MRS. M. SHREESHA, MEMBER

Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short, “the Act”) is to the order dated 10.05.2016  in First Appeal No. 1021/2014, passed by the Haryana State Consumer Disputes Redressal Commission (in short, “the State Commission”).  By the impugned order, the State Commission has concurred with the finding of the District Consumer Disputes Redressal Forum, Panchkula (in short “the District Forum”) and dismissed the Appeal preferred by the Complainant.

2.       The District Forum observed that there was no negligence on behalf of the first Opposite Party namely, Dr. Geeta Jindal (hereinafter referred to as “the treating doctor”) and dismissed the Complaint. However, the Complaint was allowed against the second Opposite Party (hereinafter referred to as “the scanning centre”) and the United India Insurance Company arrayed as the fourth Opposite Party was also jointly and severally liable along with the scanning centre to compensate the Complainant with a sum of ₹20,000/- together with interest @ 9% p.a. on the awarded amount.

3.       The facts in brief are that on 04.10.2011 the Complainant got severe pain and visited the treating doctor, who examined the Complainant and gave some medicines stating that the Complainant was suffering from fissures and assured him that the pain would decrease within two days. On 06.10.2011, the Complainant again contacted the treating doctor and informed her about his condition. But the treating doctor called back the Complainant only at 10.30 p.m. as she was out of station. At about 6 a.m. the next day the Complainant rushed to the treating doctor in severe pain. It is averred that the Complainant was admitted and treated with and the treating doctor visited him only once or twice during his stay and an amount of ₹36,450/- was charged towards his treatment though the Complainant was assured that the expenses would not exceed ₹6,000/- to ₹7,000/- for the entire treatment. He was asked to deposit some more money, but when he was not ready to do the same, he was discharged on 12.10.2011. He was charged ₹1850/- for tests of HV/TLC.DLC whereas the rates in any lab is only ₹250/-. It was also averred that the treating doctor charged ₹12,500/- towards ICU charges.

4.       It was averred that after discharge, the Complainant went to Gokul Hospital, where an ultrasound was done at the scanning centre and the report showed that there was no localised fluid collection. After examining the report the concerned doctor was satisfied and called the Complainant on 13.10.2011 at 6.00 a.m. and operated upon the Complainant and drained 600 ml pus and discharged the Complainant on 14.10.2011. Subsequent to the treatment rendered at Gokul Hospital it was stated that the Complainant felt relief. The Complainant lodged a Complaint with the higher medical authorities including the Director General of Health Services, Haryana against the treating doctor and a medical board was constituted and an enquiry was conducted on 12.04.2013 and the board without going into the merits gave their report in favour of the treating doctor. Hence the Complainant approached the District Forum seeking the following reliefs:

1. The O.P. No. 1 be directed to refund the amount charged from the Complainant on account of wrong and unnecessary treatment i.e. ₹36,450/- alongwith interest @ 18% per annum from the date of receipt till realisation.

2. The Ops be directed to pay ₹5,00,000/- on account of pain, suffering and mental agony suffered by the complainant at their hands.

3. ₹10,000/- on account of expenses of the litigation.

    

5.       The treating doctor filed her Written Statement denying that any assurance was given to the Complainant that he would be alright  in two days; that the Complainant did not come at 10:30 p.m., but only came on the next morning i.e. 07.10.2011 and was admitted and he was told that the expenses would be ₹6,000/- to ₹7,000/- per day but not for the entire  treatment; the Complainant was diagnosed as a case of cellulites, which is treated with antibiotics, but if pus is formed it required minor surgery i.e. incision and drainage; the Complainant was admitted and given antibiotics and pain killers together with hot fermentation which helped in resolving cellulites; the Complainant did not respond to routine antibiotics and therefore higher antibiotics which were expensive were suggested; it was denied that the Complainant was under the care of nursing staff and that there was no proper supervision by the treating doctor and it was also denied that the bills given were overrated but in fact were raised as per actual consumption. It was also stated that an enquiry was conducted by a Specialist Board constituted by Director General of Health, Haryana which reported that the treatment rendered by the treating doctor was satisfactory.

6.       The scanning centre filed its Written Statement stating that the Complainant approached the centre for ultrasound on the prescription of Dr. Subhash Sharma. The ultrasound was done and the findings were handed over to him. In the ultrasound examination it was concluded that there was no significant localized collection of fluid. Scanning centre had no knowledge that the treating doctor of Gokul Hospital was satisfied with the findings of ultrasound report or not. It was averred that every scan report is to be clinically correlated by the treating doctor. It was denied that the wrong report was given to the Complainant and that the ultrasound was done as per well established norms of medical science and therefore there is no deficiency of service on their behalf.

