainant. The complainant filed a criminal complaint against opposite party Nos. 2 & 3 in the court of Chief Judicial Magistrate, Bathinda. The said complaint is now pending in the court of learned Sh. Parinder Singh, Hon'ble Judical Magistrate, Ist Class, Bathinda. The Hon'ble court has summoned opposite party No. 2 Dr. Naresh Goyal to face trial u/s 324, 420, 511, 465, 471. 120-B IPC and opposite party No. 2 Dr. K L Bansal to face trial u/s 465, 471, 120-B IPC. The complainant alleged that there is gross negligence, deficiency in service and malafide intention on the part of the opposite parties on the following grounds : a) The opposite party No. 2 has wrongly diagnosed the complainant as a serious heart patient requiring operation and putting of stents. With the intention to extort Rs. 2.50 Lacs from the complainant, the opposite parties prepared a false and fabricated report of his angiography, declaring him to be a serious heart patient requiring operation and advised Myocardial Revascularization i.e. putting in stents while the complainant was not suffering from any serious heart disease and was in fact suffering from cervical spondylitis. b) The opposite party No. 2 illegally subjected the complainant to invasive angiography, without obtaining his consent as required under the law c) The opposite party No. 2 fully knowing that complainant was not suffering from any serious heart problem and was suffering merely from cervical spondylitis, put the complainant on oxygen, admitted him in the ICU to falsely show that the complainant was a serious heart patient and cheated him of Rs. 34,993/-. d) The opposite parties have prepared false and forged evidence such as false consent letter dated 18-5-2009 in their support. e) The opposite parties grossly violated medical ethics and the rules framed by the Indian Council under the IMC Act. Instead of acting according to Hippocratic Oath, their main aim was to obtain money from the complainant through cheating and extortion. The opposite party Nos. 1 to 3 have filed their joint written statement and have taken legal objections that complainant has not pleaded any medical negligence of the opposite parties with respect to treatment given to the complainant and as such the complainant is not consumer as defined under the 'Act'. Besides, this the subject matter is pending before the learned Judicial Magistrate Ist Class, Bathinda, as such this Forum has no jurisdiction to entertain and try the complaint ; the allegations levelled by the complainant against the opposite parties relate to errors and omissions and negligence (though specifically denied) and the same do not fall within the purview of the 'Act' and as such, complaint is liable to be dismissed; the complaint is not verified, so the same is liable to be dismissed. The opposite parties have pleaded that on 17-05-2009, in the morning hours, opposite party No. 2 received a telephonic calls on his mobile from Dr. Jagjit Singh Bahia, who disclosed about the critical condition of the complainant and asked opposite party No. 2 to reach the hospital at the earliest in emergency and on hearing the call, opposite party No. 2 immediately rushed to the hospital. The complainant was brought in Delhi Heart Institute and Research Centre, (opposite party No. 1) in emergency by his brother Harvinder Singh Gill, who gave his mobile No. 98726-20578, alongwith Dr. Jagjit Singh Bahia, MD (Medicines) working in Adesh Institute, Barnala Road, Bathinda and number of other persons also accompanied them. At that time, the complainant had severe left sided chest pain radiating to left arm and shoulder associated with perfuse sweating for the last 45 minutes, restlessness and “Ghabrahat” due to severe pain. With these symptoms, the complainant firstly visited Dr. Jagjit Singh Bahia, who suspected the complainant as patient of Cardiac problem and he gave him S/L (Sub-Lingual) Nitrates (Drug used to relieve the patients from chest pain resulting from Cardiac problem) and Analgesic in the form of Tablet Sorbitrate to give some relief to the patient from chest pain. As the symptoms did not improve, the complainant was shifted alongwith treating physician to opposite party No. 1. The complainant and attending physician also gave the history of mild chest pain radiating to left arm on and off for the last 2/3 days which became very severe in the morning of 17-05-2009 and no history of any urinary or bowl trouble, no history of diabetes (DM), no history of COPD, TB etc., but having history of hypertension as positive and history and examination was prepared. The complainant was given VIP treatment because of his associates and back history. Even before admitting the complainant, ECG was done at 8.15 a.m. on 17-05-2009, thereafter it was again done at 9.00 a.m. and then at 9.20 a.m. In view of strong clinical history and chest pain and ECG changes, the patient was advised to be admitted and as per desire of the complainant and number of his attendants, the complainant was admitted at 9.30 a.m. on 17-5-2009 and was shifted to ICCU. The complainant being diagnosed