BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.183 of 2018
Date of Instt. 27.04.2018
Date of Decision: 31.03.2023
Sonu aged about 33 years son of Sh. Jeet Ram resident of Village & P. O. Dyalpur, Distt. Kapurthala.
..........Complainant
Versus
1. Dr. Atul Mahajan C/o Dr. Atul’s Child Care Centre, Near Shehnai Palace, Ashok Nagar, Jalandhar.
Second Address:- resident of 442, Mota Singh Nagar, Jalandhar.
2. The New India Assurance Company Limited, 195, Soti Sunj, Meerut, Uttar Pradesh 250001.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Rajesh Bali, Adv. Counsel for the Complainant. Sh. K. C. Mahajan, Adv. Counsel for OP No.1.
Sh. A. K. Arora, Adv. Counsel for OP No.2.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is residing in village Dyalpur, Distt. Kapurthala and doing a private job from which he is earning only Rs.7,000/- per month and belong to Scheduled Caste community and there is no other financial assistance from his family as both his parents have died since long. The son of the complainant namely Priyansh was born on 18.12.2011 in a healthy but in the year 2014 the son of the complainant fell ill and the complainant in order to get him treated took him to the hospital of the OP on 17.06.2014. After examining, the OP prescribed some medicines and told the complainant that he is suffering from some brain disease. The OP got conducted various tests on the son of the complainant and the OP have charged hefty amount on the pretext of treatment and diagnosis etc. The complainant had no option but he had paid huge amount to the OP for the sake of his son. During the said treatment, the OP also started alleging that the complainant is suffering from Fits (Mirgi) after the gap of period of 5-6 months and the OP started giving the medicines for the same. In this way, the opposite party has been giving wrong medicines to the complainant. Thereafter, the OP started saying that the minor child was also suffering from Asthma disease after 1½ years and the OP started giving the medicines for the same. It is submitted here that the condition of the child is not good then the OP advised to give medicines through Nebulizer. The OP unnecessarily calling for examination of the child 3-4 times in a month and prescribed so many medicines which is only available in the hospital of the OP which is very costly as per the medicines available in the market. When the child was fell sick then he was treated for febrile seizer fever. But thereafter the OP advised the complainant that the treatment may be for 6 months but the OP gave the treatment to the child for about 22 months. There is some side effect of the medicine to the child and son of the complainant started suffering from throat disease and cold. The OP gave the medicine of the cold and other some kind of 6 & 7 medicines. The OP again and again prescribed the same medicine then the complainant asked the OP why his child could not recover as the complainant gave the medicines to his son as advised by the doctor. The OP prescribed so many tests which were conducted by the Ohri Hospital, Opp. T.V. Centre, Jalandhar. The doctor of Ohri Hospital namely Sh. Sumesh Handa, DM Neuro on 18.06.2014. Thereafter, the doctor again advised for EEG and after this test the same was found normal. The opposite party again prescribed the medicine for the child of the complainant without ailment which shows the opposite party was hiding the wrong treatment being given to the minor child. Inspite of the fact that the child is aged about 5 years. The complainant to get examine his child from the opposite party and some of the prescription slips which are at present available with the complainant are 09.11.2013, 25.11.2013, 29.11.2013, 17.06.2014, 18.06.2014, EEG report dated 18.06.2014, 28.07.2014, Lab. Investigation Report dated 17.12.2014, 24.04.2015, 02.05.2015, 14.12.2015, 25.12.2015, 10.02.2016, 23.04.2016, 10.09.2016, 13.09.2016, EEG report of Ohri Hospital, Jalandhar dated 17.09.2016, 22.09.2016, 26.09.2016, 15.10.2016, 02.11.2016, 05.11.2016, 04.12.2016, Lab. Report of Alfa Climinal Lab & Diagnostic Centre, Kapurthala Chowk, Jalandhar dated 04.12.2016 (two pages), 03.01.2017 and lastly on 25.01.2017 (slip lost). The complainant thereafter went to Ankur Kids Super Specialty Hospital on 27.01.2017 as the son of the complainant was not responding to his disease. The doctor at Ankur Hospital told that the medicines, which were given by the OP to the son of the complainant was not required to be given at all and he told that since son of the complainant is getting said medicines for the last about 2 ½ years, so they cannot stop at once, so he advised to give the same for 10 days further by reducing the same for half dose only. The complainant gave the medicines to the child and thereafter again came to the hospital for the examination of the child on 15.04.2017 and 01.05.2017. After taking the advice from the Ankur Kids Super