7.       The third Opposite Party namely, New India Insurance Company filed the Written Statement submitting that the professional indemnity policy was issued in favour of the treating doctor covering the period  from 17.07.2010 to 16.07.2011 for lump sum limit of ₹10,00,000/-

8.       The fourth Opposite Party namely, United India Insurance Company Limited filed the Written Statement stating that a professional indemnity policy was issued covering period from 01.10.2010 to 31.10.2010 in favour of the scanning centre and there is no deficiency of service on their behalf and prayed for dismissal of the Complaint.

9.       The District Forum based on the evidence adduced and pleadings put forwarded allowed the Complaint in part against the second and fourth Opposite Party and exonerated the treating doctor. The District Forum based its finding on the report of the medical board dated 12.04.2013, which has stated that the treatment rendered by the treating doctor is in accordance with the medical practice and literature.

10.     Aggrieved by the said order, the Complainant preferred an Appeal before the State Commission, the State Commission while concurring with the finding of the District Forum observed as follows:

“In the case in hand, indisputably the complainant had complained to the Director General of Health Services, Haryana, Panchkula, who conducted an inquiry by constituting a specialist board to look into the matter.  The board consisted of Dr. Navjot, Senior Medical Officer; Dr. Ashwani Bhatnagar, Medical Officer and Dr. Vinish Narang, Medical Officer and gave report (Exhibit C-16) observing that “there is no medical negligence on part of treating doctor (Dr.Geeta Jindal)”. It has been clearly mentioned in the report that the line of treatment for cellulites (conservative) adopted by Dr. Geeta Jindal-respondent No.1 was in concurrence with medical books and literature.  So, the report (Exhibit C-16) is the best piece of evidence. No evidence has been led by the complainant contrary to the above said report or that how the report of Board is wrong. In view of this, it cannot be said that there was any negligence on the part of the respondents while treating the complainant. No case for interference is made out.”

11.     Heard learned amicus curie and also the counsel for the respondents at length.

12.     It is the case of the Complainant that both the fora below have relied only on the Medical Board’s opinion, whereas the Medical Board had clearly stated that the Complainant was in an Air Conditioned (AC) room with  oxygen supply, crash cart, defibrillator etc; that the board cannot comment on the fictitious bills alleged to have been raised by the treating doctor and that based on the statement of Dr. Geeta Jindal it was recorded that “Central Line”  was placed through the basilica vein and finally that cellulites is a precursor of abscess, the treatment of which is incision and drainage.  Learned amicus curie vehemently contended that the main allegation  of the Complainant is with respect to the fact that no incision and drainage was ever performed by the treating doctor; that the Complainant was never put in an ICU but instead ICU charges of ₹12,500/- was billed which amounts to unfair trade practice; that the bill shows that ₹11,200/- was charged towards drugs and disposals which is an inflated bill as ‘Central Line’, is required only when the patient is injected medicine through cannula, in the instant case  the Complainant was never put on the Central Line and therefore the question of the Complainant being in the ICU does not arise. She also drew our attention to the ultrasound report dated 12.10.2011, which is the same date as that of the discharge, as can be seen from the discharge summary.

13.     For better understanding of the case the USG report is reproduced as hereunder:

”U.S.G.  SWELLING (RT. BUTTOCK)

No localized  fluid collection is seen

Distortion of the normal echotexture of the sub-cutaneous tissue is seen near the wound.

Muscles, other soft tissue structures & vessels  are normally visualized.

Clinical correlation & F.N.A.C. / Biopsy suggested”

14.     The discharge summary shows diagnosis Gluteal Abscess the procedure followed was incision and drainage with debridement and the following medicines were used:

• Cap. Forpan

• Tab. Lap

• Tab. Alaom 0.5mg.

• Tab. Levislat

• Syp. Merisel

          It is also stated in the finding that the pus was removed.

15.     As against this argument learned counsel for the Respondents vehemently contended that the Medical Board had given the right finding based on the medical literature and the treatment record; that the discharge summary shows that there was incision and drainage for which central line was used and the patient was kept in an AC room with all the infrastructure of an ICU and therefore the billing cannot be said to be inflated; that there is absolutely no negligence or unfair trade practice on behalf of the treating doctor and that both the fora below have given a concurrent finding regarding the same.

16.     From the aforenoted submission there are two issues which arise. So, we address ourselves to the issue whether the treating doctor was negligent in the treatment and also whether there was any unfair trade practice with respect to billing. Brief perusal of the Written Version filed by the treating doctor shows that only hot fermentation was given and when the patient did not respond to routine antibiotics, higher antibiotics were recommended which were stated to be expensive. It was also stated that there was no pus formation and unless and until there was pus formation surgery could not be performed. The specific averments in the Written Version are being reproduced as herein:

“5………It is further submitted that the complainant was diagnosed as a case of cellulitis, which either resolves with anti-biotic or it ends into pus formation and if pus is formed, it requires minor surgery incision and drainage and accordingly patient was admitted and was given anti-biotic/ pain killer and hot fermentation which helps in resolving cellulitis and in case patient did not respond to routine anti-biotic, then patient is to be suggested for higher anti-biotic which  are expensive, in this case since the patient was not responding to routine anti biotic, he was advised for higher anti-biotic, for which the complainant agreed for the same. But even then no 100% assurance can be given in medical treatment. It is further submitted that the complainant was told about the total expenditure of ₹6,000-7,000/- per day that includes room charges, doctor fees, drugs and disposable charges, investigation and nursing charges.

