Complaint No.70 of 2021.
Date of Institution:05.03.2021.
Date of order:05.03.2024.
Harwinder Singh son of Santokh Singh resident of Village Jaura Chhattran, Tehsil and District Gurdaspur-143520.
…...Complainant.
VERSUS
1. Dr. Harneesh Randhawa, Randhawa Hospital, 123 Mall Road, Tagore Colony, Kennedy Avenue, Amritsar-143001.
2. ICICI Lombard General Insurance Company Limited having address at ICICI Lombard House 414, Veer Savarkar Marg, Near Siddhivinayak Temple, Prabhadevi, Mumbai-400025 through its authorized signatory.
….Respondents.
Complaint U/S 35 of Consumer Protection Act.
Present: For the complainant: Sh.Amandeep Singh Saran, Advocate.
For the opposite party No.1: Sh.Sanjeev Mahajan, Advocate.
For the opposite party No.2: Sh.Sandeep Ohri, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Complainant Harwinder Singh had filed the present complaint U/S 35 of Consumer Protection Act against the opposite parties and praying that the directions may kindly be issued to the opposite parties to compensate him and his other family members to the tune of Rs.10 Lakh (i.e. loss of consortium, loss of love and affection, funeral expenses) on account of death of deceased Gurmeet Kaur and also to refund the amount of Rs.1,70,000/- received by opposite party alongwith interest as detailed above and he may also be awarded the amount of Rs.1,00,000/- for the physical harassment and mental agony at the hands of the opposite party including Rs.20,000/- as a cost of litigation
2. The case of the complainant in brief is that on 21.04.2020 his mother Gurmeet Kaur wife of Santokh Singh suffered from some chest pain and she was taken to the hospital at Gurdaspur under the supervision of Dr.Ram Murti who referred her to Amritsar. It was pleaded that on 26.04.2020 at about 2.00 P.M. complainant took his mother to the hospital of opposite party i.e. Randhawa Hospital Amritsar for checkup where she operated by the opposite party without getting the diagnosed i.e. without conducting any test or even without going through the previous medical record of the patient and also directed the complainant to deposit the amount of Rs.70,000/- which was deposited by him including several amount under misc. heads under force as he had no alternative. Complainant awaited outside the operation theater and at about 3.30 P.M. opposite party came out of the operation theater and disclosed that heart surgery of the patient was conducted successfully and the success rate will be 99% but after hearing the words of the opposite party complainant was shocked as opposite party conducted the heart surgery of the patient without any intimation, consent of complainant whereas patient was suffering from minor chest pain and opposite party conducted the surgery without diagnosing the true problem. It was further pleaded that till 10 P.M. complainant waited for the patient to became conscious but neither opposite party nor their staff members visited the patient after the surgery and thereafter complainant went to the office of opposite party and requested that why the patient is not getting conscious and why opposite party or his staff member had not checked up the patient. Upon which another shock was given by the opposite party to the complainant that the patient is not recovering her health and she must remain admitted in the hospital for further 10 days because her heart become weak. It was also pleaded that till 30.04.2020 patient i.e. mother of complainant remained unconscious and she never checked up by the opposite party rather on the asking of the opposite party, the staff member demanded money from the complainant again and again and Rs.1,00,000/- was deposited by him under pressure and he requested the opposite party well as their staff member to look after and take care of Gurmeet Kaur but they did not pay any heed his genuine request and thereafter complainant was called by the opposite party and asked him that kidneys of the patient are not working so they had took the patient on ventilation and also to conduct dialysis but after hearing it, complainant requested the opposite party to refer the patient to PGI Chandigarh as they have no treatment of kidney and condition of the patient was getting worst by passing of hours but even then opposite party did not bother about the request of the complainant and without his consent took the patient twice for dialysis at Amandeep Hospital, Amritsar and also extracted extra charges from the complainant on the pretext of dialysis forcefully and in this way opposite party played with the life of mother of the complainant in order to extract more and more money from the complainant by not giving proper treatment and no diagnose was performed before conducting the surgery as well as dialysis. Complainant is very much sure that due to the negligence on the part of the opposite party and his staff members who conducted the dialysis twice of the patient first on 29.04.2020 and again on 01.052020 who had undergone open heart surgery on 26.04.2020 and her body was unable to undergo dialysis twice only after two days of open heart surgery, the kidney problem was occurred and ultimately his mother lost her life on 01.05.2020. It was next pleaded that opposite party only concentrated to grab money from the complainant instead of giving proper treatment and despite his repeated requests, the patient was not referred to PGI Chandigarh which clearly shows the malpractice of the opposite party due to which his mother lost her life. CD relating to the treatment of mother was demanded by the complainant but opposite party in fraudulent manner handed over a blank CD to him and as such opposite party committed the offence, which is punishable under section 420 IPC. Decease was having other family members including brother and sister of complainant who all suffered very much due to the death of Gurmeet Kaur as all of them were having great love and affection with her and opposite party is responsible for all this. Complainant approached the opposite party again and again with folded hands and requested them to admit their guilt and to pay Rs.10 Lakh as compensation and to refund Rs.1,70,000/- but officials of the opposite party showed reluctance/high headedness attitude and also abused him with very offensive language and also threatened him for dire consequences and kept the matter lingered on one pretext or the other and finally refused to admit his genuine claim. Complainant also served a legal notice dated 09.07.2020 through is counsel and requested the opposite party to consider his above mentioned requests regarding compensation and refund but the opposite party replied to the notice by leveling vague allegations against the complainant in order to put curtain upon their illegalities, hence this complaint.