Specialty Hospital, the complainant along with his wife went to the hospital of the OP and shown him the treatment which is prescribed by the Ankur Hospital and asked him why you gave the wrong treatment of the ailment which were not required then the opposite party in angry manner said that get out from my hospital and also used un-parliamentary language in the presence of wife of the complainant. In order to take second opinion the complainant went to P.G.1. Hospital on 05.05.2017, but the doctor of PGI clearly told that the medicines being given by you are totally wrong and he advise the complainant to only give the calcium tablets and asked to stop other medicines. Due to the negligence of the OP, the complainant has to spend more than Rs.2,50,000/- on the treatment of his son. Due to giving of said wrong medicines, the development/growth of son of the complainant was reduced, his studies have suffered and his behaviour was also become very rude. Due to wrong treatment given by the OP, the future of the child is in dark and the whole family of the complainant is suffering on account of giving of wrong advise as well as wrong medicines to their child. Due to the aforesaid negligent acts of the OP and against the profession ethics and noble profession, the complainant has suffered a lot and more than Rs.2.50 Lakh has been spent by him. He has to arrange money by taking loan from friends and relatives for his treatment. It shows this a clear cut case of deficiency in service, negligence and unfair trade practice on the part of the OP. Inspite of the fact, the minor child is only son of the complainant and he has no other male child, so due to this reason the complainant availed the Super Specialty Hospital, Jalandhar whereas the complainant is resident of District Kapurthala. There is a long distance from Jalandhar to Kapurthala and the complainant has spent huge amount over Taxi, Three Wheeler, and other transportation as per the requirement from time to time. The OP has caused great mental tension, physical harassment and financial loss to the complainant due to their unfair professional misconduct, deficiency in service, wrong diagnose & treatment given to the complainant. After taking the advice from the various hospitals as mentioned above the complainant served a legal notice dated 29.11.2017 to the OP but the OP gave his reply to the said notice through his counsel but he failed to give the satisfactory reply and demanded some documents from the complainant. As per the notice of the counsel of the OP, send all the documents demanded by the OP, on dated 03.01.2018 but the OP failed to give satisfactory reply to the legal notice of the complainant and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay a sum of Rs.5,00,000/- spent on the treatment of the minor child. Further OPs be directed to pay a compensation to the complainant to the tune of Rs.1,00,000/- for causing mental tension and harassment and Rs.22,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is bad for non-joinder of necessary parties. All the hospitals which are referred in para no.5, 7 and 9 of the complaint are necessary parties in the present complaint. It is further averred that the complainant is estopped by his acts, conduct, admissions and acquiescence to bring and file the present complaint. The complaint is not maintainable and is liable to be dismissed. The complaint has got no cause of action to file the present complaint against the answering OP. The complaint is barred by limitation. The complainant has not come to the Commission with clean hands and is guilty of suppressing the true and material facts. The provisions of the Consumer Protection Act are not applicable to the matter disputed by the complainant and the complaint is liable to be rejected. The complaint does not contain the required ingredients and the complainant has also not attached any expert opinion with the complaint and the matter in question involves intricate questions of medical and the same cannot be decided summarily and the complaint is liable to be rejected. The OP is professionally insured vide the insurance policies No.32110036130400000328 for the period from 13.07.2013 to 12.07.2014, No. 32110036140400000360 for the period from 13.07.2014 to 12.07.2015, No 32110036150400000447 for the period from 13.07.2015 to 12.07.2016, No.32110036160400000524 for the period from 13.07.2016 to 12.07.2017, No. 32110036170400000522 for the period from 13.07.2017 to 12.07.2018 issued by the New India Assurance Company Limited, 195, Soti Sunj, Meerut, Uttar Pradesh 250001 and the said Assurance Company is a necessary party to the present proceedings because the said New India Assurance Company is professionally liable to indemnify the OP. On merits, it is admitted that the OP advised EEG and MRI brain when the patient was brought by the complainant and the patient was brought to the OP for the first time in aggravated