BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR
Complaint No.33 of 2017
Date of Instt. 08.02.2017
Date of Decision: 23.02.2021
Sumit Jain son of Sh. Deep Kumar Jain, resident of House No.46, Indra Nagar, Phagwara, District Kapurthala.
..........Complainant
Versus
Dr. Gurjeet Singh Saluja Digestive Disease Centre, Joshi Hospital, Kapurthala Chowk, Jalandhar.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Karan Kalia, Adv. Counsel for the Complainant.
Sh.G.P.S Rana, Adv. Counsel for the OP.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant against OP on the averments that on 17.11.2016 at about 10.30 am, Swaran Jain wife of Deep Jain, mother of the complainant was brought to the hospital of OP with complaint about numbness, weakness in her body, severe head-ache, pressure on her head, have not had much sleep, slurring speech and vision loss. OP came and after listening the problem, he got ultra sound and found stones in report, he requested on that day whether they should go and take advice from Neurologist but OP sent patient back with assurance that there is no need of it. The said problem is due to high blood pressure and asked them to come on 23.11.2016 for operation. On 21.11.2016, OP got her admitted in the hospital and started the treatment. The complainant time and again approached OP and told him the said problem of his mother, but OP did not pay any heed and not make proper diagnosis of disease from which she was suffering. OP took wrong decision for treatment. Even before she suffered operation, the OP did not disclose any information, which was relevant and necessary for the patient and her family members to make decision. After operation, OP told him that she will be conscious after 1.00 hour but even after passing of full day, she did not gain consciousness. On 22.11.2016 in the morning at about 7.00 am when complainant visited Smt. Swaran Jain the mother of the complainant in ICU, he was shocked to see that his mother was lying unconscious. There was vomit by the side of pillow and sheet was wet with urine. No one was there to listen. The complainant felt helpless and miserable as despite taking the prescribed medicines, there was no improvement. On 22.11.2016, OP shifted mother of the complainant to NASA Brain & Spine Centre in a very neurologically deteriorated condition without any consent and knowledge of the complainant, where she remained under treatment in the said centre till 19.12.2016. The complainant had to make payment of Rs.7,00,000/- for bills of doctors, medicines and other tests. OP breached the confidence of the complainant. As a result of wrong and negligent treatment, condition of Smt. Swaran Jain became worse and serious. The mother of the complainant is on bed without any movement and her entire family is on toes round the clock. The complainant and his family is paying Rs.1500/- daily for the said purpose. Owing to gross medical negligence committed by OP, said patient suffered irreversible bodily and neuro infirmities, besides undergoing severe trauma both physical as well as mental. He also served a legal notice dated 23.12.2016 upon OP but OP gave false and frivolous reply to the same. Due to above said act and conduct of OP, the complainant has filed the present complaint and prayed that the OP be directed to pay Rs.7,50,000/- as medical expenses incurred by complainant, Rs.8,00,000/- for medical negligence, besides Rs.3,50,000/- as compensation for mental harassment with interest @ 18% per annum and Rs.55,000/- as cost of litigation.
2. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that the complaint is wholly misconceived and not maintainable. The complainant has failed to produce an iota of evidence or any material on record to show that there has been any negligence on the part of OP while treating the complainant. On merits, it was averred that on 17.11.2016 Smt. Swaran Jain mother of the complainant visited Dr. G.S Saluja with a complaint of severe pain in her abdomen and vomiting. The patient was thoroughly examined and ultrasonography of abdomen was advised. On ultrasonography (USG) of abdomen, Common Bile Duct (CBD) stones were detected. Dr. G.S Saluja advised the patient to undergo Endoscopic retrograde cholangiopancreatography (ERCP) for removal of CBD stone. Surgery was successfully performed by Dr. G.S Saluja on 21.11.2016. After surgery the patient was in stable condition. At 8.00 pm she was not responding to oral commands. Neurological consultation was taken. She developed cerebral infarction with right sided hemiparesis for which she was shifted to NASA Hospital with the consent of relatives on 22.11.2016. Due to the past history of chronic disease and irregular treatment, her cerebrovascular system was weak and diseased, which might have resulted in Cerebral Artery Stroke resulting in Cerebral Infarction. The mother of complainant was thoroughly examined and after USG of abdomen, she was diagnosed to be suffering from CBD stones. Dr. G.S Saluja advised the patient to undergo ERCP for removal of CBD stones. The OP made a right diagnosis of CBD stones, which is proved on the basis of USG report of the patient. The decision for treatment i.e. removal of CBD stone through ERCP is true and well documented in medical textbooks. Any deficiency in service and unfair trade practice was denied by OP. Rest of the averments made by the complainant were denied by OP and it prayed for dismissal of the complaint.
