Order by:
Smt.Priti Malhotra, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that on 10.07.2018, the complainant was admitted in emergency at KGM Bone Hospital Jalandhar with severe pain in lower back rediant to lower limbs and on 23.07.2018 the complainant was operated by Opposite Party No.1 for ‘Pivd Laminectomy L4, L5 S1’ and was discharged on 28.07.2018. Alleged that during the period of treatment, the complainant spent huge amount of Rs.1,03,915.92 NP on the treatment. After got operated from the Opposite Parties, upto 6 months, the complainant was on bed rest as per the advice of the Opposite Party No.1. During this period, the complainant has also taken medicine as per the prescription of Opposite Party No.1, but the complainant did not feel well, then he again approached Opposite Parties no.1 & 2 and they again started medicine of the complainant, but inspite of this, the complainant was not feeling well from the severe pain. Alleged that now other doctors suggested the complainant to get operated once again and due to which complainant is facing huge problems. The complainant served a legal notice upon Opposite Parties No.1 & 2, but to no effect. Alleged that due to such act and conduct of Opposite Parties No.1 & 2, the complainant suffered health and economic loss. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to make the genuine claim of the complainant.
b) To pay an amount of Rs.15,00,000/- as compensation on account of unfair trade practice, deficiency in service as well as harassment.
c) To pay an amount of Rs.21,000/- as litigation expenses.
d) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Parties No.1 & 2 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous. Averred that law does not require professionals to give guarantee or warranty with respect to the end results of the services rendered by them. What law requires is that the services rendered must not be sub-standard or below par. And the services rendered must be without any shortcomings. The end results are immaterial; the present complaint is not supported by any expert medical witness on behalf of the complainant; in this case no negligence (either in form of commission or omission) has been committed by the OP No.1 and OP No.2, nor any deficiency is there in providing medical services; this complaint is bad for non-arraignment and mis-arraignment of parties. Averred that the patient was admitted in the hospital of answering Opposite Party on 14.07.2018 with complaint of back pain radiating to both the lower limbs, pain increased on coughing, sneezing and on forward bending. He was diagnosed as case of Acute on chronic PIVD. He had got his MRI scan done on 8.06.2018 from Jaswal MRI and Imaging Centre Moga. The patient was thoroughly explained about the disease and its complications and possible results of treatment. He was explained about the treatment modalities viz. (1) conservative treatment (2) Surgery. The patient opted for conservative management. So, the patient was treated conservatively with medicines and physiotherapy, and was discharged on 15.07.2018. As per record, he was admitted on 21.07.2018 as an emergency with pain in lower back and radiating to both the lower limbs and the pain increased on coughing, sneezing and on forward bending. After thorough lab testing, cardiac check up, ECG, ECHO and cardiac assessment and fitness by medical specialist, preparation for operation was done. The patient and his attendants had been thoroughly told and explained about the possible risks and outcome of operation, and proper care and precautions after the operation. He was operated on 23.07.2018 under C-Arm image intensifier system. Laminectomy of L4-L5, L5-S1 and excision disc was done and excised disc was sent for biopsy examination. Wound was closed in layers and post operative period was uneventful. He was discharged on 28.07.2018 and was having no pain and was walking without support. Averred further that the patient came for check up on 2.08.2018 and dressing was done, physiotherapy done and exercises were explained. He was walking without pain and very happy with the treatment. He again visited the hospital on 11.08.2018 and stitches were removed, ASD done, exercises and physiotherapy done. He visited the hospital on 24.08.2018, 30.08.2018 and last time on 06.09.2018 and was pain free and walking without pain or support. In parawise reply, all other allegations made by complainant are denied and a prayer for dismissal of the complaint is made.