condition on 13.06.2014, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the complainant is not the consumer of the answering OP and that being so the present complaint is liable to be dismissed against the answering OP. It is further averred that there is no privity of contract between the complainant and the answering OP. There is no deficiency of service or unfair trade practices on the part of the answering OP and that being so, the present complaint is liable to be dismissed. It is further averred that without admitting any liability, it is submitted that the answering OP had issued Professional Indemnity Insurance Doctor Policies bearing nos. 32110036130400000328 for the period 13.07.2013 to 12.07.2014 for a sum of Rs.5,00,000/-, 32110036140400000360 for the period 13.07.2014 to 12.07.2015 for a sum of Rs.5,00,000/-, 32110036150400000447 for the period 13.07.2015 to 12.07.2016 for a sum of Rs.10,00,000/-, 32110036160400000524 for the period 13.07.2016 to 12.07.2017 for a sum of Rs. 10,00,000/-, 32110036170400000522 for the period 13.07.2017 to 12.07.2018 for a sum of Rs.10,00,000/- & 32110036180400000552 for the period 13.07.2018 to 12.07.2019 for a sum of Rs. 10,00,000/-, to Dr.Atul Mahajan, 442, Mota Singh Nagar, Jalandhar subject to terms and conditions of the policy of insurance. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
5. In order to prove their respective versions, both the parties have produced on file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for both the parties very minutely.
7. The Ld. Counsel for the complainant has submitted that his son Priyansh was born on 18.12.2011. In the year 2014 he fell ill and he was taken to the hospital of OP No.1. The doctor told him that the son of the complainant is suffering from some brain disease. Numerous tests were got conducted by OP No.1. He has further submitted that the hefty amount of fee was charged by the OP No.1. During the treatment, the OP No.1 told the complainant after gap of 5-6 months that the son of the complainant is suffering from Fits (Mirgi) and he started giving medicine for the same. He has further submitted that the OP No.1 has committed grave negligence as he started giving wrong medicines to the son of the complainant. Then he started saying that the child of the complainant is suffering from Asthma disease. Then the medicine was started for Asthma. In this way, he has charged heavy amount, but given wrong medicine and has wrongly diagnosed the son of the complainant. When the complainant’s son was treated for febrile seizer fever, the OP No.1 told the complainant that the treatment is of six months. After 1½ years again the OP No.1 gave medicines of the cold and other kind of 6/7 medicines to the son of the complainant and prescribed the same medicine again and again. The EEG was got conducted, which was found normal. The counsel has further submitted that the OP No.1 prescribed the medicines for the son of the complainant without any ailment as the EEG was also normal and other tests were also normal, but wrong treatment was being given by the OP No.1. He has proved on record some of the prescription slips of OP No.1. He has further submitted that there was no previous history of any disease of the son of the complainant prior to the present disease. He went to Ankur Kids Super Speciality Hospital on 27.01.2017 when he did not get any benefit and relief with the medicines provided by the OP No.1. The doctor of Ankur Hospital told the complainant that the medicine already being given to the son of the complainant was not required and reduced the dose of the medicine. He has also proved on record the prescription slips and pamphlet of Ankur Kids Super Speciality Hospital. After consulting the doctor of Ankur Hospital, again the complainant visited the OP No.1, but he mis-behaved with the complainant. In this way, there is gross negligence and deficiency in service on the part of the OP No.1. Even the doctors of PGI, Chandigarh told the complainant that the medicines being given by the OP No.1 are wrong and advised the complainant to give only calcium tablets and asked the complainant to stop all the medicines. The OP No.1 has acted negligently and did not give the proper treatment to the son of the complainant. He has violated all the norms of the medical profession and has acted against the professional ethics. The complainant has suffered mentally as well as financially due to the wrong treatment given by the OP No.1.The complainant has spent Rs.2.50 lac in the treatment of his son with no positive results, therefore there is unfair trade practice, deficiency in service and negligence on the part of the OP No.1. He has proved on record the legal notice given by the complainant and the reply to the notice given by the OP No.1 and submitted that the OP No.1 may be directed to pay the compensation, damages and Rs.5,00,000/- spent by him on the treatment of his child.