3. Upon notice opposite party No.1 appeared through their counsel and filed written reply by taking the preliminary objections that present complaint is wholly misconceived, groundless, frivolous, vexatious and is unsustainable in the eyes of law; that no specific, scientific and justified allegations in regard to the negligence or deficiency in providing services has been made by the complainant; that complainant has filed this complaint with false allegations of negligence to the Hon'ble Commission by claiming exorbitant amounts without any basis just to waste the valuable time and defame the opposite party; that complainant has approached the Hon''ble Commission with support of certain false and unscientific observations; that no such cause of action arose against the opposite party as such present complaint is not maintainable and is liable to be dismissed; that the present complaint is totally false, fabricated and on the basis of conjectures, assumptions and presumptions; that complainant has not approached to the Hon'ble Forum/Commission with clean hands as he intentionally, deliberately and willfully has not submitted true facts; that the present complaint is baseless and flagrant abuse of process of law and want to misuse the provisions of the CPA Act, 2019; that "res ipsa loquitor" cannot be applied in this case since the opposite party has explained factual medical issues as well as its legal implications in detail; that the complaint is bad for non-arraignment and mis-arraignment of parties as the opposite party is insured with ICICI Lombard General Insurance Company Limited through its professional indemnity policy No.4021/181562532/00/000 effective from 02 Nov. 2019 to Nov. 2020 and that opposite party is a well qualified and a reputed doctor, with substantial good will and experience of long standing successful medical practice. It was stated that on 26.04.2020 patient Gurmeet Kaur was brought by the patient party in Randhawa Hospital in a critical, life-threatening, dying-dying dead condition with cardiogenic shock and severe chest pain after the delay of 5 days of continuously chest pain from 21.04.2020 to 26.04.2020 which was sole negligence of patient party and they solely responsible for keeping the patient in Gurdaspur when knowing fully that there is no cardiac hospital, no heart specialist, no CCU in city and as such patient party directly contributed to the death of the patient due to heart and kidney failure by causing 5 days delay. It was further stated that cardiogenic shock caused compromised blood supply to brain, heart, liver and kidney which most likely long term effect on kidney in an aged patient. After taking medical history of patient emergency medical tests were conducted and ECG was also done in the emergency room itself and without all the medical and physical examination, diagnosis was not possible. Patient party i.e. both sons of patient were shown the blocked artery, they were explained how the blockage will be removed and the stent will be placed and no guarantee warrantee or any assurance was ever given to the patient party for 99% cure as she was an extremely old aged with life-threatening heart attack, life-threatening cardiogenic shock and heart blockage and as such no guarantee of survival can ever be given. Patient party was informed that the survival rate of the procedure is 90% but there was also 10% death rate as they had delayed in admitting the patient to a cardiac specialist hospital and 90% survival does not mean that there will no long-term effect on brain, liver and kidneys and overall health. It was also informed to the patient party that the cost of treatment would be around Rs.2 lacs for which they agreed but the opposite party cardiologist suggested them to discuss with other family members first and they were also advised that to take second opinion from any higher center like IVY Hospital or to take the patient any hospital of their choice for further treatment and all these incidents were recorded by the opposite party. It was also stated that patient was treated by the opposite party diligently, prudently with due care and caution for heart attack, cardiogenic shock and heart block and everything was informed/done to the patient party by the treating doctors after receiving their consent. Patient was admitted in ICU of the hospital where she was regularly examined by nursing staff, doctors and cardiologist and their notes and timings were noted on the case file of the patient and for kidney function patient was seen by a qualified nephrologist who performed the dialysis after taking consent of the patient party. Patient died her natural death, succumbed to her life-threatening illnesses/heart attack, cardiogenic shock and heart blockage which caused by the delay of 5 precious days which could be done by the patient party in seeking the expert care decreased the survival chances and accelerated the death chances in the deceased patient for which the treating team cannot be held responsible and that the present complaint is not supported by any expert medical witness. On merits, it was stated that there are so many facts which are twisted and written out of context just to make them appear and proper evidence needs to be done as per Indian Evidence Act and there is no negligence, deficiency or unfair trade practice on the part of opposite party and opposite party is not liable to pay anything to the patient party. (Opposite party No.1 has stated regarding recorded videos and mentioned medical literatures alongwith judgments of appellate authority which may be read as part of this written reply). All other averments made in the complaint have been denied and lastly prayed for dismissal of complaint with cost.
