BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.251 of 2017

      Date of Instt. 26.07.2017

      Date of Decision: 02.03.2022

Ajit Singh aged about 70 years S/o Waryam Singh R/o WQ 250, Opposite Chitta School Basti Sheikh, Jalandhar.

..........Complainant

Versus

1.       Dr. Dalbir Singh (MBBS), MS. Oxford Hospital (P) LTD. 305,        Lajpat Nagar, Bhagwan Mahavir Marg, Near Nakodar Chowk,   Jalandhar.

2.       Dr. Anil Kumar Sood (M.D., D.M.) Cardiologist Oxford Hospital     (P) LTD. 305, Lajpat Nagar, Bhagwan Mahavir Marg, Near          Nakodar Chowk, Jalandhar.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                         

Present:       Sh. Arun Gandhi, Adv. Counsel for the Complainant.

                   Sh. Suteekshan Samrol, Adv. Counsel for the OP No.1.

                   OP No.2 exparte.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, whereinit is alleged that the complainant was retired Ex Service man from Army and during his job, he availed different facilities like free health benefits, insurance benefits and various other facilities provided by the government department and as an ex-employee complainant was in habit of regular routine check up from the army hospital under the scheme of Ex-Servicemen contributory health scheme and army department had also issued patient care note book to complainant of his ECHS POLYCLINIC situated at Jalandhar. That under the above said scheme any Ex-service men employee can take a benefit of free health treatment from the army hospital or any other private hospital if authority of army hospital refer to patient to other private hospital for better treatment and the whole expenses will be paid by the Army/Government for the treatment done by the private hospital and complainant regular using this facilities after his retirement just as a precaution wise. That on 03.04.2016 complainant went to army hospital for his health checkup as complainant was feeling weakness in his body and when he went to army hospital complainant was advised by the Col. Arijit Kumar Ghosh MD General Medicine DM (Cardiology) Senior Advisor Medicine and Cardiologist of army hospital to get rest as complainant was suffering from weakness and chest pain and gave some medicines initially and also referred to Oxford Hospital for just 2D ECHOCARDIOGRAPHY TEST from the Cardiologist with latest machines and technology and for no other purpose. That on the very next day as per the advice of the senior doctor of army hospital complainant went to the hospital of OP No.1 and when complainant entered into the hospital, staff of hospital was firstly treated like a beggar and when OP No.1 called complainant into his office asked about complainant’s health and on very first stage complainant elaborate each and everything clearly about his health to OP No.1 and complainant told just for 2D ECHOCARDIOGRAPHY TEST as directed by the Col. Arijit Kumar Ghosh MD General Medicine DM (Cardiology) Senior Advisor Medicine and Cardiologist of army hospital, but OP No.1 got admitted complainant immediately without his consent. That thereafter OP No.1 with help of staff of hospital took a signature of complainant when complainant asked about reasons for signature and hospital staff told to complainant that it is mere an formality for his body check up/test and as per the averments of the staff/OP No.1, complainant signed on the papers/documents of the hospitals. That thereafter OP No.1 gave a directions to the staff for treatment which complainant was not aware about and did so many test which complainant as a layman doesn’t have knowledge and without getting consent from client immediately got admitted into his hospital and did so many treatment and tests just to grab money from complainant through illegal resources as OP No.1 knew this fact complainant is an ex-servicemen from army and complainant is holding an insurance benefits/ex-servicemen benefits issued by the army/govt. and to claim the huge amount OP No.1 did so many medical treatment which was not required and without the consent of complainant and without obtaining permission from the Col. Arijit Kumar Ghosh MD General Medicine DM (Cardiology) Senior Advisor Medicine and Cardiologist of army hospital. That thereafter OP No.1 called then OP No.2 who is an expert/specialist doctor of the hospital to install stunt into the body of the complainant as OP No.2 alongwith the help of the OP No.1 and staff members of the hospital got installed two different stunt into the body of complainant which was not required for the body of complainant and also directed complainant to have certain medicine. Complainants also have reports in which was issued by the OP No.1. That on 04.04.2017 OPs got admitted complainant and on 07.04.2017 OP No.1 and OP No.2 discharged complainant by issued a file having UHID No.88464 dated 07.04.2017 in which having all the record of treatment. That soon after the treatment complainant was feeling much more pain and much more weakness as which was never felt before and thereafter on 25.07.2017 complainant again went to the army hospital for his health check up. When the Col. Arijit Kumar Ghosh MD General Medicine DM (Cardiology) Senior Advisor Medicine and Cardiologist of army hospital saw the reports of complainant he was shocked to know that he was wrongly admitted and got treated by both the OPs and immediately told to complainant to go again into the hospital of OP No.1 and get the full treatment recording C.D. from them and on his averment, complainant alongwith his son went to the hospital of OP No.1 and demanded for the full version recorded treatment C.D. of the complainant and both OPs firstly said the complainant that we don’t have any treatment recorded CD and when complainant pressurized OP No.1 then OP No.1 said wait for some time and even though Op No.1 did not provide the full version treatment recorded CD to complainant and on very next day he again went to the army hospital and Col. Arijit Kumar Ghosh MD General Medicine DM (Cardiology) Senior Advisor Medicine and Cardiologist of army hospital made an endorsement on the report issued by the OP No.1 to complainant during treatment and write with red pen on the report that ‘don’t harass the complainant and handover the CD required by the cardiologist and signed on the endorsement’. Thereafter the OP No.1 issued the treatment recorded CD to the complainant. That when Col. Arijit Kumar Ghosh MD General Medicine DM (Cardiology) Senior Advisor Medicine and Cardiologist of army hospital saw treatment recorded CD he was shocked to saw that complainant was got wrong treatment by the OPs and put/install illegally and unnecessarily stunt into the body of the complainant which was not required for the body of complainant and in this regard Col. Arijit Kumar Ghosh doctor of army hospital made his views for wrong treatment on patient care note book and immediately suggested complainant for ECG Test and in which got cleared that various parts of complainant was unnecessarily filled by the OPs by wrong treatment which resulted blockage, physical pain and health of complainant became more down and worst. That before this wrong and illegal treatment complainant was working in irrigation with very active manner and had active health and was earning more than Rs.50,000/- per month from the irrigation and serve his family being a head of the family but after this wrong and illegal treatment by OP health of complainant have become like worst and he could work as actively as he was worked before the treatment and there is an huge loss of his internal physical and mental health. That the OPs deliberately and intentionally played with the body of complainant just to grab money from complainant and complainant suffered harassment, troubles, physical inconvenience, mental tension and agony and pain 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 complete health treatment of the complainant under the guidance superior/expert and concerned doctors and further OPs be directed to pay the damages for deficiency in service, negligence and unfair trade practice, to the tune of Rs.20,00,000/- and further be directed to pay the cost of the present proceedings.            