8. The Ld. Counsel for the OP No.1 has denied all the allegations and submitted that there is no deficiency in service, unfair trade practice or negligence on the part of the OP No.1. The OP No.1 is a qualified skilled doctor and is specialized in Pediatrics. He has proved on record the certificates Ex.OP1/32 and Ex.OP1/33. He is a gold medalist in MBBS for distinction in Physiology and Pharmacology and Silver Medalist in Medicines and Obstetrics and Gynecology. He has proved on record the Merit Certificate of OP No.1 Ex.OP1/34 to Ex.OP1/38. He has further submitted that the OP No.1 has attended the son of the complainant with due care, skill and diligence. He has further submitted that there is no expert opinion filed by the complainant to show that the treatment provided by the OP was not correct. In such circumstances, negligence of OP No.1 or any of the treating doctor cannot be proved, nor there is any document or opinion of the doctor or medical paper of any doctor to show that there was any decline in the health condition of the child after the treatment given by the OP No.1.
9. He has further submitted that when the child was taken to PGI, Chandigarh, he was very active and playful and was normal. Even the history on the document of PGI, Chandigarh Ex.C-33 show that at the time of birth, he did not cry, therefore he cannot be said to be born in a healthy condition. He has further stated that when the child was brought to his hospital, he was diagnosed as a case of Atypical Febrile Seizure and was brought in aggravated condition on 13.06.2014. He has further submitted that the child was advised EEG, MRI Brain and the due medicine was also prescribed till the age of five years because this problem does not reoccur after the age of five years. The OP has proved on record the OPD Register Ex.OP1/3 to Ex.OP1/9 and has also proved on record the prescriptions of the medicines prescribed by him. He has further submitted that the report of EEG was abnormal and MRI was not shown to him/OP No.1. The patient was advised to continue the treatment. He has also relied upon the document Ex.OP1/11 to Ex.OP1/16 which show that the patient was symptom free. It was the negligence of the complainant as the complainant did not take care of the child as prescribed by OP No.1 with the result that he had the history of prolonged convulsion with loss of consciousness for over 20 minutes. He has relied upon Ex.OP1/10. He was advised and prescribed medicines as per his problem whenever the complainant visited the OP. He has also relied upon the OPD Register Ex.OP1/17 to Ex.OP1/23. He has also relied upon Ex.OP1/24, which is the report of EEG showing the report as normal. He has further submitted that his medicine was reduced vide Ex.C-20. Thereafter, whenever the patient came, he never reported any problem of convulsion rather he was having allergy, cough, bronchitis and he was advised X-ray. He has relied upon the report of PGI, Chandigarh Ex.C33 and submitted that the child was having a history of allergy, family history of epilepsy and family history of asthma. Same diagnose and medicine was given by the doctors of PGI, Chandigarh and doctor of Ankur Hospital, which was prescribed by the OP and even the doctor of Civil Hospital, Kapurthala. Therefore, there is no negligence on the part of the OP. He has relied upon the law laid down by the Hon’ble Supreme Court in 1996 (2) Supreme Court cases, case laws 2019 (1) CPJ 133 (UP), 2003 (1) CPJ 262, 2019 (III) CPJ (CN) (MP), 2019 II CPJ 1 (Assam)1, 2000 (II) CPJ 345, 2019 (III) CPJ 3 A (CN) (WB) 376, 2003 (II) CPJ 467 and III 2019 CPJ 222 (NC). He has further submitted that there is no negligence or deficiency in service or unfair trade practice on the part of the OP. The complainant has failed to prove the medical negligence on the part of the OP as the OP has acted diligently and as per his skill. Request has been made to dismiss the complaint.
