ORDER

(Per: Mr. D.K. Tyagi, Member):

Sh. Shambhu Prasad Uniyal, Father and Natural Guardian of Master Shivanshu, (hereinafter to be referred as “Complainant”) has filed this consumer complaint before this Commission under Section 12 read with Section 18 of the Consumer Protection Act, 1986, alleging medical negligence committed by opposite party Nos. 1, 2 & 3; Doon Valley Hospital; Dr. Rakesh Mamgain & Dr.(Smt.) Manju Ranjan (Rawat) in his son’s treatment and compensation of Rs. 22,19,320/- (Rupees Twenty two Lacs Nineteen Thousands Three Hundred Twenty Only) alongwith interest 12% per annum from 03.05.2006 till the date of payment.

2.       Briefly stated, the facts of the case are that the consumer complaint is being filed through the father & natural guardian Mr. Shambhu Prasad Uniyal on behalf of the complainant-a minor child age about 10 months approximately.  The complainant was born to Mr. Shambhu Prasad Uniyal (Father) & Smt. Uma (Mother) on 26.03.2006 in Government Hospital, Rishikesh.  He was born by normal delivery.  Both the complainant and his mother were discharged on 28.03.2006 from the said Government Hospital. After one month from the date of birth, the complainant started getting fever, which despite regular treatment persisted and when in high fever, he started getting febrile attacks.  The Doctors of the Government Hospital, Rishikesh advised CT Scan etc. of the complainant to detect the cause.    Dr. Narendra Raturi of the said Government Hospital, who was treating the complainant, contacted Dr. Rakesh Mamgain-opposite party No. 2 and discussed the problem of the complainant and as per advice, the complainant was brought to Dehradun, where he was admitted on 03.05.2006 at Doon Valley Hospital, Dehradun-opposite party No. 1. Immediately after admitting the complainant attending doctor, i.e. opposite party No. 3 therein, advised CT scan of the complainant’s brain.  Hence, as per advice, immediately CT Scan of the complainant was got conducted at Suri Diagnostic and Imaging Center, Dehradun. After CT Scan had been conducted, the complainant was brought back to Doon Valley Hospital on 03.05.2006.  There the attending doctors of Doon Valley Hospital gave a note to the complainant’s father to bring medicines and injections etc. for the child.  The complainant then was put on intravenous drip/injection from 03.05.2006 itself.  In the night of 03.05.2006 when the complainant’s mother was allowed to enter the ward after the intravenous drip/injection had been implanted, for breastfeeding the child, she found that at the site and around where the intravenous drip/injection had been implanted on the right hand of the complainant, the fingers had turned blue.  The nurse on duty immediately was informed.  The said nurse casually stated that it was because of tightness of the band around the wrist.  However, nothing was done despite repeated requests and after much persuasion, the nurse agreed to apprise the opposite parties about the condition of the fingers of right hand of the complainant.  The complainant’s father and mother were called upon to leave the ward thereafter as only patients can stay inside. Attending staff of opposite party No. 1 would look into and take care was stated, but neither the doctors of the opposite party No. 1 attended nor bothered to look into the condition of the complainant.  The next morning on 04.05.2006, the complainant’s father and mother, when were permitted to enter, were taken aback to see that the entire fore arm of the complainant had turned blue and the palm, dark blue during the night.  This condition was again then immediately informed to opposite party Nos. 2 and 3, who informed this is nothing serious.  Casually it was advised that by applying turmeric boiled in hot water three or four times, the condition would become alright and hurriedly the complainant was discharged. The right arm of the complainant was bandaged after covering it with wool and full sleeves T-shirt was put and discharged from the opposite party No. 1.  On the advice of opposite party No. 2, the complainant alongwith his parents returned back to Rishikesh and Turmeric in boiled hot water was applied after removing bandage on the right fore arm, palm and fingers, but there was no improvement.  Seeing the deteriorating condition of the complainant, his parents were alarmed.  Hence the complainant again was brought back to Dehradun on 06.05.2006 to consult the opposite party Nos. 2 & 3 of opposite party No. 1.  However, the attitude of doctors of opposite party No. 1 particularly opposite party No. 2 was simply evasive.  The complainant’s parents being in a fix, hence, alongwith the complainant went to Dr. Sachin Suri, where earlier CT Scan was got done on 03.05.2006.  