3. The complainant has tendered in evidence his affidavit as Ex.CA along with copies of the documents Ex.C-1 to Ex.C-23. On the other hand, OP tendered in evidence affidavit of Dr. Gurjeet Singh Saluja Digestive Disease Centre as Ex.OP-A along with copies of document Ex.OP-1 on the record.
4. We have heard learned counsel for the parties and have also gone through the record as well as written arguments filed by the parties.
5. The glance at evidence is required by us to settle the controversy in this case. The complainant alleged deficiency in service and unfair trade practice on the part of OP by way of his affidavit Ex.C-A on the record. Ex.C-1 is copy of aadhar card of the complainant. Ex.C-2 is copy of prescription slip of the doctor. Ex.C-3 is copy of ERCP report of the patient. Ex.C-5 is copy of discharge summary of the patient. Ex.C-6 and Ex.C-7 are copies of patient discharge bill. Ex.C-8 is copy of legal notice served upon OP. Ex.C-10 is copy of reply to the legal notice. Ex.C-11 is copy of summary of the patient. Ex.C-13 is copy of consent given by relatives of the patient. Ex.C-14 is copy of call book (containing consent of complainant). Ex.C-15 and Ex.C-16 are copies of tests of patient. Ex.C-17 is copy of certificate prepared by Puri Bone and Joint Care Clinic. Ex.C-18 to Ex.C-23 are copies of bills for medicines purchased by the complainant.
6. To refute this evidence of the complainant, the OP tendered in evidence affidavit of Dr. Gurjeet Singh Saluja Digestive Disease Centre Joshi Hospital Kapurthala Chowk, Jalandhar as Ex.OP-A on the record. This witness denied any deficiency or unfair trade practice on the part of OP.
7. From perusal of complaint it has transpired on 17.11.2016 at about 10.30 am, Swaran Jain wife of Deep Jain, mother of the complainant was brought to the hospital of OP with complaint about numbness, weakness in her body, severe head-ache, pressure on her head, have not had much sleep, slurring speech and vision loss and on 21.11.2016, OP got her admitted in the hospital and started the treatment. Basically, the complainant was suffering from CBD stone, this fact was clear from discharge summary Ex.C-5 on the record and further document Ex.C-3 ERCP report, in which it is clearly mentioned that Impression: CBD Stone Clearance Done. But after this, no report regarding clearance of CBD is placed on record by OP in support of their case. OP came and after listening the problem, he got ultra sound and found stones in report, he requested on that day whether they should go and take advice from Neurologist but OP sent patient back with assurance that there is no need of it. The said problem is due to high blood pressure and asked them to come on 23.11.2016 for operation. When OP gave assurance to complainant to remove CBD stone then on what basis they failed in performing their duties. OP themselves in para no.7 of its written reply mentioned that surgery was successfully performed by Dr. G.S Saluja on 21.11.2016, after surgery patient was in stable condition and further stated that at 8.00 PM she was not responding to oral commands. Neurological consultation was taken. From perusal of this para, it is clear that OP failed in performing their duties, one side they pleaded that surgery was successful and on other side they pleaded that she was not responding to oral commands and Neurological consultation was taken. Before admission of mother of the complainant in the hospital of OP, after listening the problem of complainant, he got ultra sound and found stones in report, he requested on that day whether they should go and take advice from Neurologist but OP sent patient back with assurance that there is no need of it. The said problem is due to high blood pressure and asked them to come on 23.11.2016 for operation. At the time of admission complainant requested OP whether they should go and take advice from Neurologist but OP assured him that there is no need of it and in its written reply OP themselves pleaded patient was not responding to oral commands. Neurological Consultation was taken. This act and conduct of OP proved that he is deficient and negligent in performing his duties. The complainant spent more money on the treatment of his mother, which proved from documents placed on the record. OP has not produced any valid and cogent evidence in support of their case. OP has only produced on record affidavit of Dr.G.S Saluja Digestive Disease Centre Joshi Hospital Jalandhar. But except this affidavit, OP has neither placed on record affidavit of any doctor who operates the patient nor any valid document placed on record in support of his case, which proved that they are not negligence in their profession.