2.                Notice of the complaint was given to the OPs, but despite service OP No.2 failed to appear and ultimately, OP No.2 was proceeded against exparte, whereas OP No.1 appeared through its counsel and filed its reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form. That the complainant has got no locus-standi to file the present complaint. That the present complaint is bad for mis-joinder and non-joinder of necessary parties. That the present complaint is hopelessly time-barred. That the complaint of the complainant is false, frivolous and vexatious to the very knowledge of the answering OP. That this Commission has got no jurisdiction to entertain and try the present complaint. The adjudication of the present matter will require recording of evidence as such a numbers of documents and the statement of the witnesses are needed to dispose of the present controversy. As such this Commission cannot try the present complaint. That the complainant has not come to the Commission with clean hands and has suppressed the true and material facts from this Commission. The complainant is guilty of concealment of material facts from this Commission at the time of filing of the present complaint. That the complainant is stopped from filing the present complaint by its own act, conduct and omissions. That the present complainant has got no cause of action against the OP No.1 as such the present complaint is liable to be dismissed with special costs to the tune of Rs.50,000/-. On Merits, it is admitted that under the above said scheme any ex-servicemen employee can take a benefit of free heath treatment from the army hospital or any other private hospital if authority of army hospital refer to patient to other private hospital for better treatment and the whole expenses will be paid by the army/government for the treatment done by the private hospital and the admission of the complainant in the hospital is also 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.                In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit Ex.CA alongwith some documents Annexure-A to Annexure-L and closed the evidence.