as Cardiac patient in view of strong clinical history and chest pain and ECG changes, he was put on anti-anginal drugs, which is only treatment under such symptoms/presenting complaints. The ECG was done from time to time i.e. at 3.15 p.m. and at 5.54 p.m. on 17-5-2009, again at 6.45 a.m. on 18-5-2009. The opposite parties have denied that the complainant was got admitted by his nephew Kanwar Yadwinder Singh, and Sukhbir Singh Sidhu of Shant Nagar, Bathinda, reached in the clinic or that they introduced himself to any of the doctors or the ECG was normal. The ECHO test was done keeping in view the history of hypertension and many more tests were conducted in order to diagnose the problem being faced by the complainant. The total observations and medicines administered from time to time are part and parcel of the Bed Head Ticket of the complainant maintained by opposite party No. 1. The clinical observations and changes in ECG necessitated to admit the complainant in ICCU and it was so desired by all the attendants and also by the complainants under the pretext that best precaution are taken qua the problem of complainant. The opposite parties have denied that the complainant or his nephew, namely Kanwar Yadwinder Singh or his friend Sh. Sukhbir Singh pleaded with opposite party No. 2 that the complainant was suffering from cervical problem. In fact the complainant was rushed to the opposite party No. 1 by the treating doctor Dr. Jagjit Singh Bahia, M.D. (Medicines) working in Adesh Hospital, Bathinda. The complainant was complaining severe chest pain and history of sweating and as such, he was put to oxygen and to put the cardiac patient to oxygen is the normal way of treatment. The opposite parties have also denied that on 28-05-2009, the complainant was subjected to invasive angiography without obtaining any consent from the complainant or any of his family members or that the angiography was done against the medical requirement or that by doing angiography, the opposite parties have caused any hurt to the complainant by dangerous means or to the vital parts of his body or caused any bodily discomfort and mental as well as physical pains. On 18-05-2009, the opposite party No. 3 Dr. K L Bansal obtained the consent of Amrinder Singh, who posed himself to be brother of the complainant for doing angiography, as at that time the complainant was on bed No. 4 in ICCU and said Amrinder Singh signed the consent form. The opposite parties have pleaded that the inquiries have revealed that Amarinder Singh is son of Sh. Hakam Singh. Resident of V. Khemuana and now putting up on Bhagu Road, Bathinda. He is very close friend of Harvinder Singh, borther of complainant. The inquiries have also revealed that sh,. Kulwinder Singh, brother of Amarinder Singh, happended to be posted as lecturer (Pol. Scienece) in Govt. Sr. Sec. School, Ghanda Wanna (Ferozepur), was involved in case FIR No. 68 dated 16-11-2002 registered with P.S. Vigilance Bureau, Ferozepur under Sec. 420/467/468/471 IPC read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act and he was allowed bail vide order dated 30-05-2003 and his surety bonds were given and Sh. Gurbachan Singh son of Mehar Singh son of Roor Singh, resident of V. Khemuana stood as surety and Balbir Singh Lamberdar son of Balwant Singh and Amarinder Singh (who signed the consent form) son of Hakam Singh residents of Khemuana were attesting witnesses. The bail bonds were accepted by Sh. Surinder Mohan, then CJM Bathinda on 31-05-2003. The signatures of Amrinder Singh on the bail bonds and his signatures on the consent form required to be compared. A casual look of the signatures on consent form and on surety form revealed that consent form has been signed by S. Amarinder Singh son of Hakam Singh. Moreover, he stands identified to be the same man, who in good faith signed the consent form for angiography. The attendants of the complainant deposited Rs. 8650/- being the charges of angiography vide receipt No. 2756 dated 18-05-2009 and after obtaining the consent of Amarinder Singh, the angiography was conducted on the complainant and the same was done successfully without causing any pain and the complainant was discharged on the following day i.e. 19-05-2009. The angiography is part of investigation to diagnose the extent of blockage in the coronary arteries and all was done to the knowledge of the complainant and his attendants. The complainant himself was in his full senses when the angiography was done. It is a common observation that while obtaining consent deep inquiries with regard to relationship etc., are not made and every thing is taken in good faith and the relationship of the attendants with the patient is not doubted at such stage. The opposite parties never indicated that the arteries of heart of the complainant are blocked or that he is to be operated upon or that two stents are to be put in. The opposite parties have denied that they asked the complainant to arrange Rs. 2,50,000/- for meeting with the alleged expenditure of any operation. The result of angiography showed 30% mid stenosis in right coronary artery, normal in left main, 20% mid stenosis and 40% Ostial stenosis in D1 (Diagonal) in the left interior descending artery and normal in left circumflex and in summary it was made clear that non-critical CAD. It is no where mentioned that any stent is required/advised to be implanted. Normally when the patient is put for invasive interventional cardiology, the stents are put after consultation with the patient to avoid any repeated invasive interventional cardiology. In the Bed Head Ticket maintained for the patient each and every observation was put in black and white and the patient was discharged on 19-05-2009 in the morning hours and the patient (complainant) was advised to continue with medicines. The complainant was treated to the best of ability by the opposite parties and other attending staff and every development in the shape of improvement was indicated in the Bed Head Ticket and the improvements led the complainant to be discharged on the following day after conducting angiography. Whenever clinical indications conveys heart problem being faced by the patient, all the tests i.e. ECG, ECHO, angiography deciphered in the Bed Head Ticket are routine one and no Heart Specialist can afford not to conduct the clinical tests. The opposite parties never conveyed that the condition of the complainant is very serious. The record placed on file by the complainant itself conveys that after conducting angiography it was declared on 18-5-2009 at 5.00 p.m. that the complainant is normal. At the time of discharge, normal advices incorporated in the prescription slip with regard to medicines in writing were given and beyond that no other advice was given. If at all there is any seriousness of disease, the same is not disclosed to the patient in order to avoid any shock. The complainant was discharged from the hospital after full satisfaction keeping his well being. The opposite parties have denied that opposite party No. 2 insisted on keeping the complainant admitted in the hospital for operation or that the complainant was got discharged with great difficult or that he was being pressurized to undergo operation and to get the stents put or he was frightened that if he failed to act upon his advice his life will be in danger. The complainant was discharged next day after conducting angiography, especially when the angiography conveyed non-critical CAD. The opposite parties have further pleaded that the complainant might have gone to Dr. Navdeep Garg, who is running Physiotherapy clinic, but he is not running any medical centre for dispensing any medicines regularly and his observations have nothing to do qua the condition of the complainant as on 17-05-2009. On 17-05-2009, the complainant's own medical consultant having qualification of MD (Medicines) working with Adesh Hospital gave every treatment at his own level and ultimately took the complainant to the opposite parties. Thereafter the complainant might have got himself checked from Dr. Vitul Gupta, M.D. who stated that the complainant was not suffering from any serious heart ailment requiring surgery. The complainant had made a complaint to the Senior Superintendent of police, Bathinda against the opposite parties and the SSP Bathinda sent the total treatment record of the complainant to the Civil Surgeon, Bathinda for medical opinion. On this, the Civil Surgeon, Bathinda, constituted a Board of Doctors consisting of Dr. Charanjit Garg, SMO, Chairman Medical Board, Dr. K K Goyal, MD. (Medicines) and Dr. Parminder Bansal M.D. (Medicines) and the Board submitted a report to the Civil Surgeon, Bathinda, vide D. No. 3068 dated 12-06-2009 and the Board of doctors gave their opinion that since the ECG report indicated certain abnormal findings it was necessary to take angiography test of Jagwinder Singh, as to know the extent of coronary artery disease and it has also been conveyed that the person was suffering from heart disease and that the said person was not suffering from any serious heart disease and could be managed by conservative treatment, which is in consonance to the discharge slip dated 19-05-2009 issued at the time of discharge of the complainant. The opinion of Dr. Vitul Gupta and Dr. Kailash Goyal may be correct in accordance to their own observation, but these reports are afterward and have no concern or bearing with the critical condition of the complainant as on 17-05-2009 when he was rushed to the hospital of the opposite parties. The complainant had got himself checked from Dr. Rajesh Jindal and Dr. H S Chahal and they might have opined that the heart disease to the complainant does not require surgery or putting up stents in the arteries. Further the complainant got himself re-examined from Dr. Vitul Gupta. After angiography it was clearly put in words “Non-critical CAD” and no stent was ever advised to be implanted in the arteries. The complainant has opted to file this complaint on verbal allegations, which never came in picture. The opposite parties do not agree with any report of any doctor whosoever that the angiography was not needed. No