BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.51  of 2019

      Date of Instt. 18.02.2019

      Date of Decision: 19.03.2024

Smt. Ranjana Rani widow of Shri Vijay Kumar, resident of House No.WS-109, Batsi Sheikh, Jalandhar.

..........Complainant

Versus

Dr. B. S. Bhatia, BAMS c/o Sandeep Hospital & Clinical Lab, inside Sandeep Hospital, Bara Bazar, Basti Sheikh, Jalandhar City.

….….. Opposite Party

          Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Arvind Randev, Adv. Counsel for the Complainant.

Sh. R. K. Arora, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                This complaint has been filed by the complainant, wherein alleged that the complainant was married to Vijay Kumar in the year 1996 and from this lawful wedlock, the only son namely Sourav was born on 7.5.2002 who was studying in 10+1 standard in new St. Soldier School, Jalandhar. He was quite hale and hearty. The husband of the complainant was running the business of Gold Smith. The complainant and the minor were totally dependent on him. Unfortunately, on 5.11.2018 in the evening, the son of the complainant Sourav suffered from fever and he was taken to OP for treatment. OP made tall claims with regard to his professional skill and achievements in his medical line, which swayed the complainant and OP took blood sample of Sourav and opined that Sourav was suffering from typhoid and assured to cure him within few days. OP also gave some medicines for Sourav. OP provided treatment to Sourav upto 8.11.2018 evening, but there was no improvement in the health of Sourav and his medical condition deteriorated a lot. The complainant and her husband had been approaching OP about the medical health of their son and OP had been assuring them that there was no serious problem and it was simply typhoid. The complainant paid the entire bill to OP for the treatment. When the complainant and her husband did not see any improvement in the physical condition of Sourav, they took the patient to Dr. Atul Mahajan, Basti Sheikh Road, Jalandhar, who after pathological tests conducted on 9.11.2018 concluded that the patient was suffering from Dengue and not from typhoid and on account of lack of proper treatment for Dengue, the condition of the patient was critical. The Doctor also advised the complainant and her husband to shift the patient to some superior Hospital. Accordingly, the complainant and other family members took Sourav to Patel Hospital, Jalandhar on 9.11.2018, who again conducted thorough tests and came to conclusion that the condition of the patient was critical and the patient was to be kept in ICU and also issued a Certificate to this effect. In order to save the life of the patient, the complainant and her family members took the patient to DMC, Ludhiana on the same day. After admission of the patient in the Hospital, the Doctors DMC also opined that due to lack of proper treatment, the condition of the patient was quite critical, some of the organs of the body on the gate of the Hospital, Sourav expired and the complainant lost her only son. On account of lack of proper diagnose of the ailment and lack of proper tests, knowledge and experience and lack of proper treatment and without any advice of proper and competent Doctor, OP continued the treatment of Sourav in order to make the medical bill fatty. OP were not competent to handle the patient of Dengue as such, OP wrongly diagnosed the ailment as Typhoid and made fool of the complainant who was not conversant with medical practice. While acting as service provider, OP cheated and defrauded the complainant, who is consumer as defined in the Act. Due to wrong diagnose and wrong treatment, the complainant lost her loving son, who was the insignia of the family. Due to this trauma, the husband of the complainant also expired, leaving the complainant alone and helpless in the world. The complainant spent about Rs.10,00,000/- on the treatment of her son which last till his death only because of OP wrong diagnose. The OP act in not properly diagnosing the illness, wrong tests and wrong treatment to the son of the complainant is deficiency and negligence in service on the part of the OP, which has caused a great inconvenience, mental agony, trauma, harassment to the complainant. The complainant served a legal notice through her counsel dated 07.01.2019 to the OP and also sent to The Chairman, Medical Council of India, but all in vain 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 the damages to the complainant a sum of Rs.10,00,000.00 spent by her on the treatment of her deceased son and also to pay damages of Rs.10,00,000.00 on account of deficient and negligent services on the part of the OP.

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the present complaint is false and frivolous to the knowledge of the complainant. It is further averred that no cause of action has ever arisen to file the present complaint against the answering respondent/OP. It is further averred that the complainant has concealed true and material facts from this Forum and put forward a false, frivolous as well as concocted story just to blackmail the OP. The complainant is unnecessary making a hue and cry without any reasonable cause. All the allegations leveled by the complainant upon respondent/opposite party are false and frivolous to her knowledge and the same are vehemently denied except the true facts which have been pleaded and admitted in the present reply. It is further averred that there was no occasion or reason with answering respondent/OP to procure any false report from any of the lab or Hospital and to give wrong treatment or medication as respondent/OP is at most honest, sincere and expert in his profession as well as be having professional ethics. Neither there was any occasion for answering OP to create any dispute with regard to any test and nor it happened so. On merits, the factum with regard to admission of the son of the complainant with the OP is admitted, 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.                Rejoinder not filed by the complainant.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.