6………….. It is important to state here that there was no pus formation till the period the complainant remained with the OP No. 1 and unless and until pus is formed, surgery cannot be performed. It is further submitted that the OP No. 1 is having fully equipped ICU with air conditioned and modern gadgets are available and it is approved for various TPAS………………………”

(Emphasis supplied)

17.     From the aforenoted pleadings it can be clearly construed that no surgery was performed and the patient was treated with hot fermentation and antibiotics. Both the fora below have relied on the Medical Board’s opinion and therefore for better understanding of the case the same is reproduced as hereunder:

“1) The patient has alleged that he was diagnosed with Fissures at the time of admission and he was told that total expense would be around Rs.6-7 thousand. However as per record he was admitted on 07.10.2011 with a diagnosis of ischio-rectal cellulitis. Also as per statement of Sr. Geeta Jindal the expense of Rs.6-7 thousand was per day and not for the entire treatment.

2) The TLC was raised (13,200) and neutrophil count was increased (81%) which indicate presence of infection.

3) The patient was managed conservatively at the hospital.

4) The patient has alleged that he was kept in Non-ICU Room with no equipments. However as per the statement of patient and Dr. Geeta Jindal and after physical verification of the premises the room in which the patient was kept (as per patient’s statement) the room was found to be an AC room with oxygen supply, crash cart, defibrillator, ventilator etc. However as the board can’t comment on condition of room at the time of admission of patient.

5) The Patient has alleged that he was seen only once or twice within 6 days by the treating doctor. However, as per the records the patient was seen by Dr. Geeta Jindal on daily basis. Also the vitals were recorded on regular basis.

6) The patient also alleged that the doctor also made fictitious bill to justify the payment already received. The board can’t comment on this matter. Also the board is unable to comment on the allegation that he was not given all the medicines which were billed.

7) The treating doctor attempted aspiration twice which yielded only fluid and not pus. The fluid was sent for culture sensitivity.

8) On 10^th the Anti-biotics were stepped up.

9) The patient also alleged during the enquiry that central line was not used. However, as per statement of Dr. Geeta Jindal  the central line was placed through the basilica vein. 

10) The patient has alleged that he was overcharged for Hb/TLC/DLC. However as per record and the statement of Dr. Geeta Jindal he was charged Rs.1850/- for Hb/TLC/DLC/ fluid Culture sensitivity (twice). HbsAg, HCV, HIV, Blood Sugar (six times). The investigations were handed over to the patient in original to patient at the time of discharge and the patient has signed the receipt of the same.

11) On 12^th October he was referred to higher centre on request of patient as per the statements of Dr. Geeta Jindal and the patient.

12) On 13^th October he was operated at Gokul Surgical Hospital Incision and Drainage was done and he was discharged on 14^th October, 2011.

13) Thereafter, he was managed with dressings and the wound healed.

To conclude the board is unable to comment on the allegation made in point number 4 and 6. However, it is evident from above that the line of treatment for cellulitis (conservative) adopted by Dr. Geeta Jindal is in concurrence with medical books and literature. The cellulites is a precursor of abscess, the treatment of which is incision and drainage. Hence, the board is of the opinion that there is no medical negligence on part of treating doctor (Dr. Geeta Jindal).”

(Emphasis supplied)

18.     The Medical Board states in para 4 that the patient was kept in an AC room with oxygen supply, crash cart, defibrillator, ventilator etc. and further states that ‘however the board cannot comment about the condition of the room at the time of admission of the patient. Even the aspect of the usage of Central Line was decided by the Board based on the statement given by the treating doctor. It is pertinent to note that the Board did not comment on the allegation made by the Complainant regarding fictitious and inflated bills. The Board had given a specific finding that ‘a cellulites is a precursor of abscess, the treatment of which is incision and drainage. We find force in the submission of the learned amicus curie that the Board had given a finding on the premise that the incision and drainage was indeed conducted whereas the treating doctor in her Written Version specifically pleaded that only a conservative treatment was rendered which included antibiotic and hot fermentation. It is significant to mention that there was no surgery of any kind least of all incision and drainage having been done by the treating doctor.

19.     A perusal of the information given to the specific questions which was sought under RTI Act from the State Public Information Officer, Civil Surgeon, Sector-6, Panchkula shows as follows:

“Q.C-1.   What is the definition of the Centre Line?