There a colour Doppler Imaging of the Vessels of Right Upper Limb of the complainant was got conducted by Dr. Sachin Suri at Suri Diagnostic and Imaging Center. The Doppler findings were suggestive of no flow of blood in the Palmer Arch and Digital Arteries on the right arm including the hand of the complainant, i.e. the site where the intravenous drip/injection was implanted by the doctors of opposite party No. 1.  This condition on the right hand of the complainant has developed as a vascular supply of blood to the right hand was occluded, because of very tight bandage applied at the side of intravenous drip/injection applied on the complainant at opposite party No. 1.  However, it was so negligently and tightly applied that the vascular supply to the hand was occluded and as a result whereof Gangrene developed therein.  The cause of developing of Gangrene on the right hand of the complainant, is directly attributable to the negligence of the doctors of the opposite party No. 1 in application of intravenous drip/injection on 03.05.2006 and the bandage therein on a tender child of just about one month.  Proper care, in applying bandage at the sight where intravenous drip/injection had been applied, had not been done due to latches/negligence of the doctors of the opposite party No. 1. That further since there was no relief to the complainant during the stay from 06.05.2006 at Dr. Suri’s Hospital, on the advice the complainant’s father shifted the complainant to PGI, Chandigarh.  Doctors at PGI, Chandigarh on 09.05.2006, after admitting the complainant in Emergency, observed that Gangrene had been developed on the right hand of the complainant due to wrong administration of injection.  There was Gangrene on the fingers as well as dis-colouration of both Palmer and Dorsal Aspects of the complainant’s right hand extending to the fore arm, because of negligence of the doctors of opposite party No. 1. The fingers of the right hand Palm gradually shrinked and become stiff.  Because of the negligence of the doctors of the opposite party No. 1, the complainant’s right hand up to wrist had to be amputated at the level of Metacarpophalangeal joint of the right hand.  That even after amputation of right arm wrist of the complainant treatment at Himalayan Institute Hospital at Jollygrant, Dehradun for Septicemia had to be got done from 10.08.2006. That negligence is writ large on the face of it in conducting medical duties undertaken by the opposite party Nos. 2 & 3 of opposite party No. 1.  Negligence is prima-facie self-apparent, nothing further is required to deduce it.  Due to latches/negligence in performance of medical responsibilities as mentioned above, the complainant has become permanently handicapped and his entire life ruined.  As a result of negligence of doctors of opposite party No. 1, not only the complainant but the complainant’s parents are undergoing mental trauma, agony and the complainant shall throughout his life suffer from the ignominy of no right hand and consequent deformity.  In view of the above on behalf of the complainant, his father had got issued a legal notice dated 16.11.2006 through advocate to the opposite party No. 2 to offset and compensate for the negligence in which towards medical expenses already incurred in opposite party No. 1-Doon Valley Hospital, Dehradun; PGI, Chandigarh; Government Hospital, Rishikesh and Himalayan Institute Hospital at Dehradun including costs of medicine, hospitalization stay, fare, ambulance etc. to the tune of Rs. 17,320/- was sought.  The complainant further sought compensation towards mental pain, agony, harassment, humiliation/future prospects etc. and for loss of earning to the complainant’s father during this period a sum of Rs. 2,30,000/- and towards permanent disability and disfiguration from cradle to grave and social stigma to the complainant a sum of Rs. 17,00,000/- was claimed.  However, a frivolous reply thereto was received.  The complainant in addition to the amount sought in the said notice dated 16.11.2006 further seeks a sum of Rs. 2.00 lacs towards future artificial hand which will be put/implanted on the complainant.  That the opposite party Nos. 2 & 3 stood indemnified with United India Insurance Company, Divisional Office, No. 1, 54 Janpath, New Delhi vide insurance cover under alleged policy Nos. 040100/46/05/0604 and 040100/46/05/0605 respectively both valid for the period from 26.05.2005 to 25.05.2006.  Thus, all the opposite parties are jointly and severally liable to pay compensation so sought for the negligence and deficiency in service. That the cause of action to the suit arose at Dehradun, when the complainant was admitted in the Doon Valley Hospital, i.e. opposite party No. 1 on 03.05.2006 and was under treatment of opposite party Nos. 2 & 3 there, who had applied intravenous drip/injection on the complainant’s right hand, which was resulted in Gangrene having developed and consequent amputation of the right hand and since then the cause of action continues.