operation of implanting the stents was ever done nor was ever advised. The opposite parties treated and advised the complainant to the best of their ability. The opposite parties have further pleaded that complainant might have got himself checked from Dr. G S Wander. Chief Cardiologist, DMC Heart Institute, Ludhiana on 02-07-2009. Even Dr. G S Wander has diagnosed the complainant as patient of hypertension, CAD Non-critical and cervical spondylitis. However on 17-05-2009 when the complainant was brought to the opposite parties for treatment, his complete history was noted down and keeping in mind the then situation prevailing with the complainant, treatment was given as per then diagnose to the best of ability of the opposite parties and opinion of Dr. G S Wander is dated 02-07-2009 i.e. after about 1-1/2 month. Even Dr. G S Wander endorsed that complainant was suffering from hypertension CAD non-critical. On 17-05-2009, in the morning the complainant was brought in emergency condition accompanied by Dr. Jagjit Singh Bahia. The opposite parties have denied that they have tried to dupe the complainant for about Rs. 3,00,000/- through misrepresentations or wrong medical advice. The complainant submitted a complaint to the Senior Superintendent of Police, Bathinda, for registration of a criminal case against opposite party No. 2 & 3, but however the SSP Bathinda, after taking advice from Civil Hospital, Bathinda and after recording statement of Dr. Jagjit Singh Bahia opted not to proceed against opposite party Nos. 2 & 3 and no case has been registered. The opposite parties have denied that consent letter dated 18-05-2009 was ever fabricated. There was no malafide intention or ill-will on the part of the opposite parties in obtaining the signatures of any attendant on the consent form and the things are done under complete good faith. The opposite parties have also denied that they have tampered with the record. The history of the complainant has been scribed by the opposite parties and their other staff as disclosed by the complainant himself and by Dr. Jagjit Singh Bahia treating doctor. The opposite parties have pleaded that forgery is liable to be proved not presumed. The opposite party No. 4 has filed separate written reply and pleaded that Doctor Profession Indemnity (Medical Establishment) Policy No. 200400/46/09/32/00000076 effective from 9-5-2009 to 8-5-2010 issued to opposite party No. 1 is a contract of insurance to indemnify the insured regarding the legal liability/award/order. The insured has violated the terms and conditions of the policy, under which the policy was issued, so even then if any negligence of opposite party Nos. 1 to 3 is proved, even then the opposite party No. 4 is not liable to pay any compensation. Although, the insurance company is not liable to pay any compensation to the complainant nor opposite party Nos. 1 to 3 have caused any negligence in treatment or the complainant, yet if this Forum comes to the conclusion that the opposite party Nos. 1 to 3 are liable in any manner, then liability of opposite party No. 4 to indemnify the insured for any one year is Rs. 50.00 Lacs and for any one accident is Rs. 12.50 Lacs less compulsory excess clause. Parties have led evidence in support of their respective pleadings. Arguments heard and written submissions submitted by the parties perused. The complainant alleged that there is gross negligence, deficiency in service and malafide intention on the part of the opposite parties on the following grounds : a) The opposite party No. 2 has wrongly diagnosed the complainant as a serious heart patient requiring operation and putting of stents. With the intention to extort Rs. 2.50 Lacs from the complainant, the opposite parties prepared a false and fabricated report of his angiography, declaring him to be a serious heart patient requiring operation and advised Myocardial Revascularization i.e. putting in stents while the complainant was not suffering from any serious heart disease and was in fact suffering from cervical spondylitis. b) The opposite party No. 2 illegally subjected the complainant to invasive angiography, without obtaining his consent as required under the law c) The opposite party No. 2 fully knowing that complainant was not suffering from any serious heart problem and was suffering merely from cervical spondylitis, put the complainant on oxygen, admitted him in the ICU to falsely show that the complainant was a serious heart patient and cheated him of Rs. 34,993/-. d) The opposite parties have prepared false and forged evidence such as false consent letter dated 18-5-2009 in their support. e) The opposite parties grossly violated medical ethics and the rules framed by the Indian Council under the IMC Act. Instead of acting according to Hippocratic Oath, their main aim was to obtain money from the complainant through cheating and extortion. Besides these, the complainant has levied many more allegations such as that he was taken to hospital by his cousin Kanwar Yadwinder Singh not by Dr. Jagjit Singh Bahia. The person who signed the consent