6.                The complainant has alleged the gross medical negligence on the part of the OP. It has been alleged that the OP has given the initial treatment to the son of the complainant. He did not treat the son of the complainant well nor given any medicine for dengue nor disclosed to the complainant the fact of his son suffering from dengue and has alleged the unfair trade practice and deficiency in service on the part of the doctor. The complainant has produced on record the medical tests reports of Sandeep Hospital, Atul Mahajan Clinical Laboratory, Patel Hospital, discharge summary of DMC Hospital, Blood test got conducted in DMC and other test conducted during his admission in DMC.

7.                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.”

                   So, as per the law laid down by the Hon’ble Supreme Court, so long as the doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence, meaning thereby that first of all the doctor must be possessed with an adequate qualification and he must be capable of doing the treatment. As per the law laid down by the Hon’ble Supreme Court, a simple lack of care, an error of judgment or an accident is not proof of negligence. It has been held by the Hon’ble Supreme Court in a case titled as ‘Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others’ that ’the patients by and large are ignorant about the disease or the side or the adverse effect of a medicine. Ordinarily the patients are to be informed about the admitted risk, if any. If some medicine has some adverse effect or some reaction is anticipated, he should be informed thereabout.’

8.                In the present case, it is proved that the OP is BAMS. The OP has proved on record the certificate from Punjab Technical University of the Diploma in Medical Lab Technology. It is admitted and proved that the son of the complainant was suffering from fever and the complainant visited the OP on 05.11.2018 in the evening. As per the law laid down by the Hon’ble Supreme Court, the patients are ignorant about the disease or treatment, the patient should be informed about everything by the doctor. The OP has produced on record the Daily Register of the OP Clinic. No other medical record of the complainant has been proved by the OP. The complainant has submitted that the OP never issued any prescription slip to the complainant for the medicines prescribed or for the treatment given. He has proved on record the tests got conducted by the complainant on 05.11.2018.

9.                As per the contention of the OP, the complainant visited the OP clinic on 05.11.2018, thereafter on 06.11.2018, he did not visit the clinic and on 07.11.2018, he was advised same medicine and further advised to go to some well equipped hospital. His contention is that no dengue test was conducted, therefore, he never disclosed that complainant’s son is not having dengue. More so, he is not a specialized doctor for dengue fever.