3.       The opposite party Nos. 1, 2 & 3 have filed the written statement (Paper Nos. 38 to 44) thereby denying the allegations made by the complainant in the consumer complaint and pleaded that it is wrong to say that any doctor Sh. Narender Raturi ever contacted the opposite party No. 2 or ever discussed any matter with the opposite party No. 2 pertaining to the complainant. The complainant has not made Dr. Raturi or the Government Hospital, Rishikesh party to the consumer complaint under whose treatment the patient was initially in treatment, hence the complaint is bad for non-joinder of necessary party.  It is admitted that the CT Scan was advised by the opposite party No. 2 to the patient on 03.05.2006 after going through the history of the patient, the patient was suffering from high grade fever with seizures (fits) off and on due to HIE (Hypoxic Ischemic Encephalopathy) and Septicemia, which is an emergent situation.  Para 3 of the consumer complaint as stated is erroneous, wrong and is denied.  The proper and requisite treatment was duly given by the opposite party Nos. 2 and 3.  It is wrong to say that the fingers of the child were turning blue at the time of intravenous drip, it is further wrong to say that any such complaint was ever found or made to any of the doctors or nurse of the opposite party No. 1.  It is wrong to say that the doctor of the opposite party No. 1 not attended the patient.  The allegation made in para 1 of the complaint is just an after-thought of the complainant to defame the answering opposite parties.  It is categorically denied that on 04.05.2006, the right forearm of the complainant had turned blue and the palm was dark blue.  It is wrong to say that the opposite party Nos. 2 & 3 ever advised for application of Turmeric boiled in hot water.  It is further wrong to say that the complainant was discharged hurriedly, it is evident from discharge card filed by the complainant (Paper No. 10) that the patient was discharged on the persistent request of his parents, hence noting to that effect was made on the discharge card as attendant wants to go home “DOPR” (discharge on persistent request).  It is further wrong to say that the patient’s arm was covered with wool or full sleeves.  The answering opposite parties are not aware what the wards of the patient did after taking the child to Rishikesh, the complainant or his parents never turned up after 04.05.2006 to the answering opposites parties.  It is categorically denied that the parents of the complainant visited opposite party No. 2 on 06.05.2006.  The opposite parties are not aware as to what happened after 04.05.2006, when the patient was taken away by their wards from the hospital.  It is wrong to say that the complainant had developed Vascular supply of blood due to intravenous drip/injection applied on the complainant at opposite party   No. 1, it is pertinent to mention that the bandage is applied at the time of giving drip to the infants as the infants move their hand very on and off being unware of the treatment and taking out the drip needles, which might result into an injury, hence to prevent the same a very soft bandage is applied, so the child do not move his hand till the drip is over.  It is also pertinent to mention that if the bandage applied on the hand of the patient is tight the drip would automatically stop.  In the present case, the patient was treated with full caution and diligence and the drip of glucose and intravenous injections were successfully given and on completion of the drip the complainant’s parents took him from the hospital.  The complainant is not even aware of the reasons and causes of Gangrene. The complainant’s parents have not stated, as to why the patient was admitted to Dr. Suri’s Hospital, neither any prescription of Dr. Suri is on record. The opposite parties are not aware as to what happened after the parents of the complainant took him on 04.05.2006 from the hospital-opposite party    No. 1, the complainant was in normal condition at the time the complainant was taken away from the hospital.  It is wrong to say that there was any negligence in treatment provided by the opposite party Nos. 1 & 2.  Para 12 of the complaint is not admitted, as the complainant is not the consumer of the answering opposite parties. The patient was treated with due diligence and all reasonable care.  Para 14 of the complaint is admitted to the extent that a false, frivolous and baseless notice was issued to the answering opposite parties, which was duly replied vide reply notice dated 30.11.2006.  There is no cause of action to the present complaint.  The consumer complaint is bad for non-joinder of necessary party.  The complainant has not impleaded Dr. Suri, who was the treating doctor of the complainant (as stated by the complainant). Even otherwise the complainant does not disclose any cause of action related to acts of omission and commission of opposite party Nos. 2 & 3. The baseless compensation sought has been enhanced just to fit the case within the pecuniary jurisdiction of the Commission. In additional pleas, the opposite parties have stated that the complainant was brought to the opposite party No. 2 on 03.05.2006 and after going through the history of the patient and records supplied by the wards of the patient, the opposite party No. 2 suggested for an immediate CT Scan.  The patient was suffering from high grade fever with seizures off and on due to HIE (Hypoxic Ischemic Encephalopathy) and Septicemia.  Immediately on the same day, i.e. 03.05.2006, the patient was given medical treatment as per prescribed procedure with due diligence and care and there after the patient was shifted to Neo Natal Nursery where the Intravenous drip of the patient was continued.  The condition of the patient was normal and the occurrence of the fits/seizure were controlled.  The patient was duly attended by the opposite party Nos. 2 & 3 and other doctors on round time and again.  On 04.05.2006, after completion of drip, the parents of the complainant insisted on discharge of the patient as the patient was in normal condition.  On persistent request made by the parents of the complainant, the opposite party Nos. 2 after writing the prescription of medicines to be given to the complainant, allowed the parents of the complainant to take the complainant to home.  After 04.05.2006, neither the complainant was brought nor the parents of the complainant contacted the answering opposite parties.  The answering opposite party is not aware as to under what treatment the complainant was before 03.05.2006 and neither aware of what happened after 04.05.2006, when the complainant was taken away by his parents in normal condition. There are several causes of developing Gangrene, a bandage put to administer the movement of hand of a child, who is on drip, cannot cause Gangrene. The treatment given by the opposite party Nos. 2 & 3 to the complainant was the best treatment, the infrastructure of opposite party No. 1 is very modern and well equipped.  The opposite party No. 2 is M.D. (Pediatric) and has been successfully practicing since 1983.  The opposite party No. 3 is M.D. (Pediatric) Gold Medalist and is successfully practicing since 1992.  The treatment to the complainant was given properly, diligently with due care and caution and as per the universally accepted method. There is no deficiency in service and no medical negligence on the part of the answering opposite parties.  The answering opposite party Nos. 2 & 3 are the well renowned and reputed doctors of Dehradun. The opposite party Nos. 2 & 3 are duly insured with the United India Insurance Company having Professional Indemnity Policy Nos. 040100/46/05/00604 and 040100/46/05/00605, both effective from 26.05.2005 to 25.05.2006 respectively. 