10. It is not disputed and it is proved that the son of the complainant fell ill and he was brought to the hospital of the OP No.1 for treatment. Number of medical prescriptions and tests has been proved on record by both the parties. It is proved that the son of the complainant was visiting the OP No.1 as OPD patient and he was prescribed medicines from time to time by the OP No.1. The grudge of the complainant is that the OP No.1 has given the wrong medicines to the complainant with result, the son of the complainant did not feel better. The medicine was never reduced rather the same was asked to be continued. He has alleged that the doctors of different hospital have told him that the medicine given to the son of the complainant was not required at all. In this way, he has alleged the gross medical negligence on the part of the OP. The Hon’ble Supreme Court has defined the medical negligence in the case, titled as“Jacob Mathew Vs. State of Punjab and Anr.” in 2005 (6) SCC 1, wherein his Lordship held as under:-
“A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.”
11. It is proved on record that the complainant visited the OP No.1, then consulted the doctor of Ankur Kids Super Speciality Hospital, Civil Hospital, Kapurthala and then PGI, Chandigarh. The complainant has also alleged that there was no history of any problem and the wrong medicine has been given. Perusal of the record produced by both the parties show that as per the OPD Register proved by the OP, the complainant took his son to the OP No.1 for the first time in the month of June, 2014 and he was diagnosed as a case of Atypical Febrile Seizure. As per record the EEG was advised as per Ex.C-5. As per Ex.C-6, the report shows that it was Abnormal Sleep EEG S/O Interical Record of Generalized Seizure Disorder. He was advised Velpoz. The patient was given Antiepileptic Control Seizure Medicine i.e. Valpo Z1 syrup. As per the submission of the OP, the medicine was to be continued till the child attains five years age as the Febrile Seizure of the son of the complainant was in aggravated form. He was advised syrup cefixime and paracetamol. There are number of prescriptions on the record, which shows that the same medicine was repeated from time to time and blood test was also got done from time to time. In between the son of the complainant also suffered fever and cough and was being treated for cough and fever also. As per record after taking the medicine continuously, the condition of the son of the complainant was improved. The prescriptions produced on record by both the parties shows that the son of the complainant i.e. the patient was advised nebulizer as he was having cough and fever. As per the EEG Report conducted on 17.09.2016, the condition of the patient was normal. As per Ex.C-24, the patient was having respiratory system bacterial infection, cold and cough. As per the report of EEG, no seizure activity was seen. It was normal awake EEG. Syrup Calpol was advised for cough allergy. The medicine given for febrile seizure valpoz was reduced. Thereafter, the complainant took his son to Civil Hospital, Kapurthala on 02.04.2016. The medicine prescribed was syrup AZEE, which was for respiratory system bacterial infection. The doctor also prescribed valparin medicine, which already was being given by the OP, meaning thereby the same medicine was prescribed by the doctor of Civil Hospital, Kapurthala. This clearly shows that the doctor of Civil Hospital, Kapurthala also diagnosed the same problem and same treatment was prescribed, which was prescribed by the OP No.1.
