Complaint No: 143 of 2019.
Date of Institution: 18.04.2019.
Date of order: 19.03.2024.
Santokh Singh Son of Piara Singh, resident of Village Lodhipur P.O. Khunda Tehsil and District Gurdaspur.
….........Complainant.
VERSUS
1. Dr. Kawaljit Singh, Proprietor K.J. Hospital, Batala Road, Gurdaspur. Pin Code – 143521.
2. Mokha Hospital, Batala Road, Amritsar, through its Proprietor / Authorized Signatory. Pin Code – 143001.
…….Respondents.
Complaint U/s 12 of Consumer Protection Act.
Present: For the Complainant: Sh.Sahil Kamboj, Advocate.
For the Opposite Parties: Sh.Pushkar Nanda, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Santokh Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Dr. Kawaljit Singh Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that on dated 13.11.2018, in the evening daughter of the complainant namely Randeep Kaur was got admitted at the OP No. 1 Hospital due to vomiting. The OP No. 1 conducted requisite medical tests of the daughter of complainant and on the same day she was discharged from the hospital after giving medical treatment. The OP No. 1 also gave medicines for three days to the daughter of the complainant for curing her. It is pleaded that at about 6.00 A.M. on dated 17.11.2018, daughter of the complainant again started vomiting. The complainant again took his daughter to the OP No. 1 hospital for treatment where she was admitted and again tests of the daughter of the complainant were conducted and she was also given medicines. Soon after taking medicines, daughter of the complainant raised hue and cry with severe pain and her condition became critical. It is further pleaded that the OP No.1 referred daughter of the complainant to Mokha Hospital Amritsar i.e. the OP No. 2. On reference of the OP No. 1, the complainant took his daughter to the OP No. 2 hospital. The doctors of the OP No. 2 hospital conducted various medical tests of daughter of the complainant namely Randeep Kaur. As per test report, it was disclosed to the complainant that wrong medicines have been given to his daughter by the OP No. 1 which has materially affected her health and now it is quite difficult to save her life at this stage. It is further pleaded that the complainant took his daughter to K.D. Hospital Amritsar at about 11.00 P.M. on the same day, where her condition became more worst and on the next day i.e. on dated 18.11.2018, unfortunately daughter of the complainant died due to wrong treatment / medicines given by the OP No. 1 and that too on account of sheer negligence and unfair medical practice on the part of the OP No. 1. Even the OP’s are not handing over complete medical file / medical test reports of deceased Randeep Kaur to the complainant inspite of his repeated requests and OP No. 2 who has association with the OP No. 1. It is further pleaded that in fact, the OP No. 1 has not treated the deceased in a scientific line and has not provided proper treatment to the deceased, and when her condition became more critical, referred her to the OP No. 2 hospital, as a result of which the deceased died. In this way the OP’s have committed medical deficiency as well as negligence and deficiency on the part of the OP’s. It is further pleaded that the complainant has suffered much more. The complainant and his family members have suffered physically, mentally as well as financially and this irreparable loss suffered by the complainant and his family members on account of negligence of the OP’s cannot be measured or compensated in terms of money. The OP’s are liable to compensate the complainant. The complainant is entitled to Rs.10 Lacs at least and the OP’s are liable to pay the same. It is further pleaded that the complainant served Registered A.D. legal Notice dated 23.01.2019 to the OP’s through his counsel calling upon the OP’s to supply the complete file with regard to the medical treatment along with its test reports etc. of the deceased Randeep Kaur within 15 days from the receipt of notice. The notice is duly served, but neither the OP’s supplied required documents, nor given any reply, till today. Due to this illegal act and conduct or medical negligence of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. So, there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to make payment of Rs.10,00,000/- (Rupees Ten Lacs Only) to the complainant on account of untimely death of daughter of the complainant caused by the opposite parties on account of medical deficiency, negligence in service and unfair trade practice on the part of the opposite parties. The opposite parties may also be directed to supply complete file with regard to the medical treatment alongwith its test reports etc. of the deceased Randeep Kaur. Litigation expenses to the tune of Rs.5,000/- may also be awarded in favour of the complainant after accepting this complaint, in the interest of justice.
3. Upon notice, the opposite parties No.1 and 2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that
- Written Reply on behalf of opposite party No. 1 is given below:-
It is pleaded that the complainant has not come with clean hands and has suppressed true facts relating to the matter in question and thus not entitled to any discretionary relief and as such the complaint is not maintainable in the present form and is liable to be dismissed. It is further pleaded that on dated 17.11.2018 the complainant visited the hospital of answering opposite party No. 1 with his daughter with the complaint of severe pain and after giving first aid and as she was in need of the services of a Nephrologist suffering from acute kidney problem and as such she was referred to a Nephrologist for further treatment. It is further pleaded that the complainant took his daughter to the hospital of opposite party No.2 of his own as the opposite party No. 2 is a known qualified Nephrologist and expert in treating such like patients and the complainant having such information had taken his daughter to his hospital and as per information received from the said hospital, the patient left his hospital against medical advice and did not have proper treatment which resulted as such. It is further pleaded that it is wrong that doctor of the opposite party No. 2 had ever told the complainant that any wrong medicine was given by answering opposite party No. 1 as alleged in this complaint. However, the complainant was fully explained about the condition of the patient by the answering opposite party No. 1 as well as by the opposite party No. 2. There was no fault with the treatment as required at that time given by the answering opposite party No. 1 on her visit to his hospital. It is further pleaded that the patient was admitted in the Hospital of the opposite party No. 2 on dated 17.11.2018, but after staying for some hours and when the treatment was going on the complainant took his daughter to the hospital of K.D. Hospital that too against the medical advice as per record maintained by the opposite party No. 2 and thus the complainant himself was negligent for the treatment of his daughter. The answering opposite party No. 1 is a qualified surgeon since 2000 and had been posted in various Government Hospitals and conducted thousands of surgeries with better results. Thus, the allegations of any wrong treatment by him are wrong and incorrect. It is further pleaded that there was no wrong treatment given by answering opposite party No. 1 as alleged. However, as the patient was suffering from acute Kidney Injury Liver dysfunction & Shock and in such like disease the services of a Nephrologist are required which were not available in the hospital of the answering opposite party No. 1 and as such the patient was advised to have services of Nephrologist. The answering opposite party No. 1 is not responsible for any loss of the complainant as alleged and there was no negligence in service on the part of the answering opposite party No. 1 in any manner as alleged. It is further pleaded that the complainant was handed over the papers relating to the treatment of the patient. There is no truth therein the complaint and the present complaint has been filed with intent to harass the answering opposite party No. 1 for this false litigation just to extract money from the answering opposite party No.1. It is further pleaded that as per experience and ability of the answering opposite party No. 1 the complainant was given proper and best available advice and was referred to Expert of the disease of the patient to Amritsar for better Treatment if any.
- Written Reply on behalf of opposite party No. 2 is given below:-
It is pleaded that the complainant has not come to the Hon’ble Court with clean hands and has suppressed true facts relating to the matter in question and thus he is not entitled to any discretionary relief and as such the complaint is not maintainable and is liable to be dismissed. It is further pleaded that the complainant is estopped from filing the present complaint by his own act and conduct as he himself is responsible for the death of his daughter as he left the hospital of the answering opposite party No. 2 against medical and even he refused to sign on the papers relating to discharge summary of the patient and took her of his own and thus the present complaint is not maintainable and is liable to be dismissed. It is further pleaded that on dated 17.11.2018 the complainant again visited the hospital of the opposite party No. 1 with the complaint of severe pain and after giving first aid as she was in need of the services of a Nephrologist suffering from acute kidney problem and as such she was referred to a Nephrologist for further treatment. It is further pleaded that the complainant took his daughter to the hospital of the answering opposite party No. 2 of his own. The complainant came to the hospital of the answering opposite party No. 2 of his own being the answering opposite party No. 2 a known qualified Nephrologist and expert in treating such like patients and the complainant having such information had taken his daughter to his hospital and when the treatment of the patient was going on, the patient left his hospital against medical advice and did not have proper treatment which resulted as such. It is further pleaded that it is wrong that doctor of the answering opposite party No. 2 had ever told the complainant that any wrong medicine was given by the opposite party No. 1 as alleged in this complaint. However, the complainant was fully explained about the condition of the patient by the answering opposite party No. 2 as well as by the opposite party No. 1. There was no fault with the treatment as required at that time given by the opposite party No. 1 on her visit to his hospital. It is further pleaded that the patient was admitted in the Hospital of the answering opposite party No. 2 on dated 17.11.2018, but after staying for some hours and when the treatment was going on the complainant took his daughter to the hospital of K.D. Hospital that too against the medical advice as per record maintained by the answering opposite party No. 2 and thus the complainant himself was negligent for the treatment of his daughter. The answering opposite party No. 2 is a qualified Nephrologist and having experience of treating such like diseases with his ability and qualification and experience. Thus, the allegations of any wrong treatment by him are wrong and incorrect. It is further pleaded that there was no wrong treatment given by the answering opposite party No. 2 as alleged. However, as the patient was suffering from acute Kidney Injury Liver dysfunction & Shock and in such like disease the services of a Nephrologist are required which were not available in the hospital of the opposite party No. 1 and as such the patient was advised to have services of Nephrologist. It is further pleaded that it is wrong that the answering opposite parties No. 1 and 2 have committed any medical negligence and medical deficiency as alleged in this complaint. The answering opposite party No. 2 is not responsible for any loss of the complainant as alleged and there was no negligence in service on the part of the answering opposite party No. 2 in any manner as alleged. It is further pleaded that the complainant was handed over the papers relating to the treatment of the patient. There is no truth therein the complaint and the present complaint has been filed with intent to harass the answering opposite party No. 2 for this false litigation just to extract money. It is further pleaded that as per experience and ability of the answering opposite party No. 2 the complainant was given proper and best available advice and was referred to Expert of the disease of the patient to Amritsar for better Treatment if any by the opposite party No. 1 and best available treatment for the disease was being given to the patient when the complainant took the patient to some other hospital without the consent and permission of the answering opposite party No. 2 and is responsible for the consequences thereof. It is further pleaded that the complaint of the complainant against the answering opposite parties’ No. 1 and 2 is not maintainable and the same is liable to be dismissed.
On merits, the opposite parties No.1 and 2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has filed Self-Attested affidavit of Santokh Singh, (Complainant) alongwith other documents as Ex.C-1 to Ex.C-6.
5. Learned counsel for the opposite parties No.1 and 2 has filed an affidavits of Dr. Kamaljit, (K.J. Hospital, Dhariwal, Gurdaspur i.e. opposite party No. 1) and Dr. P.S. Mokha, (M.D. (Medicine), D.M. (Nephrology) Mokha Hospital and Kidney Care Centre, Amritsar i.e. opposite party No. 2) alongwith other documents as Ex.OP-1 to Ex.OP-26 alongwith reply.
6. Rejoinder not filed by the complainant.
7. Written arguments not filed by both the parties.
8. Counsel for the complainant has argued that on 13.11.2018 daughter of the complainant was admitted in hospital of opposite party No.1 due to vomiting and required tests were conducted and was discharged after treatment. Again on 17.11.2018 daughter of the complainant started vomiting and was taken to opposite party No.1 hospital. Tests were conducted and medicines given but the health of daughter of the complainant deteriorated and opposite party No.1 had referred the daughter of the complainant to opposite party No.2 where tests were conducted and it was disclosed that opposite party No.1 has given wrong medicines. It is further argued that thereafter complainant took his daughter KD Hospital Amritsar at 11 P.M. on the same day but there was no improvement in the health and ultimately daughter of the complainant died on 18.11.2018. It is further argued that daughter of the complainant has died due to wrong medicines given by opposite party No.1 as complainant is entitled to receive Rs.10,00,000/- as compensation on account of medical negligence.
9. On the other hand counsel for the opposite party No.1 has argued that on 17.11.2018 when opposite party No.1 examined the daughter of the complainant she was in severe pain and was in need of the services of a nephrologist due to kidney problem and complainant had taken his daughter to opposite party No.2 who is a qualified nephrologist but the complainant had left the hospital of opposite party No.2 against advise and was taken to KD hospital. As such there is no deficiency in service on the part of the opposite party No.1.
10. Counsel for the opposite party No.2 has argued that complainant is himself responsible for the death of his daughter as complainant left the hospital of opposite party No.2 against advise and the patient remained with opposite party No.2 actually first time and thereafter taken to KD Hospital, Amritsar. Counsel for the opposite parties No.1 and 2 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.
11. We have heard the Ld. counsels for the parties and gone through the record.
12. To prove his case complainant has placed on record his affidavit, copy of legal notice Ex.C1, postal receipt Ex.C2, copy of death certificate Ex.C3, copy of Aadhaar Car Ex.C4, copy of receipt Ex.C5, copy of certificate Ex.C6 whereas opposite party No.1 has placed on record affidavit of Dr.Kamaljit and opposite party No.2 has placed on record affidavit of Dr.P.S.Mokha and copies of record regarding treatment Ex.OP-1 to Ex.OP-26.
13. Plea of the complainant is that on 13.11.2018 his daughter was having only vomiting and thereafter after receiving medicines the vomiting continued and thereafter again on 17.11.2018 daughter of the complainant was taken to opposite party No.1 hospital where wrong treatment was given is it self falsified plea.
14. From the facts and record placed on record by the opposite parties clearly shows that daughter of the complainant was suffering from acute kidney problem and the said fact has been intentionally concealed by the complainant in his complaint and affidavit.
15. Perusal of referral slip Ex.OP-6 clearly shows that opposite party No.1 had referred the patient to nephrologist on 17.11.2018 and as per Ex.OP-1 the patient was taken to some other hospital against medical advise and complainant has failed to place on record any treatment record or opinion of KD Hospital, Amritsar that wrong treatment was given by the opposite party No.1 and 2 which resulted in the death of Randeep Kaur. Moreover, there is no expert report of board of doctors to prove this fact that the patient died due to negligence of opposite parties No.1 and 2 or that the course of treatment adopted by opposite parties No.1 and 2 was not correct course as per medical science. Perusal of file shows that even no effort was made by the complainant to move application for constituting of board of doctors. As such perusal of record on file shows that there is no deficiency in service or negligence in treatment on the part of the opposite parties. As such complainant has failed to prove deficiency in service on the part of the opposite parties No.1 and 2.
16. 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".
17. 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".
18. 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 parties No.1and 2.
19. Accordingly complaint being without merit is ordered to be dismissed with no order as to costs.
20. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
21. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
March 19, 2024 Member.
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