form for angiography test is not his brother. He is having only one brother Harvinder Singh. Admittedly Jagwinder Singh Gill, was admitted in hospital opposite party No. 1 on 17-05-2009 with complaint of pain in left arm from neck downwards. The learned counsel for the complainant has submitted that complainant approached opposite party No. 2 with Kanwar Yadwinder Singh, his nephew and friend Sukhbir Singh Sidhu whereas the submission of learned counsel for opposite party Nos. 1 to 3 is that the complainant was brought to opposite party No.2 by Dr. Jagjit Singh Bahia, MD (Medicines) working in Adesh Institute, Barnala Road, Bathinda, Harvinder Singh Gill, brother of the complainant and number of other persons. To prove their version, the opposite parties have filed affidavit of Dr. Jagjit Singh Bahia Ex. R-5 wherein the said doctor has deposed :- “3. That S. Jagwinder Singh complainant came to my residence-cum-clinic on 17-05-2009 in the morning hours. The deponent was apprised that the complainant is not well, as he is complaining pain on left side of the chest radiating to left arm and shoulder and sensing the gravity of the problem being faced by complainant Sh. Jagwinder Singh, the deponent came down without changing any dress wearing bathroom “Chhappals” and observed that the complainant has perfuse sweating, restlessness and “Ghabrahat” on his face. The deponent gave first aid and bit of treatment to subside the pain, but the pain did not subside. 4. That the deponent finding no improvement immediately talked to S. Harvinder Singh Gill, elder brother of complainant Sh. Jagwinder Singh through Mobile Phone and both decided that the complainant should be immediately shifted to Delhi Heart Institute and Research Centre, Namdev Marg, Bathinda. The deponent sensing emergency immediately talked to Dr. Naresh Goyal of Delhi Heart Institute and Research Centre on his mobile phone and asked him to reach the Hospital immediately. The deponent himself drove the car of complainant Sh. Jagwinder Singh Gill while wearing bathroom “Chhappals”. Sh. Harwinder Singh Gill, elder brother of complainant Sh. Jagwinder Singh accompanied with another man probably one Sukhbir Singh of V. Lehra Sondha reached in Delhi Heart Institute and Reserch Centre directly.” On the other hand, to prove his version that Kanwar Yadwinder Singh, nephew of the complainant took the complainant to opposite party Nos. 1 & 2, the complainant has produced on file affidavit of Kanwar Yadwinder Singh Ex. C-54, which has been tendered by the complainant in his additional evidence after closing the evidence by the opposite parties. Further after closing the evidence by the opposite parties, the complainant moved an application for additional evidence by pleading that while preparing the arguments in this case, he has come to know that one Dr. Jagjit Singh Bhaia has claimed through an affidavit that he initially provided treatment to the complainant and accompanied the complainant, whereas the opposite party Nos. 1 to 3 in their written reply has clearly mentioned this fact. Thus, the affidavit Ex C-54 placed on file by the complainant is afterthought and filed by the complainant only as a counter blast to rebut the evidence of the opposite parties. A perusal of Ex. R-6 Admission Registration Form also reveals that complainant was referred by Dr. Jagjit Singh Bahia. Thus, this Forum is of the considered view that Dr. Jagjit Singh Bahia brought the complainant to opposite party Nos. 1 & 2 for treatment. The complainant reached the hospital of the opposite parties on 17-5-2009 at 7.30 a.m. for medical check-up and treatment where he was checked by opposite party No. 2 i.e. Dr. Naresh Goyal. The opposite parties have specifically mentioned that at that time, the complainant had severe left sided chest pain radiating to left arm and shoulder associated with perfuse sweating for the last 45 minutes, restlessness and “Ghabrahat” due to severe pain. Before admitting the complainant, ECG was done at 8.15 a.m. thereafter it was again done at 9.00 a.m. and then at 9.20 a.m. In view of strong clinical history and chest pain and ECG changes, the complainant was put on anti-anginal drugs. The ECG was done from time to time i.e. at 3.15 p.m. and 5.54 p.m. on 17-05-2009 and again at 6.45 a.m on 18-05-2009. The ECG reports of the complainant were not normal. In the evening of the same day, the opposite party Nos. 2 & 3 subjected the complainant to ECHO test. The ECHO test was done keeping in view the history of hypertension and many more tests were conducted in order to diagnose the problem being faced by the complainant. The clinical observations and changes in ECG necessitated to admit the complainant in ICCU and it was so desired by all the attendants and also by the complainant. The complainant has placed on file Ex. C-10 i.e. various ECG reports wherein it has been specifically mentioned “unconfirmed reports”. The unconfirmed reports of ECG themselves prove that to diagnose the problem of the complainant, ECHO test was required. The complainant has alleged that despite finding all the