12. The complainant took his son to Ankur Kids Super Speciality Hospital on 25.11.2017 and the doctor prescribed medicine and the detail has been given in Ex.C-28. Perusal of Ex.C-28 also shows the same diagnose i.e. child having Febrile Seizure with allergic bronchitis, recent cough and cold. Medicine Valprin Tapper Off. It has specifically been mentioned that in this prescription Ex.C-28 that presently the patient is on minimal dose of Valprin. Tablet Ferium was prescribed by the doctor of Ankur Kids Super Speciality Hospital and this tablet is for epilepsy. It has specifically been mentioned in this prescription i.e. C-28 that the patient had two seizures episode during fever over last three years. Both were associated with fever, meaning thereby that during three years, when the son of the complainant was taking medicine, he had only two seizure episodes. The submission of the OP find merits as there was an improvement in the condition of the son of the complainant. As per Ex.C-27, which are the instructions which also show that the patient having seizures with fever will recover after six years, whereas the OP has advised that he can recover after five years. As per Ex.C-28 and Ex.C-29, the son of the complainant was being treated for sneezing, running nose and he was advised inhaler also alongwith the medicine valcare.
13. The son of the complainant was taken to PGI, Chandigarh. As per the record of PGI, Chandigarh Ex.C-33, the history regarding the patients was mentioned which shows that there is a history of one episode of difficulty in breathing in January, 2017 for which the child was treated on OPD basis, then there is a history of fever, two episodes in last six months, history of thrash, history of sneezing, history of febrile seizure at two years of age and was started of valpoz on 02.07.2014 and history of three hospital admission for febrile seizure, history of not cried at the time of birth. It has further been mentioned that there is a family history of Asthma in paternal grandmother, family history of skin allergy in father, family history of seizures in uncle’s daughter, meaning thereby that the contention of the complainant that there was no family history of any problem is falsified from the diagnoses done by the doctors of the PGI, Chandigarh. As per Ex.C-34, he was treated for tonsillitis and recurrent URI. He was given medicines. Then he followed up on 18.12.2017. There was no functional impairment at all. As per Ex.C-33, when the child was taken to PGI, Chandigarh, he was very active and playful.
14. From the medical record produced by the complainant and the OPs, it is clear that there was a family history of allergy, cold and cough and seizures of the son of the complainant. It is also proved that he suffered febrile seizures at the age of two years and was put on medicines, which was later on reduced by the OP. It is also proved that the doctors of Ankur Kids Super Speciality Hospital and the doctor of Civil Hospital, Kapurthala also prescribed the same medicine, which was prescribed by the OP No.1. Now the controversy is whether the complainant was given wrong advice and wrong medicine as alleged by the complainant. As per the Medical Literature, atypical febrile seizures occur between six months and three years of age and a proportion of children may have focal convulsions of greater than 20 minutes duration, even without significant fever or with persistently abnormal EEG for two weeks or more after the attack. The medicine prescribed in the Medical Literature is Sodium valproate 10 to 20 mg for 1 to 2 years or until 5 years of age, whichever is earlier. There is a specific reference that its other indications are CNS disease (mental retardation), recurrent complex febrile seizures and positive family history of epilepsy. In Medical Literature, a specific treatment has been given which shows that Sodium valproate is better than phenobarbitone Carbamazepine and phenytoin are useless as preventive aids. As per the IAP Text Book of Pediatrics, the optimal duration of treatment is at least one year seizure free or till the age of five years. In Chapter 18 for Bronchodilators, the inhaler or nebulizer has been suggested for delivering medication to the infants and young children. So as per the Medical Literature, which has been explained in the text book of Pediatrics, 11th Edition by Suraj Gupte, the prescribed medicine was not wrong medicine rather the same was prescribed keeping in view the family history and the condition of the child.