4.       The opposite party No. 4-United India Insurance Co. Ltd. has filed written statement (Paper Nos. 59 to 60) and has stated that the opposite party Nos. 2 & 3 (Dr. Rakesh Mamgain and Dr. (Mrs.) Madhu Ranjan Rawat) are insured with the United India Insurance Co. Ltd., situated at 54, Janpath, Cannaught Place, New Delhi during the period the patient Master Shivanshu was treated by them-opposite party Nos. 2 & 3.  The opposite party No. 4 has issued Professional Indemnity Policy Nos. 040100/46/05/00604 and 040100/46/05/00605, both effective from 26.05.2005 to 25.05.2006 respectively.  The opposite party No. 4 accepts the written statement of opposite party Nos. 1, 2 and 3 in totality and the same be considered as its written statement in above-said matter.

5.       Learned counsel for the complainant has filed an affidavit of          Sh. Shambhu Prasad Uniyal and Smt. Uma Uniyal in evidence (Paper Nos. 72 to 93) alongwith photocopy of Handicapped Certificate of complainant (Paper No. 94).  He has also filed original Discharge Card issued by Doon Valley Hospital (Paper Nos. 10 to 11), original Cash Memo dated 04.05.2006 (Paper No. 12), original Memo for purchase of medicine (Paper No. 13), original Registration Card (Out Patient Ticket) dated 09.05.2006 of PGI, Chandigarh (Paper Nos. 14 to 15), original report dated 03.05.2006 of Suri Diagnostic & Imaging Centre (Paper No. 16), original Imaging Photograph & report of Suri Diagnostic & Imaging Centre dated 06.05.2006 (Paper Nos. 17 to 18), original report dated 14.08.2006 of Himalayan Institute Hospital (Paper No. 19), photocopy of notice dated 16.11.2006 issued by Mr. C.B. Mehta, Advocate (Paper Nos. 20 to 23), photocopy of reply dated 30.11.2006 issued by Chadha & Associates (Advocates) (Paper Nos. 24 to 26), coloured photographs (Paper Nos. 27 to 29). 

6.       The opposite party Nos. 1, 2 and 3 have filed an affidavit of Dr. Rakesh Mamgain (Paper Nos. 124 to 132) and an affidavit of Dr. (Mrs.) Manju Ranjan Rawat (Paper Nos. 133 to 141).  The opposite party No. 4-United India Insurance Co. Ltd. has filed photocopies of insurance policies issued in favour of opposite party Nos. 2 & 3. 

7.       Learned counsel for the complainant has also filed a joint affidavit of Sh. Shambhu Prasad Uniyal and his wife Smt. Uma Uniyal in rebuttal alongwith photocopy of Out Patient Ticket No. 918055 dated 09.05.2006 and photocopy of Out Patient Ticket No. 026164 dated 12.05.2006 and also photocopy of discharge slip dated 04.05.2006 of Doon Valley Hospital, Dehradun. 

8.       Original letter dated 20.08.2011 of PGI, Chandigarh alongwith Medical Opinion (Paper Nos. 118 to 119) is also filed on record.

9.       Learned counsel for the complainant has filed the written arguments (Paper Nos. 156 to 172) alongwith citations.

10.     Learned counsel for the opposite party Nos. 1, 2 & 3 has filed the written arguments (Paper Nos. 181 to 186) alongwith citations.

11.     We have heard learned counsel for the appellant and opposite party Nos. 1, 2 & 3 and also gone through the record.   We have also perused the written arguments filed by learned counsel for the complainant as well as documents annexed therewith and also the written arguments filed by learned counsel for the opposite party Nos. 1, 2 & 3 and the case laws annexed therewith.  None is present on behalf of the opposite party No. 4.

12.     There is no dispute that the complainant, an infant of about one month, was admitted on 03.05.2006 at Doon Valley Hospital for high grade fever with seizures (fits).  There is also no dispute that CT Scan of complainant’s brain was advised by opposite parties, which was conducted on 03.05.2006 at Suri Diagnostic & Imaging Centre, Dehradun.  After CT Scan, the complainant was brought back to Doon Valley Hospital on 03.05.2006 and was put on intravenous drip/injection by the opposite parties and was later on discharged on 04.05.2006.  It is also admitted that the bandage was applied at the time of giving drip to the infant to prevent injury due to drip needle.