4. Upon notice opposite party No.2 also appeared through their counsel and filed written reply by taking the preliminary objections that complainant has no cause of action and locus standi to file the present complaint; that there is no deficiency in services on the part of the insurance co.; that the policy was issued in favour of Harnish Randhawa for a period from 2 Nov. 2019 to 1 Nov. 2020 and the limit of the liability under the policy is of Rs.10,00,000/- and as such if any liability will be fixed in that case also the liability is only upto Rs.10,00,000/- and that too if it comes out that there is no breach of the terms and conditions of the policy; that till today the doctor is not proven guilty and as such the liability of insurance company is not come. The clause 4 of the policy provides for basis of assessment of claims which states as follows;
"The basis of assessment of claims shall be the legal liability as admitted by the insured with the prior written consent of the company or in terms of an order of the competent court of jurisdiction, which is binding on the insured, on the happening of events specified in the scope of cover, subject to compliance with the policy related terms and conditions under Part-II of the Schedule".
As such in the absence of legal liability being established against the insured and compliance of the policy terms and conditions, the coverage under the policy will not trigger and that if the doctor proven guilty, then the company will assess the claim as per above said clause and terms and conditions of the policy in case the court of competent jurisdiction passes an order against the insured, only in cases where the insured has complied with the policy terms and conditions the claim would be considered under the policy and the insurer would be in the position to determine coverage under the policy and rule out applicability of any exclusion mention in the policy. On merits, it was stated that no claim had ever been filed or no intimation had ever been given to the insurance company regarding hospitalization of Gurmeet Kaur and complainant may put strict proof of it. It was further stated that no documents had ever been provided to the insurance company. All other averments made in the complaint have been specifically denied and lastly prayed for dismissal of complaint.
5. To prove the case, counsel for the complainant had filed duly sworn affidavit of complainant Ex.CW-1/A alongwith copies of documents Ex.C1 to Ex.C34.
6. On the other hand counsel for the opposite party No.1 had filed affidavit of Dr.Harneesh Randhawa Ex.OP-1/A alongwith copies of documents Ex.OP-1 to Ex.OP-17 alongwith written statement.
7. Counsel for the opposite party No.2 had tendered into evidence affidavit of Divyam Suri authorized signatory Ex.OP-2/A alongwith copy of document Ex.OP-2/1 and closed the evidence on behalf of opposite party No.2.
8. Rejoinders filed by the complainant.
9. Written arguments filed by the opposite party No.1 but not filed by the complainant and opposite party No.2.
10. Counsel for the complainant has argued that mother of the complainant namely Gurmeet Kaur suffered from chest pain on 21.04.2020 and was taken to Dr. Ram Murti who had referred the mother of the complainant to Amritsar. It is further argued that complainant had taken his mother to the hospital of opposite party i.e. Randhawa Hospital Amritsar on 26.04.2020. It is further argued that on 26.04.2020 opposite party had without any diagnosis and test took the mother of the complainant to operation theater and received Rs.70,000/- from the complainant under force. It is further argued that complainant kept on waiting outside the operation theater and at about 3:30 PM it was disclosed by the opposite party that surgery of heart was successful and the success rate is 99%. It is further argued that heart surgery was performed by the opposite party without the knowledge and consent of the complainant. It is further argued that after operation the complainant was waiting for his mother to gain consciousness till 10 PM and on enquiry it was disclosed that the mother of the complainant has to remain in the hospital for 10 more days as her heart has become weak. It is further argued that patient remained unconscious till 30.04.2020 but opposite party never examined the patient. It is further argued that further amount of Rs.1,00,000/- was received by the opposite party from the complainant and thereafter it was disclosed that kidneys of the patient are not working and the patient is required to be put on ventilator and to conduct dialysis. It is further argued that complainant had requested the opposite party to refer the patient to PGI Chandigarh but opposite party did not exceed to his request and took the patient to Amandeep Hospital, Amritsar twice for dialysis. It is further argued that kidney problem occurred due to negligent treatment by the opposite party and ultimately mother of the complainant expired due to negligence of the opposite party. It is further argued that complainant is entitled to received Rs.10 Lakh as compensation on account of death of his mother and Rs.1,70,000/- as refund of fee deposited.
