Chandigarh

DF-II

CC/749/2017

Ms. Harshita - Complainant(s)

Versus

Director Health & Family Welfare-cum-Principal Medical Officer - Opp.Party(s)

Gaurav Bhardwaj Adv.

31 Aug 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	749 of 2017
Date  of  Institution	:	22.09.2017
Date   of   Decision	:	31.08.2018

 

 

 

 

Harshita d/o Sh.Naresh Chander, aged 8 years, through her father & natural guardian, R/o H.No.1167, DMC, Sector 38-W, Chandigarh.       

 

             ……..Complainant

Versus

 

1]  Director Health & Family Welfare-cum-Principal Medical Officer, Chandigarh Administration, Sector 16, Chandigarh.

 

2]  Head of the Department, Department of Orthopedics, Govt. Multi-Specialty Hospital, Sector 16, Chandigarh.

 

3]  Dr.Kapish Gupta, Department of Orthopedics, Govt. Multi-Specialty Hospital, Sector 16, Chandigarh.

 

……. Opposite Parties

 

BEFORE:  SH. RAJAN DEWAN           PRESIDENT

SMT.PRITI MALHOTRA        MEMBER

                                SH. RAVINDER SINGH        MEMBER

           

 

Argued By: Sh.Gaurav Bhardwaj, Adv. for complainant.

Sh.Ashok Gautam, Govt. Pleader for OPs along with Opposite Party No.3 in person.

 

 

 

PER PRITI MALHOTRA, MEMBER

 

                                The case in brief is that the complainant Harshita, while playing in the park fell down on 23.9.2015 and started having severe pain in her left hand.  She was taken to Sector 16 Hospital, where Opposite Party NO.3 advised X-ray of the complainant. The X-ray was done and it revealed that the complainant had a fractured dislocation of her left hand wrist (Ann.C-1 to C-3).  The Opposite Party No.3 put a plaster on the left hand of the complainant, but just after one hour, the complainant felt sever pain and swelling in her left hand.  The matter was brought to the notice of Opposite Party NO.3, but he did not pay any heed, rather advised the complainant to visit Orthopedic OPD next day and consult an Orthopedic surgeon regarding further treatment.  It is stated that on the next day, when the complainant visited Orthopedic OPD, the doctor present in the OPD told the complainant that her injured hand has to be operated and the same will be done by a Senior Doctor/Surgeon, who shall come after 2-3 days (Ann.C-4 C-6). It is submitted that being dissatisfied with the treatment given at the OP Hospital, the complainant was taken to Fortis Hospital, Mohali where several tests & X-ray were done and the doctor informed the father of the complainant that due to improper treatment given to the complainant at GMSH Hospital, the hand of the complainant has developed certain complications, which requires immediate operation/surgery and having no option, the father of the complainant consented for said surgery (Ann.C-7), which was done accordingly.  It is also submitted that due to the negligence of OP No.3, the condition of the hand of complainant had worsen. It is further submitted that due to carelessness of Opposite Party No.3, the future of the complainant was put to a great risk as wrong treatment would have led to disability of her arm, affecting her future.  A legal notice was also sent to the Opposite Parties, but to no avail.  Hence, this complaint has been filed.  

 

2]       The OPs No.1 to 3 have filed joint reply and while admitting the factual matrix of the case, stated that the X-ray report of the complainant showed fracture on both bones forearm, therefore, an emergency treatment in the form of close reduction and POP slab was given to her immediately and was advised to get check X-ray i.e. repeated X-ray and to come up along with same for review in the next morning in Ortho OPD.  However, the complainant never reverted back to OPD for further follow up/treatment. It is stated that though the patient and her father has annexed new OPD card of dated 24.9.2015 (Ann.C-6), but it can be seen that they had not consulted any doctor on duty on the said date as the OPD card is blank and nothing was advised on it by any of the doctor. It is denied that any casual approach was adopted in treatment of the complainant.  It is also denied that there was any negligence or carelessness in the treatment so given to the complainant.  It is submitted that perusal of the documents/record attached by the complainant would clearly show that no surgery had been conducted at Fortis Hospital by doctors and only close reduction and POP Cast had been given i.e. the same procedure which would be provided/undertaken by the OPs, had the patient returned on 24.9.2015.  Pleading no deficiency in service and denying rest of the allegations, the OPs have prayed for dismissal of the complaint.