3. Opposite Party No.3 appeared through counsel and filed written reply taking preliminary objections, therein inter alia that the complaint is not maintainable; the complainant has not come to this Commission with clean hands. He has concealed, suppressed the material facts from this Commission. Averred that the complainant has filed a complaint against the answering opposite party no.3 bearing consumer complaint no. 4 of 2019 dated 11.01.2019 which was allowed by this Commission on 12.10.2021 regarding the same medical treatment/medical bills as alleged in present complaint. So, for not disclosing and concealing the fact regarding the previous litigation, the complaint of the complainant is liable to be dismissed with costs; the complainant is estopped by his own act and conduct. The complainant has earlier filed a consumer complaint no.4 of 2019 on the basis of medical bills and the same has been allowed and the answering opposite party no.3 has been directed to pay Rs.1,03,915.65NP to the complainant. The complainant has again filed the present complaint on the basis of same medical bills which has already been paid by the answering opposite party no.3 in the previous complaint no.4 of 2019. The complainant has not raised any fact of medical negligence by opposite party no.1 & 2 at the time of filing the earlier complaint. This shows that the present complaint is only an afterthought to harass the opposite parties and to abuse the process of law; the complainant has got no locus standi to file the present complaint against the answering opposite party; no cause of action arose to the complainant against the answering opposite; the complaint has been hopelessly barred by law of limitation.
Averred further that opposite party no.1 is insured with the answering opposite party vide insurance policy number 272200/48/2019/3194 for period 19.05.2018 to 18.05.2019 subject to insurance policy's terms and conditions on Claim Made Basis With Right to Defend. After that this policy was not renewed with the answering opposite party no.3. The incident was reported on 25.05.2023 after the expiry of the policy. As such, Opposite Party No.3 has no liability in the captioned case. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
4. Complainant has also filed replication to the written reply of Opposite Parties denying the objections raised by them in their written reply.
5. In order to prove his case, the complainant tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C60.
6. On the other hand, Opposite Parties tendered into evidence affidavits of Dr.Kulwant Singh as Ex.OP,2/1 to Ex.OP1,2/4 alongwith copies of documents Ex.OP1,2/5 to Ex.OP1,2/44. Whereas, Opposite Party No.3 tendered into evidence affidavit of Sh.Yash Paul, Manager Incharge, Legal Hub, Oriental Insurance Co. Ltd. Ex.OPs3/1 alongwith copies of documents Ex.OPs3/2 to Ex.OPs3/5.
7. We have heard the ld. counsel for the parties, gone through the written arguments submitted on behalf of the complainant and also gone through the record.
8. It is submitted by the counsel for the complainant that on 10.07.2018, complainant got admitted in emergency at KGM Bone Hospital Jalandhar with severe pain in lower back rediant to lower limbs and on 23.07.2018 the complainant was operated upon by Opposite Party No.1 for ‘Pivd Laminectomy L4, L5 S1’ and was discharged on 28.07.2018. Submitted further after being operated from Opposite Parties, the complainant was on bed rest as per the advice of the Opposite Party No.1. Further stated that during this period, the complainant had medicines as per the prescription of Opposite Party No.1, but the complainant did not feel well, then he again approached Opposite Parties No.1 & 2 and Opposite Party No.1 again started medicines of the complainant. Submitted further that inspite of taking medicines, Opposite Parties No.1 & 2 failed to cure the pain suffered by the complainant. It is further argued by the counsel for the complainant that due to deficiency in service rendered by the Opposite Parties complainant has suffered from pain persistently and now has to undergo revise surgery. It is argued by the counsel for the complainant that Opposite Parties failed to render service and thus liable for deficiency in service.
9. On the other hand, ld. counsel for the Opposite Parties No.1 & 2 contended that Opposite Party No.1 treated the patient (complainant in question) diligently with due care and skill. There was no complication of the surgery performed on the patient/complainant. Contended that the patient/complainant was admitted in the hospital in question on 14.07.2018 with complaint of back pain radiating to both the lower limbs, which allegedly increasing on coughing, sneezing and on forward bending on investigation. He was diagnosed as case of Acute on chronic PIVD. He had got his MRI scan done on 8.06.2018 from Jaswal MRI and Imaging Centre Moga. The patient/complainant was thoroughly explained about the disease and its complications and possible results of treatment. He was explained about the treatment modalities viz. (1) conservative treatment (2) Surgery. The patient opted for conservative management. So, the patient was treated conservatively with medicines and physiotherapy, and was discharged on 15.07.2018. The patient and his attendants had been thoroughly told and explained about the possible risks and outcome of operation, and proper care and precautions after the operation. He was operated on 23.07.2018 under C-Arm image intensifier system. Laminectomy of L4-L5, L5-S1 and excision disc was done and excised disc was sent for biopsy examination. Wound was closed in layers and post operative period was uneventful. He was discharged on 28.07.2018 and was having no pain and was walking without support. Contended further that the patient came for check up on 02.08.2018 and dressing was done, physiotherapy done and exercises were explained. He again visited the hospital on 11.08.2018 and stitches were removed, ASD done, exercises and physiotherapy done. Again he visited the hospital on 24.08.2018, 30.08.2018 and 06.09.2018 and was pain free and walking without pain or support. Hence, there is no deficiency or negligence on the part of Opposite Parties No.1 & 2.