11. On the other hand counsel for the opposite party No.1 has argued that mother of the complainant suffered from chest pain on 21.04.2020 and was taken to Dr. Ram Murti at Gurdaspur and thereafter complainant had brought his mother to opposite party on 26.04.2020 for checkup. It is further argued that the patient was brought after delay of 5 days as the patient was under continuous chest pain from 21.04.2020 to 26.04.2020 and the complainant had not brought his mother to the opposite party's hospital in time inspite of fact that the complainant was fully aware that there was no cardiac super specialist hospital at Gurdaspur which resulted in death of patient due to heart and kidneys failure. It is further argued that cardiogenic shock caused compromised blood supply to brain, heart, liver and kidney. It is further argued that necessary tests were conducted in emergency room itself and sons of the patient were shown the blocked artery and were explained how the blockage will be removed and stent will be placed. It is further argued that survival rate was only 90% and death rate was 10% and the 90% survival rate does not mean that there will no long-term effect on born, liver and kidneys and overall health at such an advanced age, even when patient survives. The patient party agreed with the treatment plan after discussion and they were also given option to take the patient to IVY Hospital or other hospital and the said conversation was duly recorded in the videography (CD) attached with the file. It is further argued that opposite party is a qualified doctor and for kidney function qualified nephrologist performed dialysis after taking consent and patient died her natural death and succumbed to the life threatening illness caused by delay of 5 precious days. Counsel for the opposite party No.1 has relied upon judgments of Hon'ble Supreme Court of India in Jacob Mathew Vs. State of Punjab (2005) 6 SSC 1. Indian Medical Association Vs. V.P. Shantha, (1995) 6 SCC 657. Martin F. D'Souza Vs. Mohd. Ishfaq, (2009) 3 SCC 1. Ins. Malhotra (Ms) Vs. Dr. A Kriplani & others 2009(4) SCC705. State of Punjab Vs. Shiv Ram & Ors. AIR 2005 SC 3280. Kusum Sharma and Another Vs. Batra Hospital and Medical Research Centre and Others (2010) 3 SCC 480 and Dr. J.J. Merchant & Ors. Vs. Shrinath Chaturvedi (2002) 6 SCC 635. Counsel for the opposite party No.1 has also relied upon judgments of Hon'ble National Consumer Disputes Redressal Commission, New Delhi in Dr.Harkanwaljit Singh Saini Vs. Gurbax Singh and Anr. 2003;(I) CPJ 153 (NC). Smt.Devarakonda Surya Sesha Mani Versus Care Hospitals Institute Of Medical Sciences & 2 Others vide Consumer Case No.339 of 2014.
12. Counsel for the opposite party No.2 has argued that since no negligence on the part of opposite party No.1 is proved and since no claim has been lodged with the opposite party No.2 as such opposite party No.2 has no liability to pay any compensation to the complainant.
13. We have heard the Ld. counsels for the parties and gone through the record.
14. To prove his case complainant has placed on record his duly sworn affidavit Ex.CW-1/A, copies of treatment record and receipts of payments Ex.C1 to Ex.C29, CD Ex.C30, copy of death certificate Ex. C31, copy of legal notice Ex.C32, postal receipt Ex.C33 and reply to legal notice Ex.C34 whereas opposite party No.1 has placed on record affidavit of Dr.Harneesh Randhawa Ex.OP-1/A, copies of doctors orders and progress notes Ex.OP-1 to Ex.OP-9, copies of consent forms Ex.OP-10 to Ex.OP-17. Opposite party No.2 has placed on record affidavit of Divyam Suri authorized signatory Ex.OP-2/A and copy of professional indemnity Ex.OP-2/1.