8. From perusal of entire record on the file, it is well proved that OP is negligent and deficient in providing services to her. The fact of medical negligence is settled by Apex Court has also held in case of titled as Nizam Institute of Medical Sciences vs. Parasnath S. Dhananka & Ors 2009 (2) CPC 402 (SC) that once the complainant had discharged initial burden, it was incumbent upon hospital authorities to prove that they had done their duty without any negligence on their part which they have failed to do.
“A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.”
9. The fact of medical negligence is also proved from judgment Savita Garg vs. Director National Heart Institute reported in (2004) 8 SCC 56 it has been observed as under:
"Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities."
10. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage".
11. The treatment given to patient by doctor based on liability of medical practitioner. There is an unwritten contract between the two. Patient entrust himself to doctor that doctor agrees to do his best at all times for patient. Such doctor-patient contract is almost always an implied contract except when written informed consent is obtained. This fact is clear from citation of Hon’ble Supreme Court of India in case titled as Dr. P.B Desai vs. State of Maharashtra and another reported in (2013) 6 Supreme Court 450 that due to very nature of medical profession , degree of responsibility on practitioner is higher than that of any other service provider. Concept of doctor-patient relationship forms foundation of legal obligations between doctor and patient.
12. The citation Dr.P.B Desai vs State of Maharashtra (supra) further held that “if patient suffered because of negligent act/omission of the doctor, the same gives right to the patient to sue the doctor for damages. This is a civil liability of the doctor under law or tort or contract. The negligent act of doctor may also give rise to criminal liability as well.” When reasonable care, expected of the medical profession is not rendered, the same amounts to negligence. If doctor fails to perform his duty during treatment then he is liable for medical negligence. The fact of medical negligence is also proved by judgment of Apex Court in V. Krishnakumar versus State of T.N reported in 2015(2) Apex Court Judgments 762 (S.C) wherein it has been held that “Hospital is vicariously liable for the acts of its doctors”. In this case, no document regarding qualification of the doctor is produced to support of his case that he is qualified to perform his duty.
13. In the absence of any cogent evidence or valid documents, we are unable to rely upon the submissions of OP in this regard that who is an medical expert person in the medical science and attributing no medical negligence on behalf of OP. In the light of our above discussion, we allowed the complaint of the complainant and OP is directed to pay Rs.7,50,000/- which has spent by complainant for treatment of his mother with 5% interest from the date of admission till its actual realization. The complainant is also entitled Rs.30,000/- as compensation for mental and physical harassment and Rs.5000/- as cost of litigation. The opposite party is also directed to deposit Rs.5000/- as cost in the Consumer Legal Aid Account maintained by this Commission. Compliance of this order be made within the period of 45 days from the date of the receipt of the copy of this order.
14. Copies of the order be sent to the parties, as permissible, under the rules.
15. File be indexed and consigned to the record room after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
23rd Day of February 2021
(Kuljit Singh)
President
(Jyotsna)
Member