4.                In order to rebut the evidence of the complainant, the counsel for the OP No.1 tendered into evidence affidavit Ex.OP1/A and some documents Ex.OP1/1 to Ex.OP1/13 and closed the evidence.

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

6.                The contention of the Ld. Counsel for the complainant is that there is a negligence and deficiency in service on the part of OPs. The complainant is an ex-servicemen and 70 years old. On 03.04.2016, as he was feeling weakness and went to army hospital for health checkup and was referred by the Col. Arijit Kumar Ghosh, MD General Medicine DM (Cardiologic) of army hospital to Oxford Hospital for just 2D Echo cardiography test and for no other purpose. When he visited the hospital, he was got admitted immediately and got conducted tests without his consent and without the consent of Col. Arijit Kumar Ghosh MD. The OP No.2 wrongly installed two different stunts into the body of the complainant, which was not required for the body of the complainant. After the operation, he felt more pain and went to army hospital. Col. Arijit Kumar Ghosh told him that he was wrongly got admitted by OPs and wrong treatment was done upon him. The complainant was having active health prior to his admission and his treatment from the OPs, but due to wrong treatment and medical negligence of the OPs in order to get huge amount from the complainant, the complainant has suffered a lot and his physical as well as mental health has deteriorated. He has further submitted that the complainant has suffered harassment, physical inconvenience, medical tension and pain due to deficiency in service and unfair trade practice on the part of OPs. Request has been made to allow the complaint.

7.                The contention of the Ld. Counsel for the OP No.1 is that there is no medical negligence or unfair trade practice on the part of the OPs. When he was referred to the Oxford Hospital, his condition was not good. He was suffering from heart problem and as per referral form, the complainant could be admitted to the hospital, if required. After echocardiography, it was found that the complainant’s heart was working only 25%, which means that his pumping was very poor and his heart was in-severe deficiency in service-function. The necessary tests were got done and the proper procedure has been followed by the OPs, which was required for the heart patient considering the situation of the complainant at that time. The complainant himself has given the consent to the OPs to do angiography as well as angioplasty and has authorized OP No.1 and OP No.2 to follow the procedure. At the time of discharge, no complaint was ever made by the complainant rather he gave good rating for the treatment and management of the hospital. No expert opinion has been filed on record showing that the wrong treatment was done on the complainant. Even Col. Arijit Kumar Ghosh has not given any opinion regarding the wrong treatment. The complainant has concealed the facts of his hypertension and he is suffering from Chikungunya from the OPs. Thus, there is no fault of the OPs. The complaint is bad for non-joinder of necessary parties as the hospital has not been made a party, which is a necessary party. Therefore request has been made to dismiss the complaint.

8.                It is not disputed that the complainant was 70 years old at the relevant time and he was an ex-servicemen. It is also not disputed and has been proved also by Ex/Annexure-A that he was referred by army hospital to Oxford Hospital. Perusal of Ex./Annexure-A shows that in the column of provisional diagnose, there is a reference of the fact CAD LV dysfunction and it was mentioned in Ex.Annexure-A admission as required against the column of investigation, 2D echocardiography is written against the column of consultation, cardiologist has been written and against the column of reference is written to Oxford Hospital (P) Ltd., but Oxford Hospital has not been made party, which was a necessary party.