Ans.  A Central Line  is an IV line that is inserted into a large vein (as the superior vena cava) typically  in the neck or near the heart for therapeutic or diagnostic purposes (as to administer medicines or fluids or withdraw blood).

Q E-1.     When a patient is suffering from Ischio rectal cellulitis/ Gluteal abcess and strong anti-biotics medicines/ injections were given to the patient than how much time to foam in pus more than 500 ml?

Ans. No clear cut answer can be given as it depends on lot of factors.

Q E-2. When the patient was not surgically operated than surgical material like Blade Surgical/ Cotton Pads/ Dial Flo/ Micro set/ high pressure line/ micropore/ Dressing set/ Betadine sol/ Betadine Scrue/ Gloves are required?

Ans. If the patient is not operated then all these things are not required. However if the abscess bursts open of its own then all these things are required to do the dressing and clear the wound.”

(Emphasis supplied)

20.     Even in the above information in answer to question E-2, it is stated that “if the patient is not operated then all these things are not required. However if the abscess bursts open of its own all these things are required for dressing.” These answers are with respect to the Central Line and the Pedia Set.  When there is a very specific pleading in the Written Version that there was no pus formation ‘till the period the Complainant remained with the treating doctor and unless and until pus is formed the surgery cannot be performed’.  It is not understood as to how it can be stated that the incision and drainage or any surgery was performed at all. Within two days when the patient was admitted in Gokul Hospital, incision and drainage was done and the pus was removed and the patient had felt instant relief. It is also the allegation of the Complainant that pre-investigative tests with respect to diabetes was not done when the patient was suffering from cellulites and was diabetic. The treatment rendered does not show that any pre investigative tests were performed to check the sugar levels of the patient as there is a direct nexus between diabetes and cellulites and the treatment thereon. When it is the contention of the treating doctor that there was no pus formation and no surgery was performed, the question of using surgical materials like Blade Surgical/ cotton Pads/ Dial flo/ Micro set/ high pressure line etc. does not arise. Based on it the only inference is negligent in not conducting the pre investigative tests for a patient admittedly suffering from cellulites and that no incision and drainage was done and therefore, we are of the considered view that the treating doctor did not render treatment as per standards of normal medical parlance. The Medical Board has given a finding only based on the statement made by the treating doctor for incision and drainage was indeed done, whereas the Written Version is contra indicative. It is pertinent to mention that the Medical Board has not gone into the aspect of billing.

21.     A brief perusal of the bill on Page 89 shows that the Complainant was billed for a blade surgical, gloves, micro set and other materials which are admittedly used for surgery. The Civil Surgeon under RTI has clearly stated that when the patient is not surgically operated, all the aforenoted  items are not required. Needless to mention that it is the normal medical practice in private nursing homes and hospitals, that the management of the nursing home/ hospital provide for all the medicines/ surgical items which are likely to be used and the billing is done subsequently confined to the items used. Admittedly, in the present case as the surgery was not performed the medicines/ surgical items which were not used were billed. There is also no evidence on record that the patient was ever put in an ICU. In fact it is the main case of the treating doctor that surgery was not required to be performed and the question of putting the patient in an ICU does not  arise therefore, the ICU charges of ₹12,500/- was wrongly billed we are of the considered view that such a billing amounts to unfair trade practice. Having regards to the bills, the averments made in the written version, the information procured under RTI and the treatment rendered we are of the considered view that the treating doctor is not only negligent in the treatment of the patient but has also wrongly billed the Complainant with charges for which the treatment was never rendered and therefore we are of the opinion that this act also amounts to unfair trade practice. For all the aforenoted reasons the treating doctor is liable to pay a reasonable lump sum compensation of ₹3,00,000/-, which includes medical expenses, the inflated billing, compensation for mental agony and the pain suffered by the Complainant. A perusal of the record shows that that the treating doctor is covered by an indemnity policy issued by the third Opposite Party namely, M/s. New India Insurance Company Ltd. and therefore the third Opposite Party is directed to pay this amount. It is pertinent to mention that an amount of ₹20,000/- awarded by both the fora below with interest @ 9% p.a. against the scanning centre, which was directed to be paid by the fourth Opposite Party namely, United India Insurance Company Ltd. and they did not prefer any Appeal either before the State Commission or any Revision before this Commission. Hence, the finding of deficiency of service against the scanning centre has attained finality.

22.     In the result, this Revision Petition is allowed with the aforenoted directions. Time for compliance is four weeks from the date of receipt of a copy of this order failing which the amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realization.

23.     We appreciate the assistance rendered by the Learned Amicus Curiae Ms. Preetika Dwivedi.  The Registry is directed to pay an amount of ₹20,000/- to the Learned Amicus Curiae from the Consumer Legal Aid Account, if not already paid.