10.              Perusal of the Daily Register of the OP shows that the entry regarding the son of the complainant was made by the OP on 05.11.2018 and this was the first visit of the complainant to the OP clinic. In the column of treatment, the medicines provided to the complainant has been mentioned as PCM, CP/BC, but no prescription was ever given by the doctor to the complainant to show the treatment and the disease for which the medicines given by the OP nor there is any prescription of the medicine suggested/provided by OP. Even the OP has not mentioned in his written statement about the names of the medicines mentioned in the Daily Register by the OP. As per the written statement, the son of the complainant did not come for medical check-up on 06.11.2018 and on 07.11.2018 evening, the complainant was advised to get him admitted in some well equipped hospital. In the written statement, the OP has taken the contradictory stand. In the para No.5, the complainant has alleged that the son of the complainant namely Sourav came for check-up on 05.11.2018 and then on 07.112018 evening, when he was advised to get Sourav admitted in some well equipped hospital, whereas in the later portion of this paragraph, he has alleged that the patient did not get medical check up on 06.11.2018 and took medicine only for 05.11.2018. He has further mentioned in the written statement that same medicine was repeated on the next visit/second visit of the patient as on 07.11.2018. Again there is an entry in the register, but no date has been mentioned and the treatment prescribed is DOM-DT and PCM. DOM-DT in the medical language is a medicine for the treatment of indigestion and nausea and vomiting. In the record produced by the OP these two entries are of same date i.e. 05.11.2018, then there is an entry of 07.11.2018 and the treatment and the medicine repeat was PCM-CT and VC (RS). It has been advised further investigation then the word referred has been mentioned. Perusal of this record shows that on the day i.e. 07.11.2018, it has not been mentioned whether he was referred in the morning or evening and if he was to refer the patient, then the same medicine to be repeated does not seems to be convincing. In the medical language, the CP Tablet is a pain reliever and the reliever for fever. Similarly, PCM is also for the same purpose. There is no document on the file to show that the complainant was advised any test for investigation purposes as alleged as for further investigation and as per the submission of the OP on the basis of CBC and the Widal Test, he was diagnosed as suffering from viral fever. He has alleged that the symptomatic treatment was given to the complainant’s son. The complainant has produced on record the pathological reports of the deceased Sourav. Ex.C-1 was the CBC test got conducted by the complainant. In the written statement, the OP has relied upon the certificate of the Patel Hospital Ex.C-5. Perusal of this certificate shows that Sourav was admitted in Patel Hospital on 09.11.2018 and he was found suffering from Tropical Fever, Dengue Serology IgM +vehicle, Thrombocytopenia, Hepatitis, Impending Acute respiratory distress syndrome, but perusal of Ex.C-1 shows that no Creatinine Test was got conducted by the OP to find the liver functioning and to check the hepatitis. This test was got conducted on 05.11.2018 and other tests were got conducted from Atul Mahajan Clinic Laboratory and Patel Hospital. This was the duty of the doctor to get all the tests conducted and to get the thorough investigation to come to the conclusion about the disease of the patient. As per the Daily Register, he advised the patient to repeat the same medicine on 07.11.2018, once there was no relief in fever, then he should have gone for other tests to be got conducted, which were necessary to diagnose the disease. In the written statement, the OP has alleged in para no.5 that he had only given the medicine to the patient as like first aid, but this contention is not tenable as if he had given the medicine as a first aid, he should have referred the patient on the same day, but he did not do so. He has further stated that Dengue test was not conducted as such, he has nowhere stated that he was not suffering from Dengue. He has further stated that the OPs not a specialized doctor for dengue fever. The doctors know very well, if there is any possibility of dengue fever or not and if the doctor was not specialized doctor for dengue fever, he should not have treated the patient on 05.11.2018 and 07.11.2018. The doctor cannot escape from his responsibility and liability by merely saying that since the test of dengue was not conducted, therefore, he nowhere stated that the patient was not suffering from dengue. It is the negligence of the doctor that he, being doctor, did not get all the necessary tests conducted and did not perform his duty acceptable to medical profession of that day. He himself had admitted in the written statement that when there was no improvement of the patient, then he suggested the attendant to get treatment from any specialized hospital. In such circumstances, he should not have advised the patient to repeat the same medicine. As per the tests report, the platelet count fell down on 09.11.2018 and it came to 35 only, whereas the normal ratio is 150 to 450. The Creatinine, Serum was also towards the higher side, but no such test was ever got conducted by the OP. The OP has relied upon the law laid down by the Hon’ble Supreme Court in 2010(1) Apex Court Judgments (SC) 445:2010(1), titled as ‘Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others’, decided on 10.02.2010. The law referred by the Learned counsel for the OP is not disputed that the negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. It has been held by the Hon'ble National Commission, in 2015 (76) RCR (Civil) 840, titled as ‘Mukhthyar Singh Vs. Kasturi Devi Munshi Lal Mahila Evam Shishu Charttable Hospital’ that as per medical literature dengue at the initial stage is not in a diagnosable condition, but it has been observed by the Hon'ble National Commission that the correct mode of treatment should have been adopted by the doctor, which was done by the doctor in the case referred by the Learned counsel for the OP. But in the present case though the dengue could not have been diagnosed at the earlier stage, but the right mode of treatment should have been adopted. The admission of the doctor itself shows that he was not competent enough to treat dengue, if the dengue had appeared earlier though no such test was ever got conducted. The doctor has not given any prescription also to prove that right medicine was given to the patient. As per the certificate produced on record by the complainant, the doctor was registered as Ayurvedic practitioner on 04.08.2009, no certificate has been produced on record by the OP to show that he is eligible to treat and provide the allopathic medicines to the patient. The Diploma produced on the record is regarding medical lab technology, but there is no document or certificate to show that he was qualified to treat the patient with allopathic medicine nor there is any certificate to show that he has undergone the training for treating the patients by giving allopathic medicines, which is required. Even if it is assumed and considered that BAMS doctor was eligible for treating the complainant by giving allopathic medicine, but the doctor should have taken the proper care by treating Sourav by following the practice acceptable to medical profession of that day.  

11.              It has been held by the Hon'ble National Commission, in Revision Petition No.1133 of 2018, case titled as ‘Dr. Shailender Dhawan Vs. Digvijay Advocate and 2 Ors.’ that ‘what is required is not the qualification in Modern Scientific System of Medicine, but a declaration of State Government that person is practicing Modern Scientific System that he is registered in the Medical Register of that State. The petitioner was not registered under the provision of Indian Medical Council Act, 1956. For professional practice, registration by the expert body constituted for that purpose is a prerequisite condition. Although the notifications issued by the Government of India or Government of Haryana a person who is eligible to practice Indian system of Indian medicine, can use allopathic modern medicines on the basis of his learning and training and can be enrolled under Indian Medical Council Act, 1956, but so long as he is not enrolled under Medical Council Act, 1956 he is not entitled to practice in modern medicine.’ In the present case also OP was not registered under the provision of Indian Medical Council Act, 1956.

                   It has been held by the Hon’ble State Commission, U.P. Lucknow, in a Complaint Case No.159 of 2014, titled as ‘Vinay Kumar Mishra Vs. Sri Mankameshwar Nursing Home etc.’ that ‘the doctor, being not qualified to practice Allopathy, was a quake (quack) or pretender to the medical knowledge and skill as a charlatan and hence guilty of negligent per se’.

12.              Though, the complainant himself was negligent as he did not go to get the checkup done from expert doctor after the OP referred the complainant on 07.11.2018 rather went to the doctor on 09.11.2018 i.e. after two days during which the multiple problems developed, but certainly there was a medical negligence on the part of the OP also. Thus, the complainant is entitled for the relief as claimed and accordingly, the complaint of the complainant is partly allowed and OP is directed to pay a compensation of Rs.1,00,000/- to the complainant for causing medical negligence. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

13.              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     

19.03.2024         Member                          Member               President