9.                As per the documents Ex./Annexure-B pages No.1 to 6, the required tests were got conducted and as per Ex./Annexure-C, page No.1, the past history of the complainant was mentioned as Hypertension and Chikunguniya 4 months back. He was discharged when his condition improved. Other documents proved on record by the complainant Ex./Annexure-C from page 2 to 4 are the tests reports. Ex./Annexure-D is the regular complaint book allegedly issued by the army hospital. Perusal of this document, page No.1 and 2, show that this document nowhere finds/mentioned the name of the patient i.e. the complainant. It has not been proved that by whom this document has been issued and under what circumstances and in what context, this document was issued. Whose signatures are appending on the document, this has not been proved by any person. Ex./Annexure-G is the ECG Report. Ex./Annexure-H is the Letter written by the complainant to director ECH Regional Central Jalandhar Cantt. This was the complaint moved by the complainant Ajit Singh. The OPs have proved on record the enquiry report of Punjab Medical Council Mohali. As per this report, the complaint against Dr. Anil Kumar Sood was considered and it was concluded that “The council unanimously decided that procedure done by Dr. Anil Sood is appropriate as per the expert opinion of PGIMER, Chandigarh regarding treatment (of heart disease) of Sh. Ajit Singh s/o Sh. Waryam Singh during his admission in Oxford Hospital, Jalandhar. So the case should be filed.”

10.              In order to come to conclusion if there was a medical negligence on the part of the doctor, it is necessary to understand what the medical negligence means. It has been held by the Hon’ble Supreme Court in a case titled as “Vinod Jain Vs. Santokba Durlabhji Memorial Hospital”, that in cases of medical negligence, the liability of the doctor will come only, if either the doctor did not possess requisite skills professes to have been possessed by him and he did not exercise with reasonable competence in given case, skill which he possesses. The medical negligence has been defined by the Hon’ble Supreme Court, in a case titled as “Jacob Mathew Vs. State of Punjab and Anr.” in 2005 (6) SCC 1, which is 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.              In the present case, this is not the case of the complainant that OPs were not having required skills. The grievances of the complainant is that the doctors have given wrong treatment by installing stunts as it was not required as per his condition. Perusal of Ex.OP1/4, which is, the consent of the patient permitting the doctors to adopt the procedure required for his condition and treats him accordingly. Ex.OP1/5 is also the Consent For Vulnerable Group, vide which it has been agreed by the complainant that this consent shall remain in full force unless withdrawn in writing by the person who has signed below on behalf of the patient. This document bears the signatures of Ajit Singh himself i.e. the complainant. Ex.OP1/6 is the consent for Angiography duly signed by Smt. Surjit Kaur, the wife of the complainant. Similarly, Ex.OP1/7 is the consent for Angioplasty duly signed by Smt. Surjit Kaur, the wife of the complainant. The signatures of Surjit Kaur or Ajit Singh have not been denied by the complainant anywhere nor it has been alleged that Surjit Kaur is not the wife of the complainant. Ex.OP1/10 is the report of Cardiac Catheterization & Angiography, Ex.OP1/11 is the report of Coronary Angioplasty, Ex.OP1/12 is the discharge summary, wherein it has been mentioned that at the time of discharge, the condition of the complainant was improved. As per Ex.OP1/10, the impression was that coronary artery disease, left bundle branch block and double vessel disease. Ex.OP1/1 is the feedback form duly filled by the Surjit Kaur, the wife of the complainant, in which she has given good scale regarding the management and services, care by the hospital and there was no suggestion given or complaint given by the complainant or his wife. As per the record, the services and the care of the doctor does not seem to be lacking anywhere. 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.”

12.              In the present case, the complainant has not led any evidence of any expert or has proved on record any document given by any expert to show that the OPs have wrongly installed stunts when it was not required and he has not been treated (of heart disease ) properly. He has not proved on record that he was referred to Oxford Hospital just for check-up as alleged and he has wrongly been admitted and treated by the OPs. He has failed to prove that the doctors misbehaved with him. No evidence of any expert is on the record to prove the alleged medical negligence except his own affidavit. He has failed to prove that the OPs were deficient or negligent in service and has further failed to prove that there was lack of care on the part of the OPs. Thus, in view of the above detailed discussion, the complaint of the complainant is 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.

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    02.03.2022         Member                            Member               President