15. It is admitted fact that mother of the complainant Smt.Gurmeet Kaur suffered chest pain on 21.04.2020 and remained under treatment of Dr. Ram Murti at Gurdaspur. It is further admitted fact that Smt.Gurmeet Kaur was taken to opposite party No.1 hospital on 26.04.2020. It is further admitted fact that Smt.Gurmeet Kaur expired in the hospital of opposite party No.1 during her treatment. The only issue for adjudication is whether the opposite party No.1 was negligent in treating the patient Smt.Gurmeet Kaur or caused her death and if issue No.1 is proved then to what amount of compensation complainant is entitled.
16. Perusal of file shows that although, the complainant has admitted that his mother was taken to Dr. Ram Murti at Gurdaspur regarding the chest pain but complainant has not placed on record any treatment record or diagnostic report as to what was the disease for which Smt.Gurmeet Kaur took treatment from Dr. Ram Murti from 21.04.2020 to 26.04.2020. The plea of the complainant is that opposite party No.1 had directly conducted the surgery on the patient without conducting any test and the complainant was not disclosed about the same and consent was not taken. However, perusal of consent form Ex.OP-11 shows that on 26.04.2020 at about 4:00 PM the complainant was explained in Punjabi that the veins of heart of the patient are blocked and are required to be opened with stent and there is danger to life of the patient during the treatment and complainant Harwinder Singh son had given consent for the treatment after understanding everything. We are unable to understand if everything was explained to the other son of the complainant namely Charanjit Singh Sidhu in Punjabi language vide Ex.OP-11 then why the complainant alleged that complainant was not disclosed about the operation and operation was directly conducted without their consent. Perusal of Ex.C12 consent form shows that Charanjit Singh Sidhu and complainant himself alongwith other relatives have given consent for centre lining on 28.04.2020 and thereafter on 29.04.2020 complainant and daughter Kamaljit had given consent for dialysis. Thereafter on 01.05.2020 vide Ex.OP-14 Charanjit Singh son of the complainant had again given consent for dialysis. Although, in the present case unfortunately Smt.Gurmeet Kaur could not survive inspite of having remained under treatment of opposite party No.1 but from the entire evidence complainant has failed to prove that as to what was the negligence on the part of opposite party No.1 on account of which patient Smt.Gurmeet Kaur was died. Perusal of history of the patient shows that 70 years old patient brought to the opposite party No.1 hospital with chest pain for the 4 days and thereafter the patient remained under continuous treatment of opposite party No.1 hospital and ultimately expired on 01.05.2020 at 11.50 PM and all the treatment carried out by the opposite party No.1 hospital was conducted with the prior consent of one or the other close relatives of the patient vide different consent forms Ex.OP-10 to Ex.OP-17 then how can the complainant say that the treatment was conducted by the doctor without explaining anything.
17. We have relied upon judgment of Hon'ble Supreme Court of India reported in 2021(3) Apex Court Judgments 253 (S.C.) in case titled as Dr.Harish Kumar Khurana. Vs. Joginder Singh & Ors. in which it has held as under:-
"(i) Medical negligence - In every cases where treatment is not successful or patient dies during surgery, it cannot be automatically assumed that medical professional was negligent - To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered - The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception".
18. We have also relied upon judgment of Hon'ble Supreme Court of India in Kusum Sharma and Another Vs. Batra Hospital and Medical Research Centre and Others (2010) 3 SCC 480 as per which certain principles and guidelines were laid down by the Hon'ble Supreme Court while dealing cases of medical negligence which are as under:-
"i) Negligence is the breach of a duty exercised 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.
ii) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
iii) The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
iv) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
v) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
vi) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
vii) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the 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.
viii) It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
ix) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
x) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
xi) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals".
From the perusal of record and after going through the above referred case law of the Hon'ble Supreme Court of India the complainant has failed to prove breach of duty exercised by the opposite party No.1 while giving treatment to his mother. We are further of the view that no sensible professional like or shall intentionally committed an act or omission which would result in loss or injury to the patient as the professional reputation of a doctor is at stake and a single failure may cause him dear in his carrier.
19. Further more perusal of file shows that present case is pending before this Commission since 05.03.2021 but complainant has not made any efforts to get the board of doctors constituted to arrive at conclusion that to prove that the opposite party No.1 doctor was negligent in performing his duty. In the present case there is no such report of any medical board consisting of medical experts to prove the negligence or deficiency in service on the part of opposite party No.1.
20. After going through the facts, evidence on record and case laws cited above we find that the complainant completely failed to prove the medical negligence and deficiency in service on the part of the opposite party No.1.
21. Accordingly, present complaint being without merit is ordered to be dismissed with no order as to costs.
22. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases.
23. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
March 05, 2024 Member.
*YP*