10. Whereas, counsel for Opposite Party No.3 argued that the complainant has concealed the fact that he has filed a complaint against the answering opposite party no.3 bearing consumer complaint no.4 of 2019 dated 11.01.2019 which was allowed by this Commission on 12.10.2021 regarding the same medical treatment/medical bills as alleged in present complaint. The complainant has not raised any fact of medical negligence by opposite party no.1 & 2 at the time of filing the earlier complaint. Argued further that opposite party no.1 is insured with the answering opposite party vide insurance policy number 272200/48/2019/3194 for period 19.05.2018 to 18.05.2019 subject to insurance policy's terms and conditions on Claim Made Basis With Right to Defend. After that this policy was not renewed with Opposite Party No.3 and the incident was reported on 25.05.2023 after the expiry of the policy. As such, Opposite Party No.3 has no liability in the captioned case.
11. We have considered the rival contentions of ld. counsel for the parties and gone through the record.
12. It is not disputed that on 10.07.2018, complainant got admitted in emergency at KGM Bone Hospital Jalandhar with complaints of severe pain in lower back rediant to lower limbs and on 23.07.2018 the complainant was operated by Opposite Party No.1 for ‘Pivd Laminectomy L4, L5 S1’ and was discharged on 28.07.2018. It is also proved on record vide Ex.OP1, 2/39 that after operated upon by the Opposite Party No.1 the complainant was quite well complainant was discharged in satisfactory condition.
13. Inter alia the admitted facts, now the question arises as to whether Opposite Parties No.1 and 2 have been negligent in the instant case or not? In this regard, we shall have to see what is meant by negligence or medical negligence. Reference in this context can be made to the observations made in Jacob Matahew Vs. State of Punjab & Anr (2005) 6 SCC 1, decided on 05.08.2005 by Hon’ble Supreme Court, wherein Hon’ble Supreme Court has found to constitute medical negligence as follows:-
“48. (1) 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'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) 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.
The question of medical negligence also came up for hearing before the Hon’ble Apex Court in Kusam Sharma & Others. Vs. Batra Hospital & Medical Research Centre 2010 AIR (SC) 1050 wherein following principles were laid down that are to be considered while determining the charge of medical negligence:-
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.
Further in judgement of Jacob Matahew Vs. State of Punjab & Anr (2005) 6 SCC 1, decided on 05.08.2005, it has also been held by Hon’ble Supreme Court that
“As can be culled out from above, the three essential ingredients in determining an act of medical negligence are (1) a duty of care extended to the complainant, (2) breach of that duty of care, and (3) resulting damage, injury or harm caused to the complainant attributable to the said breach of duty, However, a medical practitioner will be held liable for negligence only in circumstances when their conduct falls below the standards of reasonably competent practitioner.”
The observations made by Hon’ble Supreme Court of India in case Jacob Matahew Vs. State of Punjab & Anr (2005) 6 SCC 1 again been relied upon in latest pronouncement of Hon’ble Supreme Court of India, in case Jyoti Devi Vs. Suket Hospital & Ors, II (2024) CPJ 57 (SC) decided on 23rd April, 2024.