 

3]       Rejoinder has also been filed by the complainant thereby reiterating the assertions as made in the complaint and controverting that of the OPs made in their reply.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and have also perused the entire record.

 

6]      At the outset of this order, we would like to discuss the preliminary objection raised by the OPs that the complainant does not fall under the definition of ‘consumer’ as well the medical care provided by the answering OPs does not fall within the meaning of the term ‘service’ as defined in the Consumer Protection Act, 1986 as the OP Hospital is owned and managed by Chandigarh Administration and is providing the health care services without any charge or consideration.  Such stand of Opposite Parties is not tenable in the light of Ann.C-3, so placed on record by the complainant whereby the complainant had paid an amount of Rs.40/- to the OP Hospital towards investigation charges.  Thus the objection raised is overruled.

 

7]       It is the second objection of the OPs that the present complaint is not maintainable as the present case has not been referred to any Medical Board for expert opinion as per law laid down by Hon’ble Supreme Court of India in Martin F.D.’Souza Vs. Mohd. Ishfaq, (1) 2009 CPJ 32 (SC).  

 

         This objection too is not tenable since a contrary view has been taken by the Hon’ble Supreme Court of India in subsequent judgment titled V.Kishan Rao Vs. Nikhil Super Speciality Hospital, 2010 CTJ 868 S.C. declaring the view taken in the Martin F.D.’Souza Vs. Mohd. Ishfaq is per incurium and the Hon’ble Supreme Court has also held that it is not mandatory that every case of medical negligence be referred to the Medical Board.

 

8]       Due consideration of the merits of the complaint transpires that no negligence is to be attributed on the part of the OP Doctor, who attended the complainant/patient vide her visit to the OP Hospital on 23.9.2015 and rendered proper treatment as acceptable by a responsible body of other medical professionals with expertise in that particular area. 

 

9]       For the opinion above, we are duly been guided by the judgment of the Hon’ble Apex Court titled as Indian Medical Association Vs. V.P.Shantha & Others, 1995 (6) SCC whereby it is held that one of the duty of the doctor is in deciding what treatment is to be given and also duty to take care in the administration of treatment.  A breach of any of these duties may lead to an action for negligence.  On the subject in hand, we are also guided by the Bolam’s Test, as laid down in Bolam vs. Friern Hospital Management Committee, 1957 1 WLR 582, which is an English Tort Law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving Skilled Professional.  The following principle was laid down in the referred judgment: -

 

"A Doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of other medical professionals with expertise in that particular area.”

 

 

10]      We thoroughly perused the record before us in the light of the above referred judgments and also in views of Bolam’s Test, as discussed.

 

11]      Ann.C-I i.e. OPD Card of the patient/complainant reveals that due procedure as prescribed by the medical standards/protocol was followed to treat the complainant and thereafter she was advised for the check-up, X-ray and follow up.  It is so evident on record that though the father of the complainant/patient got prepared the OPD Card to see the doctor on the next day, as advised, but never visited the doctor in actual for the reasons best known to him and preferred to get the treatment from Fortis Hospital, it being an empanelled hospital under the insurance policy obtained by the father of the complainant.  It is so admitted/averred in the complaint that out of the total treatment cost incurred on the treatment i.e. Rs.32,752/-, an amount of Rs.27,582/- was paid by the Apollo Munich Health Insurance Company and only Rs.5,170/- was paid by the father of the complainant.  The doctor at Fortis Hospital nowhere commented adverse about the treatment given to the complainant at OP Hospital, rather the same line of treatment was followed to cure the patient/complainant under GA.

 

12]      No expert opinion has been placed on record by the complainant to prove that the line of treatment adopted by the OP Doctor was wrong or there was any negligence on the part of the OP Doctor; who is also well qualified in his subject.    

 

13]      In view of the above discussion, we are of the opinion that the complainant has miserably failed to establish any medical negligence on the part of OPs.  Therefore, the present complaint stands dismissed being without merit.  No order as to costs.

         Certified copy of this order be sent to the parties, free of charge. After compliance, file be consigned to record room.

Announced

31^st August, 2018                                      

                                                                                                Sd/-

                                                                   (RAJAN DEWAN)

PRESIDENT

 

sd/-

 (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER