FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.331 OF 2011
Date of Institution: 17.02.2011
Date of Decision: 08.04.2015
1 Bipan Kumar R/o Gali No.11/4, Partap Nagar. Bathinda
2. Bhali Ram R/o Guru Nank Pura Mohalla Gurudwara Sweet Dhamaka House, Bathinda.
3. Ashok Kumar R/o Street No.6, Ajit Road, Bathinda.
4. Bhushan Kumar R/o Gita Bhawan Wali Gali, Raman Mandi, All sons of Late Kaushalya Devi and Jawahar Lal
5. Jawahar Lal S/o Manga Ram R/o Gali Nao.11/4, Near Shaheed Bhagat Singh School, Partap Nagar, Bathinda.
…..Appellant/Complainants
Versus
1 Dr. J.J. Singh, Lifeline Hospital, Opposite St. Xavier Convent School, Power House Road, Bathinda
2. Lifeline Hospital, Opposite St.Xavier Convent School, Power House Road, Bathinda through its Proprietor/MD/Partner.
…..Respondent/Opposite Parties
First Appeal against order dated 15.12.2010 passed by the District Consumer Disputes Redressal Forum, Bathinda
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member
Present:-
For the appellant : Sh. P.S Mirpur, Advocate.
For the respondent : Sh.Rahul Sharma, Advocate
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J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellants (the complainants in the complaint) have directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 15.12.2010 District Forum Bathinda, dismissing the complaint of the complainant with no order as to costs. The instant appeal has been preferred against the same by the complainants now appellants.
2. The complainants have filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that Kaushalya Devi, since deceased, was mother of the complainant no.1 to 4 and complainant no.5 is husband of deceased Kaushalya Devi. The above Kaushalya Devi since deceased was patient of diabetic and was under the treatment of Dr. Mohan Lal Garg Nursing Home Bathinda and she was admitted in the hospital with the complaint of vomiting since 24.04.2008 because she was not passing urine. Dr. Mohan Lal Garg admitted her in his clinic by conducting certain tests like ECG, Blood Test, S.Cretinine, which was 7 mg and blood sugar which was 320 mg. She was further referred by Dr. Mohan Lal Garg for further treatment. Kaushalya Devi was admitted with the Ops on 24.04.2008 till 26.04.2008 as indoor patient. It is duty of the professional doctor to diagnose the problem before entering on the treatment for providing standard treatment to the patient. The OP No.1 gave assurance to the husband of the Kaushalya Devi that everything would be all right and she would improve her condition within days and got Rs.20,000/- as fees for the treatment, besides the charges of the medicines and tests. OP No.1 started treatment to Kaushalya Devi and kidney test was conducted on 25.04.2008, which was 7.6 and on 26.4.2008 it was 7.5 mg. The blood sugar was 166 random on 24.04.2008 and 346 on 25.04.2008 and 386 on 26.4.2008. The condition of Kaushalya Devi deteriorated instead of improving, as her blood sugar level was increasing constantly. The OPs referred patient Kaushalya Devi to get her ultrasound report from Dr. Indu Bansal of Satyam Scan Center and she conducted the ultrasound on 25.04.2008 on her and found that Kaushalya Devi was found having a calculus of 9-10 mm in the lower ureter and report was sent to Dr. J.S. Singh for further treatment. The OPs did not provide any treatment of the calculus, despite acute pain in the abdomen of the patient. This fact was also mentioned in the discharge card of the DMC during the admission of patient and patient was having a full of faecal matter in her abdomen, which was not managed by the OPs. The OPs did not provide the dialysis to the patient to improve her condition of the kidney. The condition of the Kaushalya Devi did not improve even catheter was put in and even DJ stent was also put in. The OPs gave false assurance and ultimately discharged the patient Kaushalya Devi in a critical condition. The OPs concealed all the medical record of the deceased Kaushalya Devi due to sheer negligence on their part. Kaushalya Devi was thereafter taken to DMC Ludhiana and was got admitted on 27.04.2008 and remained there till 06.05.2008. She was diagnosed as Diabetes Mellitus Type 2. Nephropathy with Ac on CRF with DJ Stenting was done on 25.04.2008. The history and examination recorded by the treating doctor, as A/W CC vomiting 5-6 days, urine o/p 3-4 days, not passage of stool for the last three days. The complainant spent Rs.5 lacs on the treatment of Kaushalya Devi due to utter negligence of the OPs and OPs have not provided the treatment to Kaushalya Devi and her condition deteriorated therewith. Kaushalya Devi again admitted in DMC at Ludhiana on 14.07.2009 and remained there till 21.07.2009 and thereafter got the treatment from Dr. Mahender Singh near Pukhraj Cinema Bathinda where she died on 31.07.2009 in the hospital of Dr. Mahender Singh. Previously complaint for negligence of Ops was also filed by Kaushalya Devi since deceased herself during her lifetime on 13.01.2009, which was dismissed on 19.06.2009, when the case was fixed for evidence of the complainant. The complainants being legal heirs of the Kaushalya Devi, filed the subsequent present complaint thereafter against the OPs. The complainants have, thus, filed the present complaint U/s 12 of the Consumer Protection Act directing the OPs to pay the compensation of Rs.14 lacs for their medical negligence, Rs.5 lacs for the treatment incurred by the complainant at DMC Hospital Ludhiana on Kaushalya Devi and Rs.20,000/- as refund of the fee with 18% interest therefrom.
3. Upon notice, Ops appeared and filed written reply raising preliminary objections that no medical expert opinion has been taken in this case by the complainant to prove any medical negligence on the part of the OPs, which is essential to prove, as per law laid down by Apex Court in case Martin F Dsouza Vs.Mohd. Ishfaq., in Civil Appeal No.3541 of 2002. The complainants have totally failed to establish how the OP No.1 and 2 are negligent, as no medical literature has been placed on record to point out any medical negligence of the OPs in this case. Medical negligence or deficiency in service on the part of the OPs was seriously denied by the OPs in this case. The complainant was alleged by OPs to be an abuse of process of law only. The complaint of the complainants has been filed just to extract the money of compensation from the OPs unauthorizedly. The complaint is alleged to be bad for non-joinder of the necessary parties. It was further averred that as a matter of fact, if benefits of treatment have to go to the patient, the patient was also to suffer the complications and untoward effects thereof. OP No.1 used his best level and highest degree of skill, care and knowledge to provide the best treatment to Kaushalya Devi. The treating doctor cannot avoid any inherent complication in the patient, which are basic ingredients either of disease pathology itself or treatment procedure, about which the complainants were well informed and were well in knowledge also. Kaushalya Devi was properly treated by OP No.1 as detailed in medical text-books and journals. It was further averred by OPs that OP No.1 is qualified Nephrologist in Bathinda and has a well functioning dialysis unit having well trained and qualified staff as well. OP No.1 did his MBBS in the year 1991 and MD (Medicine) from Government Medical College, Patiala in 1997 and further his DNB (Nephrology) from National Board of New Delhi in 2000. It was further averred that Kaushalya Devi was 70 years old, who suffered from disease of diabetes for the last many years. The patient Kaushalya Devi herself stated that she was suffering from pain in lower abdomen off and on as well as pus in urine for which, she mostly took self-medication only. The patient was admitted in the OP No.2 hospital at 11.30 PM on 24.04.2008 as she was referred by Dr.M.L Garg Senior physician. OP No.1 investigated her diligently, prudently with due care and caution and found that she was overall stable but her blood pressure was low and treatment in the form of dopamine infusion to her was started. The patient was also given IV antibiotics and other symptomatic treatment. Overnight, the patient remained uneventful. She was properly examined and investigated with due care and caution, as per the prescribed norms of general practice, as specifically/applicable to the case in the prevailing conditions, which are well prescribed/mentioned in the textbooks and journals of the subject. On 25.04.2008, due to decreased urine output, pus in urine, pain in the abdomen and underlying diabetes, an ultrasonography was advised for Kaushalya Devi. But due to the dilly-dallying attitude of the patient's attendants, Ultrasonography could be done on 1.00 PM only, which revealed obstruction to her urinary passages and it was decided to bypass the obstruction by passing a DJ stent. This is the standard medical practice, which is the standard procedure as prescribed in the medical textbooks and journals of the subject. The patient was successfully stented at 6.00 PM and she remained uneventful in the night as well. On 26.04.2008 due to failure of kidneys to produce urine, despite the removal of obstruction, the patient Kaushalya Devi was advised dialysis, but the patient and attendants declined it and rather shifted to her to DMC Ludhiana. It was further averred that patient was treated diligently, prudently in a cautious manner with due care. The OPs denied any medical negligence on their part or any deficiency in service and, thus, prayed for dismissal of the present complaint.
4. The complainant tendered in evidence the affidavit of Bipan Kumar Ex.C-1, copy of Discharge Summary Ex.C-2, copy of Summary & Progress Report of Garg Nursing Home Ex.C-3, copy of death certificate of Kaushalya Devi, copy of Haematology Report of Kaushalya Devi, copies of laboratory tests Ex.C-6 to Ex.C-7, copy of Discharge Slip of Dr. Mohinder Singh Hospital Ex.C-8, copy of discharge summary of DMC Ludhiana Ex.C-9, copy of referral slip by Dr.J.S Singh Ex.C-10, copy of letter dated 25.04.2008 Ex.C-11, copy of document of Life Line Hospital Ex.C-12, copy of additional affidavit of Dr. J.J. Singh, Life Line Hospital Ex.C-13, copy of discharge slip of Garg Nursing Home Ex.C-14, copies of laboratories tests of Kaushalya Devi from Life Line Clinical Laboratory Ex.C-15 to Ex.C-18. As against it, OPs tendered in evidence affidavit of Dr. J.J Singh Ex.R-1, copy of document Ex.R-2, copies of degree of medicines Ex.R-3 to Ex.R-4, copy of insurance policy Ex.R-5, affidavit of Amar Singh, Senior Divisional Manager Ex.R-6 and copy of certificate Ex.R-7 , affidavit of Dr. J.S. Singh dated 23.09.2010 Ex.R-8. On conclusion of evidence and arguments, the District Forum, Bathinda dismissed the complaint of the complainant by virtue of order dated 15.12.2010 under challenge in this case. Dissatisfied with the order of the District Forum, Bathinda the instant appeal has been preferred against the same by the complainants now appellants.
5. We have heard learned counsel for the parties and have also examined the record of the case carefully. The complainants now appellants have also tendered the previous order of the District Forum dismissing their previous complaint on the same cause of action. The evidence has been produced on the record by both the parties and we have to examine the evidence on the record to find out if any medical negligence or deficiency in service on the part of the OPs has been proved in this case by the complainant or not. The versions of the complainant contained in the complaint, as well as embodied in the written statement of the OPs have been duly considered by us on the record. The affidavit of Bipan Kumar complainant Ex.C-1 is on the record. This affidavit is in support of averments, as pleaded in the complaint. Ex.C-2 is the discharge summary of DMC Hospital Ludhiana. We have examined the discharge summary issued by DMC Ludhiana on 06.05.2008 of Kaushalya Devi. It records as under :-
"the patient was admitted with above mentioned complaints was managed with conservative treatment. All routine investigations were done. During hospital stay three HD done. Urology consultation was taken for AV Fistula. AV Fistula mode and LA on 05.05.2008. Now patient is being discharged in stable condition."
6. From perusal of the discharge summary Ex.C-2, it is proved that patient was admitted in the above hospital and she was managed with conservative treatment. All routine investigation was done. Urology consultation was taken for AV Fistula made on 5.5.08 and patient was discharged in a stable condition therefrom. From perusal of discharge summary Ex.C-2, we are unable to find out if it records any medical negligence on the part of the OPs in this case. It is not set out on the discharge summary Ex.C-2 as to in which way the OPs were negligent medically in treating the patient. In history and examination on the back leaf of discharge summary Ex.C-2, it is recorded that vomiting was from last 5-6 days , urine output for the last 3-4 days and no passage of stools for 3 days. The patient took treatment but her condition did not improve. Ex.C-3 is summary and progress report of Garg Nursing Home, it has recorded that patient was treated on the conventional line of treatment and given the benefit of IV fluid injections dopamine and in normal saline. She was referred to Dr. J.J Singh Nephrologists for dialysis. Ex.C-4 is death certificate of Kaushalya Devi and date of death is 31.07.2009, Ex.C-5 is Haematology Report of Kaushalya Devi dated 30.07.2009 and her blood urea is 160 mg%, which was abnormal and creatinine level was 7.4 mg% , which was also abnormal. They indicated that there was serious disorder with her kidney otherwise, the blood and urine level would not have arisen to that extent. Ex.C-6 is the laboratory report dated 30.07.2009 and sodium was passing in her urine as per this report, Ex.C-7 is the laboratory report dated 30.7.09 and there were pus cells in her urine, which indicated that there was urine problem due to disordered kidney of the patient. Discharge slip of the Dr. Mohinder Singh Hospital and Dialysis Center Ex.C-8 is on the record. Ex.C-10 is the treatment record of DMC Hospital Ludhiana. Ex.C-11 is the Ultrasound Abdomen report of Kaushalya Devi proving that there was Lt. Ureteric Calculus with Lt Renal Obstructive uropathy B/L Renal Medical Disease. Laboratory report is Ex.C-12 dated 26.04.2008 and affidavit of Bipan Kumar Ex.C-1 is on the record. Similarly, reference slip of Dr. Mohal Lal Garg is Ex.C-14, Life Line Clinical Laboratory Report Ex.C-15 to Ex.C-18 on the record.
7. The OPs tendered in evidence the affidavit of Dr. J.J Singh Ex.R-1 on the record. It is sworn in it that he is qualified doctor and he provided standard care treatment to the complainant to the best of his knowledge and belief. Ex.R-2 is the history recorded of the complainant by the OPs, Ex.R-3 is Degree of Medicines to OPs by Punjabi University Patiala of 16.12.1997. Ex.R-4 is degree of Medicine to OP by Punjabi University Patiala of 3.05.1993 proving that OPs were qualified doctors. We form this conclusion after considering the entire record on the file and hearing the respective submissions of counsel for the parties that OP No,.1 is a qualified doctor and he holds degree in medicines and he stated in his written version, that he provided standard care treatment to the patient Kaushalya Devi in this case. It is for the complainant to prove the medical negligence of the treating doctor by discharging the initial onus placed on the complainant and no expert witness has been examined by the complainant to prove any medical negligence of the OPs in this case. There is mere submission of the complainant that OPs were negligent in providing the treatment to Kaushalya Devi. It is not the case that OP No.1 was not a qualified doctor and lacked any expertise in treating the patient. The OP No.1 has taken plea in the written version that he prescribed the standard treatment to Kaushalya Devi. From perusal of the record, we find that kidney of Kaushalya Devi, who was aged and diabetic patient was not in normal condition. She was suffering from kidney problem as there was obstruction in passing urine and stools. Standard care treatment was provided to her for this treatment. The counsel for the complainant could not cite any medical literature on the record to the contrary. It is not case of the complainant that OP No.1 was not a qualified doctor in allopathic treatment at all. The counsel for the complainant now appellants specifically did not point out as to on what points OPs were negligent in treating the patient Kaushalya Devi in this case. The doctor can only treat the patient and he can never offer any guarantee to the patient to cure him completely of the ailment. When the patient has been admitted with OP, who was duly qualified doctor and he provided standard care treatment to Kaushayla Devi. Even no doctor has been examined from DMC Ludhiana by the complainant to establish this point as to on what point, the OP was negligent in this case in treating Kaushayla Devi. We are unable to find any applicability of the principle of res ipsa liquitor in this case proving any medical negligence on the part of the OPs or any deficiency in service on the part of the OPs in this case. We find that complainant has failed to establish this fact on the record that Kaushalya Devi was not properly treated by the OPs. We have already observed that doctor can treat the patient at the most and can never give guarantee to completely cure the patient from any ailment. The OPs conducted tests from time to time of Kaushalya Devi and also put the stent, which was the standard practice for passing of urine by removing the obstruction. We do not find any case of medical negligence on the part of the OPs in this case. We are in complete agreement with the findings of the District Forum that the complainant could not establish any medical negligence or deficiency in service on the part of the OPs by any cogent evidence.
8. Secondly, we find that Kaushayla Devi filed the complaint on the same cause of action during her lifetime against OPs. This fact is admitted by the complainant in para no.15 of the complaint that Kaushalya Devi withdrew her complaint during her lifetime when it was posted at the stage of evidence. The instant complaint has been filed on the same cause of action by the complainants as legal heirs of Kaushalya Devi. The complainants have also stepped into the shoes of the Kaushalya Devi and new cause of action could not be available to the complainant from Kaushalaya Devi. The complainants could only found this complaint on the same cause of action, which was already available to Kaushayla Devi during her lifetime. No permission was granted by the District Forum to file the fresh complaint on the same cause of action. The second complaint on the same cause of action is not maintainable in our considered view under Consumer Protection Act 1986. The instant complaint also does not lie, as it is not maintainable because no permission was granted by the District Forum concerned to permit the complainant to file the fresh complaint on the same cause of action, which was available to Kaushlya Devi, the predecessor- in interest of the complainant. The complaint of the complainants merits dismissal even on this score as well.
9. As a result of our above discussion, we do not find any merit in this appeal, as put in by the complainant and same is hereby dismissed.
10. Arguments in this appeal were heard on 01.04.2015 and the order was reserved. Now the order be communicated to the parties.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(VINOD KUMAR GUPTA)
MEMBER
April 8 2015.
(ravi) (Refer to reporter J.S Klar)
Presiding Judicial Member