14. In the light of the pronouncements as discussed above, we have to see that whether Opposite Parties No.1 & 2 failed to perform its duties with utmost care or Opposite Party No.1 was not qualified enough to perform the surgery or any harm/injury was caused to complainant due to the alleged negligence. After going through the record meticulously, we are of the considered opinion that we found no negligence attributable on the part of Opposite Party No.1 doctor. The burden of establishing negligence is on the complainant as a matter of fact and the complainant has failed to produce any evidence substantiating the aforesaid negligence. There is nothing on record to show that procedure conducted by Opposite Party No.1 Doctor was outdated and poor medical practice. It is not the allegations of the complainant that the Opposite Party No.1-Doctor was not well qualified or there was any breach of duty of care. Applying the principles of the judgements ‘supra’ to the facts of the present case, it becomes amply clear that Opposite Party No.1 has treated the complainant in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art and as such Opposite Parties No.1 and 2 cannot be guilty of the negligence. Not only that, no ingredient of negligence have either been pleaded nor any evidence has been brought forwarded by the complainant to prove any negligence allegedly made by Opposite Parties No.1 and 2 during the course of treatment. The complainant wants this District Consumer Commission to jump to the conclusion that Opposite Parties No.1 and 2 were guilty of the negligence simply because of the fact that desired result could not be achieved despite getting medical treatment as prescribed by Opposite Parties No.1 and 2. Here we are guided by the pronouncement of Hon’ble Supreme Court of India in case Dr. Mrs.Chanda Rani Akhouri V. Dr. M.A. Methusethupati, II (2022) CPJ 51 (SC), wherein Hon’ble Apex Court observed as under:-
“… a medical practitioner is not to be held liable simply because things went wrong from mischange or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of option. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
In Harish Kumar Khurana V. Joginder, II (2022) CPJ 43 (SC), Hon’ble Apex Court has also held as under:-
"It is necessary that the hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in unfortunate cases, though death may occur and if it is alleged to be due to medical negligence and a claim in that regard is made, it is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at a conclusion.
15. Factually also no negligence has been found as per the record made available by the complainant. The record transpires that complainant was admitted in the hospital of Opposite Parties with chief complaints of pain in lower back, Radiant to lower limbs and Opposite Party No.1 after thorough investigation and after completing all the legal as well medical formalities performed the requisite surgery on 23.07.2018 and he was discharged on 28.07.2018. Record further reveals that the post operation visits of the complainant to the hospital were required for further management viz removal of stitches and recommendation of physiotherapy etc. Accordingly, the complainant visited the hospital on 02.08.2018, 11.08.2018, 24.08.2018, 30.08.2018 and last time visited on 06.09.2018. Further in the prescription slip dated 11.08.2018 (Ex.OP1, 2/39) placed on record by Opposite Parties No.1 & 2, it is mentioned that Stitches removed; Wound perfectly healed; Patient walks without any pain and numbness in the legs and back, so it clear from the abovesaid prescription slip that on 11.08.2018, the complainant was quite well and was not suffering from any pain. The complainant lastly visited Opposite Parties No.1 & 2 on 06.09.2018 and there is no medical record establishing that complainant remained under medication thereafter for the alleged ailment for which surgery was performed.
16. It is on record that complainant get his MRI & x-ray done on 21.03.2022 and 24.02.2022 respectively and again get his x-ray & MRI tests done on 05.04.2023 and 06.04.2023 respectively as allegedly he again suffered pain. Record reveals that after getting all the tests conducted the complainant again visited Opposite Parties on 23.07.2022 and was advised back exercises and precautions. Complainant again on 05.04.2023 visited Vasal Hospital Pvt. Ltd., where he has been recommended for surgery. Only he suffered pain again and been suggested to surgery is not sufficient enough to allege that the Opposite Parties were negligent towards the complainant as he was quite well since his last visit to Opposite Parties on 06.09.2018 till 24.02.2022, when he got his MRI and X-ray conducted.
17. In view of the discussion above, we are of the considered view that the complainant has miserably failed to prove any negligence on the part of Opposite Parties No.1 and 2 nor there is any evidence regarding deficiency in service on the part of Opposite Parties No.1 and 2.
18. Hence, keeping in view the facts and circumstances of the case as well as supra judgements of Hon’ble Supreme Court of India, we find no merit in the complaint and the same stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
Announced in Open Commission