13.     Learned counsel for the complainant has submitted that in the night of 03.05.2006, when the complainant’s mother was allowed to enter the ward for breastfeeding the child, she noticed that at the site and around where the intravenous drip/injection was implanted on the right hand of the complainant, the fingers had turned blue, but the doctors of opposite party No. 1 did not bother to look into the condition of the complainant. On 04.05.2006, the opposite party Nos. 2 & 3 were informed about the condition of the complainant, who informed nothing serious.  The complainant was discharged hurriedly on 04.05.2006.  Seeing the deteriorating condition, the parents of the complainant again brought back him to Dehradun and a colour Doppler Imaging of the Vessels of Right Upper Limb of the complainant was got conducted by Dr. Sachin Suri at Suri Diagnostic and Imaging Center. The Doppler findings were suggestive of no flow of blood in the Palmer Arch and Digital Arteries on the right arm including the hand of the complainant, i.e. the site where the intravenous drip/injection was implanted by the doctors of opposite party No. 1.  Learned counsel argued that this condition was developed as vascular supply of blood to the right hand was occluded, because of very tight bandage applied at the side of intravenous drip/injection applied on the complainant and as a result Gangrene developed.  Doctors at PGI, Chandigarh on 09.05.2006 observed that the Gangrene had been developed on the right hand of the complainant due to wrong administration of injection.  There was Gangrene on the fingers as well as dis-colouration of both Palmer and Dorsal Aspects of the complainant’s right hand extending to the fore arm, because of negligence of the doctors of opposite party No. 1. The fingers of the right hand Palm gradually shrinked and become stiff and there after the complainant’s right hand up to wrist had to be amputated at the level of Metacarpophalangeal joint.  In view of the above on behalf of the complainant his father had got issued a legal notice dated 16.11.2006 through advocate to the opposite party No. 2.  Learned counsel has argued that the opposite party Nos. 1, 2 and 3 in their written statement in para 21 admitted about intravenous drip having been given by admitting as under “patient was shifted to Neo Natal Nursery where intravenous drip of the patient was continued”.  The opposite parties have taken an alibi that the complainant’s parents got him discharged and they are not in the know of his condition after 04.05.2006 and “it is vaguely alleged that there are several causes of Gangrene being developed and a bandage put to administer the movement of hand of a child who is on drip cannot cause Gangrene”. It was the responsibility of the treating doctor to decide and not for the patient or attending persons whether to discharge a patient.  The onus shifts on the opposite party Nos. 1, 2 & 3 to explain as to how and the reason why Gangrene had developed.  Entire written statement is silent and does not give any iota of explanation as to how and why Gangrene had developed.

14.     Learned counsel for the opposite parties have cited a decision of Hon’ble National Commission in the case of Master Abhishek Ahluwalia & Ors. vs. Dr. Sanjay Saluja & Ors.; III (2014) CPJ 290 (NC).  In the said case the Hon’ble National Commission has observed that whether to discharge or not to discharge patient, it is for treating doctor to decide and not for patient or attending person.  Due to tightness in plaster obstruction to flow of blood in veins and arteries of leg - Acute pain due to tightness of plaster only. Operation was performed after administering General Anesthesia.  Respondent No. 1-doctor did not see condition of patient personally before discharging him.  Onus of proof shift upon respondent No. 1 to explain as to how and when gangrene had developed.  Principles of res ipsa loquitor fully attracted.  In the said case, the Hon’ble National Commission has also observed by quoting a judgment Nizam Institute of Medical Sciences vs. Prasanth S. Dhananka and Others; III (2009) CPJ 61 (SC). It was held that once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on the hospital or to the attending doctors to satisfy the Court that there was no lack of care or diligence.” In para 138 of the said judgment the Hon’ble National Commission has observed that on the basis of documentary evidence placed on record as well as admission made by respondent No. 1 had discharged the initial burden of making a case of negligence, therefore, under such circumstances there was no requirement of any expert opinion.  Learned counsel also placed reliance on Ashish Kumar Mazumdar vs. Aishi Ram Batra Charitable Hospital Trust and Ors.; II (2014) CPJ 5 (SC).   In this said case, the Hon’ble Apex Court has held that the hospital also should be held liable for not maintaining the necessary vigil in hospital premises to ensure safety of its patients.  Principle of res ipsa loquitor applied - in case of failure to take due care.  Learned counsel for the complainant has also placed reliance on Sunil Rathi (Dr.) & Anr. Vs. Rita Dey & Ors.; I (2007) CPJ 270.  In the said case, the State Commission, Madhya Pradesh, Bhopal has observed that absence of reasonable explanation from opposite party as to cause for said complication.  In case whether the patient developing infection at injection site – case of gangrene leading to amputation of hand.  Principle of res ipsa loquitor applicable.  Treating doctor alongwith nursing staff guilty of medical negligence.