above tests being normal, the opposite party under a well planned conspiracy put the complainant on oxygen and admitted him in the Intensive Care Unit. As discussed above, the clinical observations and changes in ECG necessitated to admit the complainant in ICCU and in view of the fact that the complainant was complaining severe chest pain and history of sweating and as such, he was put to oxygen which is the normal way of treatment. Moreover, the complainant has approached the opposite party Nos. 1 & 2 in the morning hours i.e. at 7.30 a.m. which itself proves that the complainant visited the hospital in emergency and his condition was such which required immediate treatment/admission and clinical investigations. The attendants of the complainant deposited Rs. 8650/- being the charges of Angiography vide receipt No. 2756 dated 18-05-2009 and after obtaining the consent of Amrinder Singh, the angiography was conducted on the complainant . The angiography is part of investigation to diagnose the extent of blockage in the coronary arteries and all was done to the knowledge of the complainant and his attendants who deposited the necessary charges for the same. The complaint himself was in his full senses when the angiography was done and this fact is not denied by the complainant as he has no where stated that at any time he was not in sense. A perusal of “Informed Consent” reveals that it has been signed by the one Amrinder Singh and against the column of Relationship, brother has been mentioned. A judicial notice can be taken in this regard that while signing the consent form even for minor test/surgery, where any type of risk is involved, threatens a person on whom it is to be conducted, that increases his pain and agony to the extent that he is unable to give consent for any operation/test. In such circumstances, the consent is obtained from the attendant of the patient. The complainant was admitted in ICCU being hypertensive and suffering from severe pain. To diagnose the problem, angiography was necessary. In such circumstances, deep inquiries with regard to relationship etc., are not made and every thing is taken in good faith and the relationship of the attendants with the patient are never doubted. In such a situation, the attendant who come forward to give consent voluntarily, the doctor takes his consent bonafidely without inquiring about each and every person and his/her relationship with the patient. Moreover, as discussed above, the attendants of the complainant deposited Rs. 8650/- being the charges of angiography which again shows the consent of complainant as well as his attendants. Hence this Forum concludes that the angiography was done after obtaining the consent of the attendant of the complainant. A perusal of angiography report Ex. C-13 reveals Indication _ CAD (Unstable Angina) 30% mid stenosis in right coronary artery, normal in left main, 20% mid stenosis and 40% ostial stenosis in D 1 (Diagonal), Left circumflex normal and in Summary Non-Critical CAD, LV Angio not done, Advised Myocardial Revascularisation. The complainant made a complaint to the Senior Superintendent of Police, Bathinda against the opposite parties and the SSP Bathinda sent the total treatment record of the complainant to the Civil Surgeon, Bathinda for medical opinion. On this, the Civil Surgeon, Bathinda, constituted a Board of doctors consisting Dr. Charanjit Garg, SMO, Chairman Medical Board, Dr. K K Goyal, M.D. (Medicines) and Dr. Parminder Bansal M.D. (Medicines) and the Board submitted a report to the Civil Surgeon, Bathinda, vide D. No. 3068 dated 12-06-2009 and the Board of doctors gave their opinion which reads as under :- “....1. That since ECG report indicated certain abnormal findings, it was necessary to undertake Angiography investigation of Jagwinder Singh, noted above, so as to know the extent of coronary artery disease. 2. That it is correct that above noted person was suffering from heart disease. 3. That the said person can be managed by conservative treatment. 4. That the said person was not suffering from any serious heart disease.” This Forum vide order dated 13-04-2010 sent the case file of the complainant to Civil Surgeon, Bathinda, requesting him either to examine the case by himself or constitute a Board of expert doctors to give opinion as to whether the treatment given to complainant was as per the norms and accepted principles of medical science vis-a-vis diagnose of the patient. Accordingly, the board was constituted consisting Dr. Parvinder Kular M.S. Ortho, Dr. R Maheshwari, MD Medicine and Dr. K K Goyal, MD Medicine and the report of Board reads as under :- “We the members of board are of opinion that patient was investigated by the concerned doctors for chest pain severe in nature. ECG showed certain changes. Echocardiography showed mild concentric hypertrophy. But E.C.G. and Echocardiography does not rule out that patient would not have any heart problem. ECG and Echo may be normal still patient can have heart problem (acute coronary syndrome). So concerned doctor might have done angiography only after assessing the clinical condition of the patient in that particular situation. Pain chest should be taken seriously unless and until proved otherwise as heart disease can be life threatening also. In this, patient angiography showed RCA ----30% mild stenosis EAD ---- 20% mild stenosis 40% ostia stenosis Angiography report showed non critical stenosis (in summary report) Myocardia revascularization written on the angiography report may have given by mistake as if doctor had bad intention, he would have changed the angiography report also. In the report, doctor has clearly mentioned that blockage is non critical. Stenting in this patient has not been done. Board is of the opinion that there is nothing seems to be wrong in the management of patient on the part of concerned doctor.” The two main allegation of the complainant are that his consent has not been obtained for angiography and advise was not given according to the report of angiography. The complainant has no where alleged that there is any shortcoming in the treatment till angiography was done. He has not raised any objection that anything was done wrong with him i.e. any wrong treatment was given to him which adversely affected his health. The complainant has alleged that the only thing that caused him mental agony is the advise given in angiography report. Till this report, he was satisfied with his treatment. The opinion of Dr. Vitul Gupta, Dr. Kailash Goyal, Dr. Navdeep Garg, Dr. H S Chahal may be correct in accordance to their own observation, but these reports are afterward and have no concern or bearing with the critical condition of the complainant as on 17-05-2010 when he was rushed to the hospital of the opposite parties. Even Dr. G S Wander, Chief Cardiologist, DMC Heart Institute, Ludhiana vide his opinion dated 2-7-2009 has diagnosed the complainant as patient of hypertension, CAD Non-critical and cervical spondylitis. When the complainant was brought to the opposite parties for treatment, his complete history was noted down and keeping in mind the then situation prevailing with the complainant, treatment was given as per immediate diagnose to the best of ability of the opposite parties and opinion of Dr. G S Wander is dated 2-7-2009 i.e. after about 1-1/2 month. The doctors may differ in advise as every doctor has his own bent of mind to diagnose the disease and to provide the treatment to the patient. A bare perusal of complaint shows that complainant is a well educated person with a par excellence family status. In such circumstances, the doctor also thought giving him best care to the best of his knowledge. As per opinion of medical board/medical study, according to the report of angiography of the complainant, the doctor i.e. opposite party No. 2 should not have advised Myocardial revascularization. On this account only, the doctor could not be held guilty of medical negligence as he has not put the stents. Moreover, the complainant/patient was discharged on 19-05-2009 and further advised him to take medicines which means the doctor/opposite party No. 2, has managed the patient/complainant with conservative treatment. Not only this, Dr. K L Bansal, has issued him medical certificate. In the second para of this certificate Ex. C-17, the complainant was advised bed rest from 20-05-2009 to 10-06-2009 and intake of prescribed medicines and diet etc., and further advised to come for periodical check-ups. The report/advise given by doctor in bonafide manner and with extra caution does not amount to medical negligence. The support can be sought by the law laid down by the Hon'ble Supreme Court in the case titled 2010(1) CPJ 29 (SC) in the case titled Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Others wherein it has been held that :- “.... Medical negligence ......Pre-operative evaluation made – Hemiarthroplasly decided to perform on considering various option available – Respondent consented for choice of surgery after various options explained to him – Decision for choosing hemiarthroplasty not so erroneous to prove it as professional negligence – 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.” The Hon'ble Supreme Court in the aforesaid case has observed that : “According to Halsbury's Laws of England Ed. 4 Vol. 26 pages 17-18, the definition of Negligence is as under :- “22. Negligence ; Duties owed to patient – A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient.” It has also been discussed in the aforementioned case that : “In a celebrated and oftenly cited judgement in Bolam V. Friern Hospital Manament Committee (1957) 1 WLR 582 : (1957) 2 ALL ER 118 (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. The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow line in preference to the other accords also with American law : See 70 Corpus Juris Secundum (1951) 952,953, para 44. Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself negligence ibid 971, para 48). Lord justice McNair also observed : Before I turn that, I must explain what in law we mean by “negligence”. 