15. It is proved on record that the OP No.1 is a well qualified and skilled doctor. Even if it is presumed that different medicine was given by the OP for the treatment, but as per the Medical Literature, best medicine was prescribed by the OP. It has been held by the Hon’ble Supreme Court in 1996 (2) that ‘the skill of medical practitioners differs from doctor to doctor. The very nature of profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment it would be difficult to hold a doctor to be guilty of negligence.’ Though, the complainant has alleged that the doctors of Ankur Kids Super Speciality Hospital and the other persons, not named have told him that wrong medicine has been given by the OP and this medicine was not required, but there is no medical opinion either by the doctor of Ankur Kids Super Speciality Hospital or of any other doctor to this effect that wrong medicine was given by the OP. The complainant has also filed on record an application for seeking the expert opinion from the Civil Hospital, Jalandhar by directing the Civil Surgeon to conduct a Board of the doctors to conclude that the wrong medicine was prescribed, but this contention and this application is not required in the present case as in the present case, the complainant himself has visited many doctors. The doctor of Ankur Kids Super Speciality Hospital, even the doctor of Civil Hospital, Kapurthala have been consulted. The doctors of PGI, Chandigarh have also been consulted, but none of the doctors has given the opinion that the OP has given wrong medicine to the son of the complainant. The prescriptions, as discussed above show that with the passage of time, the dose of medicine was reduced. There is no opinion of any doctor that there is a negligence on the part of the OP. It is well settled law that the complainant is to prove his own case and he is to stand on his own legs. As per the prescription of PGI, Chandigarh, there is family history of all the diseases i.e. allergy and seizures. There is no document on the record to show that after taking medicine from the OP, the condition of the son of the complainant ever deteriorated rather as per the opinion of the doctors of PGI, Chandigarh he was active and playful and was not on epileptic medicine. It has been held by the UT Consumer Disputes Redressal Commission, Chandigarh, in 2003 (1) CPJ 262, case titled as ‘Sukhchain Singh Vs. Chandigarh Administration Through Secretary Health & Anr.’ that ‘Negligence alleged wrong diagnosis and medication caused subsequent medical complications-complainant already on Anti TB Treatment-negligence in diagnosis or treatment not proved.’ The complainant has not alleged any negligence or deficiency on the part of the doctors of Ankur Kids Super Speciality Hospital, PGI, Chandigarh or the doctor of Civil Hospital, Kapurthala. Though, they had prescribed same medicine which was prescribed by the OP. The complainant has not proved on record any Medical Literature to show that the medicine prescribed by the OP was wrong medicine and wrong advice was given by the OP. It has been held by the Hon'ble National Commission in III (2019) CPJ 222 (NC), in a case titled as ‘Satwinder Singh Vs. Dr. Gurmeet Singh Chhina & Ors.’ that ‘No medical literature contrary to the literature relied upon by State commission has been produced- Removal of gallbladder is standard procedure when multiple calculi are found in gallbladder-Board of doctors after examining the record of patient, found no negligence on part of either of respondents in treatment of wife of complainant- negligence not proved- A board of doctors was constituted to examine the allegations of negligence against the respondents. The board of doctors after examining the record of the patient, found no negligence’. It has been held by Hon’ble Supreme Court in case titled as “Kusum Sharma and others Vs. Batra Hospital” in 2010 (2) CLT 282 (SC) has held as under:
“negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill competence, merely because doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. Medical Practitioner would be liable only when his conduct fell below that of the standards of a reasonable competent practitioner in his filed.”
It has been the Hon’ble Supreme Court in Consumer Protection Judgments-2022 (I), in case titled as “Bombay Hospital & Medical Research Centre Vs. Usha Jaiswal & Ors” that “in post-operative complications doctor cannot be held liable for medical negligence by applying doctrine of res ipsa loquitur for reason that patient has not favorably responded to treatment given by doctor or surgery has failed. Simple lack of care, error of judgment or accident, is not proof of negligence on part of medical professional. The Commission ought not to presume that allegations in Complaint are inviolable truth even though they remained unsupported by any evidence. Sufficient material or evidence should be available before adjudicating authority to arrive at conclusion that death is due to medical negligence.”
16. In view of the above detailed discussion, the complainant has failed to establish medical negligence against OP No.1 and thus, the complaint of the complainant is dismissed qua OP No.1. There is no privity of contract between the complainant as well as OP No.2, therefore, no direction can be given to the OP No.2 regarding the payment of insurance, if any. More so, the complaint of the complainant has been dismissed qua OP No.1, therefore, the complaint qua OP No.2 is also dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
17. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
31.03.2023 Member Member President