15.     Per contra, the learned counsel for the opposite party Nos. 1, 2 & 3 has submitted in the written arguments that the patient had been suffering from high grade fever with seizures (fits) off and on, the same was due to HIE (Hypoxic Ischemic Encephalopathy) and Septicemia and the complainant was in moribind stage (almost dead).  The CT Scan was advised on 03.05.2006 after going through the history of the patient and the treatment was accordingly was started to save the patient.  Learned counsel argued that it is wrong to say that no doctor of the opposite party No. 1 attended the patient since no such incident that fingers of the patient were turning blue as stated had occurred.  Learned counsel also argued that the opposite party Nos. 1, 2 & 3 never advised for application of Turmeric boiled in hot water and it is wrong to say that the complainant was discharged hurriedly.  Rather the patient was discharged on the persistent request of his parents and a noting to that effect was made on the discharge card as attendant wants to go home ‘DOPR’.  Learned counsel has also argued that the opposite parties are not aware what the wards of the patient did after taking him back to Rishikesh.  The patient did not even stay in the hospital for even 24 hours.  The complainant has not filed any prescription or details or history of any treatment under gone with Dr. Suri.  The Doppler got done by the parents of the complainant was on 06.05.2006 and the complaint is absolutely silent on the part as to treatment under gone after discharge on 04.05.2006.  Dr. Suri, the treating doctor, has not even been impleaded as party to the complaint who could have brought the facts before the Commission.  Learned counsel argued that the bandage is applied at the time of giving drip to the infants, as the infants move their hand very on and off being unaware of the treatment and taking out the drip needles which might result into an injury.  If the bandage applied on the hand of the patient is tight the drip would automatically stop.  In the present case, the patient was treated with full caution and diligence and the drip of glucose and intravenous were successfully given and on completion of the drip the parents of the complainant took him from the hospital.  The patient was treated by very highly qualified doctors and they are known for their profession in the field of pediatrics.  The complainant has not stated as to why the patient was admitted to Dr. Suri’s Hospital, neither any prescription of Dr. Suri is on record.  The paper Nos. 14 & 15 (Out Patient Ticket No. 918055 of PGI, Chandigarh) of the record referred by the complainant on the file, itself states sign of (?) upon the statement of the parents of the complainant itself.  The said document itself reflects that even the treating doctor at PGI, Chandigarh is unware to the cause of Gangrene to the complainant.  The opposite parties have done no act due to which the arm of the complainant was amputated.  The complainant has not filed any evidence in support of their contention showing or proving in negligence on the part of the treatment given by the opposite parties.  The patient was treated with due diligence and all reasonable care in giving the treatment.  The cause of Gangrene could have only been explained by the opposite parties only if the patient would have stayed in the hospital of the opposite party No. 1. The complainant has himself stated that he had visited various doctors on delayed moments, who have also not been impleaded as party to the complaint neither the treatment given by Dr. Suri is available on record.  Hence, how could the opposite parties can be in the situation to state the cause of Gangrene caused to a patient, who has not even stayed in the hospital of the opposite party No. 1 for not even 24 hours.  Learned counsel has also argued that the complainant is stating that the Gangrene has been caused due to administration of tight bandage and on the other hand the complainant is stating that the wrong administration of IV fluids has caused the Gangrene to the complainant.  The report of Suri Diagnostic Centre has been obtained long after discharge of the complainant.  The ruling cited by the complainant does not relate to the matter in issue involved in the present complaint.  The parents of the complainant putting themselves in the shoes of medical experts have already decided the negligence and has further decided the liability to be affixed against the opposite parties. 

16.     Learned counsel for the opposite parties has cited a decision of Hon’ble National Commission in the case of Mrs. Indira Kartha & Ors. vs. Dr. Mathew Samuel Kalarickal & Anr.; 2002 NCJ 199 (NC).  In this case, the Hon’ble National Commission has observed that the complainants have not been able to produce any expert evidence in support of their allegations, nor have they referred to any standard book on medicines.  Burden of proving that Dr. Mathew was negligent rests with the complainant and it is not for Dr. Mathew to show that he was not negligent.  Learned counsel for the opposite parties has also cited a decision of this Commission in the case of Smt. Vimlesh Dixit vs. Dr. R.K. Singhal; 2004 (1) UC 187.  In this case, it was held that unless it is proved by reliable evidence and supported by expert evidence, case of negligence is not made out.  Learned counsel for the opposite parties has also filed a literature on Gangrene.  Gangrene has been defined, which reads as under:- “Gangrene implies death with putrefaction of macroscopic portion of tissue.  It is commonly seen affecting the distal part of a limb, the appendix, a loop of small intestine, and sometimes organs such as the gall bladder, the pancreas, or the testis.  There are several varieties of gangrene according to cause; such as: Secondary to arterial obstruction from disease, for example:-

* thrombosis of an atherosclerotic artery;

* embolus from the heart in artrial fibrillation or after coronary thrombosis;

* arteritis with neuropathy in diabetes;

* Buerger’s disease;

* arterial shutdown in Raynaud’s disease, and ergotism;

* effect of intra-arteria injections-thiopentone and cytoxic substances.