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 whether there has been negligence or not is not the test of the man on the top of a Claphm omnibus because he has not got this man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligence. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” The adoption of other line of treatment by other doctor does not prove medical negligence on the part of the opposite parties. The support can be sought by the law laid down by the Hon'ble National Commission, New Delhi, in the case titled 2010(1) CPJ 1 (NC) Pushkar Dutt Vs. Christian Medical College and Hospital, Ludhiana and Another wherein it has been held that :- Medical Negligence – Surgery - Necessity disputed – 70%, 50% blockage of arteries reported in angiography report – Petitioner suffered two heart attacks in quick succession - Immediate surgery decided by doctors – Surgery abandoned after reopening of heart, as blood found in pericardium, surgery could have been dangerous to life of patient – No deficiency in service/medical negligence proved – Contention surgery not required to be conducted not acceptable in absence of expert evidence in support – No relief entitled.” As per Consumer Protection Act and Medical Profession by M.K Balachandran – Department of Consumer Affairs, Government of India – in association with – Indian Institute of Public Administration New Delhi, the Duties of a doctor are :-
Doctors generally have certain duties towards their patients. Some of the important duties are : : 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 that 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;
In the case in hand, the complainant alleged in para No. 10 of his complaint that he requested opposite party No. 2 to discharge him from the hospital but the opposite party No. 2 insisted on keeping him admitted and to operate upon. The complainant got himself discharged from the hospital of opposite party No. 2 with great difficulty. The opposite party No. 2 was repeatedly pressurizing the complainant to undergo operation and get stents put saying that if complainant failed to act upon his advise, his life will be in danger. The complainant has failed to prove his this version with any cogent and convincing evidence as a perusal of page 7 of Progress Notes Ex. C-45 shows that patient was stable and discharged in a satisfactory condition on 19-05-2009 at 10 A.M. If the patient has got discharged himself with great difficulty, he must have Left Against Medical Advise i.e. 'LAMA'. No such allegation is proved on file. Moreover, the complainant had sought medical certificate for seeking medical leave being a Government employee, because a doctor cannot issue a medical certificate of his own. It can only be issued on the request of the patient. Hence, this allegation of the complainant is also falsified. The complainant further alleged that the opposite parties have forged and fabricated the medical record. If they would have forged and fabricated the record, the first document which they can forge was angiography report. But, the intentions of the doctor were bonafide, therefore, he has not forged the record as the recording on the Progress Notes, Bed Head Tickets are recorded from time to time which are not manipulated at any stage. The matter in dispute is also pending in civil court. Hence, keeping in view the facts, circumstances and the evidence produced on file by the parties, this Forum is of the view that opposite party No. 2/doctor has done his duty to best of his ability with due care and caution. The complainant has utterly failed to prove by producing any expert evidence that the treatment provided by opposite party No. 2 was not as per medical line/ethics and the treatment given by opposite party No. 2 has caused any harm to the complainant. However, the complainant has produced on file some prescriptions of some doctors who have diagnosed him suffering from cervical spondylitis but is no where mentioned in those prescription slips that treatment given by opposite party No. 2 was wrong in any way. The opposite party No. 2 has acted in accordance with practice as accepted proper by responsible medical body skilled in that particular art while treating the complainant. So long as a doctor follows a practice acceptable to the medical professional of that day, he cannot be held liable for negligence as only advise has been given by him. In the report, doctor has clearly mentioned that blockage is non critical. Stenting in this patient has not been done. Board is of the opinion that there is nothing seems to be wrong in the management of patient on the part of concerned doctor. Hence, this Forum concludes that opposite party Nos. 2 & 3 were not negligent in any manner. Therefore, no deficiency in service is proved against the opposite parties. Thus, this complaint fails and is hereby dismissed without any order as to costs.
Copy of this order be sent to the parties concerned free of cost and the file be consigned.
Pronounced 08-04-2011 (Vikramjit Kaur Soni) President
(Dr. Phulinder Preet) Member
(Amarjeet Paul) Member
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