A gangrenous part lacks arterial pulsation, venous return, capillary response to pressure (colour return), sensation, warmth and function.  The colour of the part changes through a variety of shades according to circumstances. Dry gangrene occurs when the tissues are desiccated by gradual slowing of the bloodstream, and typically occurs as a result of atherosclerosis.  The affected part becomes dry and wrinkled, discoloured from disintegration of haemoglobin, and greasy to the touch. 

17.     From the perusal of the documents filed by the complainant on record, it is very much clear that the complainant, age about 1 month 7 days was admitted in Doon Valley Hospital on 03.05.2006 for high grade fever with seizures due to HIE (Hypoxic Ischemic Encephalopathy) and Septicemia.  The complainant was treated at Doon Valley Hospital from 03.05.2006 up to 04.05.2006 and during this time admittedly intravenous drip/injection was given to the complainant by the doctors of opposite party No. 1. At the time of implanting drip/injection a bandage was also applied to prevent any injury to the patient.  The complainant was discharged by Doon Valley Hospital on 04.05.2006.  According to the opposite parties’ version, the complainant was discharged from the hospital on the persistent request of the complainant’s parents, but the complainant has alleged that the doctors of opposite party No. 1 discharged the complainant in hurried manner.  The complainant then taken by his parents to home at Rishikesh, but on deteriorating condition, his parents again brought back him to Dehradun and a colour Doppler was conducted by Dr. Sachin Suri on 06.05.2006. The colour Doppler Imaging of the Vessels of Right Upper Limb shows that there was no flow of blood in the Palmer Arch and Digital Arteries.  The Doppler findings suggestive of no flow seen in the Palmer Arch and Digital Arteries.  The complainant then taken to the PGI, Chandigarh by his parents and admitted in institute for further treatment.  It is mentioned on the Out Patient ticket (Paper No. 14) that a child of one month brought with Gangrene of all five digits of right upper limb. The child was admitted on 03.05.2006 (wrongly written 03.04.2006) for seizures in Doon Valley Hospital where he was administered some intravenous injection.  In PGI, Chandigarh, the complainant was treated and later on due to Gangrene in the right limb, the complainant was advised for the imputation of the hand.  Later on complainant’s right hand was amputated and again complainant was treated for septicemia in Himalayan Institute Hospital Trust, Jolly Grant.  The documents filed by the complainant on record clearly indicates that the complainant, who was admitted in Doon Valley Hospital on 03.05.2006, was discharged on 04.05.2006, after a gap of only one day, i.e. 05.05.2006.  The complainant again brought back to Dehradun on 06.05.2006 and a colour Doppler Imaging of the Vessels of Right Upper Limb of the complainant was conducted at Suri Diagnostic and Imaging Center, where no flow of blood was seeing in the Palmer Arch of the right upper limb of the complainant.  Naturally this obstruction of flow in the vessels of right upper limb, was caused due to the intravenous drip/injection implanted alongwith tight bandage on the right upper limb of the complainant at Doon Valley Hospital.  There is no other cause except the intravenous drip/injection to cause Gangrene and obstruction of blood flow in the hand, palm and fingers of the right hand of the complainant.  There is no evidence on record to show that the complainant was ever admitted in the hospital of Dr. Suri or Dr. Sachin Suri ever treated him.  Moreover, after conducting colour Doppler of the right hand of the complainant, the Dr. Sachin Suri advised the parents of the complainant to go to PGI, Chandigarh for the treatment.  Therefore, there was no need to implead Dr. Sachin Suri or any other doctor in this case.  Citations placed before us by the learned counsel for the complainant are fully applicable in this case.  The opposite parties discharged the complainant on 04.05.2006 treating the complainant normal, is beyond our imagination.  Whether to discharge or not to discharge patient, it is for treating doctor to decide and not for patient or attending person.  On 03.05.2006 the patient-complainant was in critical condition, according to the opposite parties, even then the complainant was discharged by the opposite parties on the next day showing him absolutely in normal condition.  This indicates that the complainant was discharged by the opposite parties in a hurried manner.  The complainant had developed Gangrene in his right hand due to the injection/drip applied intravenous and the same right hand was later on amputated, therefore, principle of res ipsa loquitor in this case fully attracted. Coloured photographs of the complainant (Paper Nos. 27 to 29) also corroborates the facts that due to intravenous drip/injection and tight bandage applied on the right hand of the complainant, flow of blood was occluded, resulting Gangrene of all the five fingers.  The opposite parties have not filed any evidence in support of their contentions.  The only evidence filed by the opposite party No. 4-insurance company that the opposite party Nos. 2 and 3 are insured with the insurance company with effect from 26.05.2005 to 25.05.2006.  Medical opinion regarding Master Shivanshu-complainant received by this Commission from PGI, Chandigarh with a letter (Paper Nos. 118 to 119), in which PGI, Chandigarh has informed this Commission that as per the patient records furnished before the committee, it is noticed that the Medical events during the intervening period of the patient’s treatment in the Doon Valley Hospital and the patient seen in the PGI are not available.  The time gape in between is around a month. In view of above, the Committee is of the opinion that it is very difficult to ascertain that the cause of gangrene of the limb is due to intra-arterial injection administered at Doon Valley Hospital.  Therefore, no definite opinion was given by PGI, Chandigarh in this case.  This report of PGI, Chandigarh indicates that there was a time gap of a month, but from the documents available on record, there is only a time gap of only 4 to 5 days, during the intervening period of patient’s treatment in Doon Valley Hospital and the patient seen in PGI, Chandigarh.  However, principle of res ipsa loquitor is applicable in this case.

18.     In the instant case on the basis of the documentary evidence placed on record, the complainant has discharged the initial burden of making a case on negligence, therefore, we are of the considered view that under such circumstances, there is no requirement of any expert opinion. 

19.     Though the opposite party Nos. 2 and 3 are qualified doctors, but they have not used their best professional judgment and due care in the treatment of complainant right from the very beginning.  The right hand of the complainant turned blue while intravenous drip/injection was applied on the tender skin of infant.  However, the opposite party Nos. 2 & 3 ignored the voice raised by the parents of the complainant, which ultimately resulted in occlusion of blood supply and Gangrene of fingers.  The complainant was also discharged on 04.05.2006 showing his normal condition.  There after due to the Gangrene developed in the hand of the complainant, it ultimately led to the amputation of the right hand of the complainant. Under these circumstances, it is the opposite party Nos. 1, 2 & 3 alone, who are to be claimed for such unfortunate incident.  Accordingly, we hold the medical negligence on the part of the opposite parties.

20.     Once it is held that there has been a medical negligence on the part of the opposite parties, then this Commission while granting adequate compensation has to bear in mind all the relevant facts and circumstances. 

21.     The compensation which is required be determined must be just compensation.

22.     The complainant in para 18 of the consumer complaint has mentioned total compensation to the tune of Rs. 21,87,320/- alongwith Rs. 30,000/- towards legal expenses under the following headings:-

          a) Present burden of medical expenses;

          b) Perspective burden of expense for providing artificial limb,

          c)  Loss of future earnings of the child;

          d) Loss of enjoyment of future married life of the child;

          e) Pain/suffering, loss of amenities, enjoyment of life etc.;

          f) Humiliation and condemnation of the child on account of being disabled person;

          g) damage/compensation to parents on account of trauma suffered by  them;

          h) Loss of earning of father;

          i) Damages on account of mental agony of complainant’s parents.

23.     The complainant was hospitalized in Doon Valley Hospital on 03.05.2006.  He was discharged on 04.05.2006 and later on after colour Doppler of the right limb, he was referred to PGI, Chandigarh for treatment where parents of complainant spent a sum of Rs. 17,320/-.  Therefore, we grant Rs. 17,320/- towards medical expenses, as claimed.

24.     Further, the complainant has claimed a sum of Rs. 2,30,000/- towards mental pain, agony, harassment, humiliation, future perspective etc. and for loss of earning to the complainant’s father during this period and towards permanent disability and disfiguration from cradle to grave and social stigma to the complainant a sum of Rs. 17,00,000/-.  However, the complainant has claimed a sum of Rs. 2,00,000/- towards future artificial hand, which will be put/implanted on the complainant.

25.     It is an admitted fact that the complainant has been living with an amputated hand since, 2006 and he will have to live in such condition throughout life.  From the perusal of handicapped certificate (Paper No. 94), the Chief Medical Officer, Narendra Nagar, Tehri Garhwal, has found the complainant permanently, physically handicapped and his disability is 60%.  Therefore, in these circumstances a sum of Rs. 5,00,000/-would be just and sufficient compensation, for making provision of artificial hand, pain and agony and for permanent disability and have future implantation of artificial hand.  

26.     Due to amputation of the hand, naturally there would be loss of enjoyment in the life.  Further, admittedly the complainant had suffered pain and suffering and he would have to live his entire life as a disabled person.  Under these circumstances, we allow a sum of Rs. 1,00,000/- for these sufferings.

27.     In these circumstances, the consumer complaint against the opposite party Nos. 1, 2, 3 & 4 is allowed, jointly as well as severally.

28.     For the aforesaid reasons, the consumer complaint is allowed.  The opposite parties are directed to pay Rs. 6,17,320/- to the complainant within a month alongwith interest @ 6% per annum from the date of filing the consumer complaint.  Amount so awarded shall be paid jointly and severally.