Ms. Swati Katiyar filed a consumer case on 07 Feb 2018 against Dr. Madhu Ahuja in the North East Consumer Court. The case no is CC/75/2015 and the judgment uploaded on 08 Mar 2018.
Delhi
North East
CC/75/2015
Ms. Swati Katiyar - Complainant(s)
Versus
Dr. Madhu Ahuja - Opp.Party(s)
07 Feb 2018
ORDER
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST
The case of the complainant is that she is a judicial officer employed under Delhi Judicial Services (DJS) and is covered issued under Delhi Government Employees Health Scheme (DGEHS) vide Card No. 146329. OP1 i.e. Dr Madhu Ahuja is the practicing Gynaecologist working under the control of OP2 i.e. Max Balaji Hospital. The complainant stated that in September 2013, on suffering from urinary infection, the complainant had contacted OP1 on 12.09.2013 at OP2 hospital apprising OP1 that the complainant is a judicial officer then posted at Dwarka Courts, New Delhi as Metropolitan Magistrate. The complainant was treated under UID No. 410950 by OP1 and her problem was cured to the satisfaction of the complainant. On conceiving in the month of December 2013, the complainant contacted OP1 on 12.01.2014 at her private clinic as well as at OP2 hospital and was attended by OP1 from January 2014 till the time of delivery in August 2014 on various dates on monthly basis where she paid the fees for the visits and tests referred by OP1. The complainant had further stated that on nearing her delivery date, on visit to OP1 on 25.08.2014, the complainant was advised by OP1 to get herself admitted at OP2 for delivery on 28.08.2014, referral for treatment whereof the complainant had already obtained from Medical Officer-in-charge, GNCT Dispensary Karkardoma Courts Complex on 23.07.2014. However unfortunate turn of events happened on 28.08.2014 when the complainant alongwith her husband contacted OP1 at OP2 for admission and informed OP1 that she is covered under DGEHS which facility was available with OP2 by virtue of featuring in the list of empanelled private hospitals / diagnostic centers under DGEHS in Delhi NCR. But the OP1 advised the complainant to be admitted under her in the labour room as private patient on the pretext that OP1 does not entertain patients covered under DGEHS scheme for delivery as OP1 will not get any extra fee for operation which she otherwise would get from private patient not covered under DGEHS scheme. The complainant was shocked to see such uncalled behavior of OP1 and contacted management staff of OP2 which apprised her that it was a duty of concerned doctor, OP1 in this case to undertake delivery of the complainant regardless of the fact whether the patient was covered under DGEHS or not. When the complainant contacted OP1 and requested OP1 to admit her under DGEHS scheme the OP1 got infuriated and started abusing the complainant in filthy language and demeaned her by reducing her status to that of a peon despite knowledge of complainant being a judicial officer and insulting the complainant by called her money minded and miserly who cannot afford private treatment. The complainant also stated that the OP1 flatly refused to admit her in the hospital for delivery under DGEHS scheme and crossed / stuck off the remark / advise on OPD prescription card where it was written “admit under me in labour” and asked her to get herself admitted on her own in the labour room and that any doctor on duty as per roster will attend to her but not OP1. The complainant has further stated that in order to coerce the complainant to seek treatment as private patient, the OP1 also threatened the complainant and scared her of complications in the delivery at that advanced/ fixed stage of pregnancy because of nuchal cord being around baby’s neck. Given the advanced stage of pregnancy caesarean the complainant had no option but to get admitted and undergo delivery as a private patient under OP1 for which the complainant was made to pay Rs. 84,441.09 Paise towards caesarean delivery expenses and Rs. 16,433.51 Paise towards baby care package which she otherwise would not have been required to pay had she been admitted under DGEHS scheme under which she was covered. Therefore, the complainant was constrained to serve upon the OPs legal notice dated 24.11.2014 seeking Rs. 20 Lacs for suffering mental agony, insults, misbehavior, malpractice, defamatory imputations, excess amount charged and deficiency in service which the OP1 replied to vide reply dated 12.01.2015 and OP2 replied to vide reply dated 19.01.2015 dismissing all the allegations leveled against them by the complainant. Lastly, the complainant has preferred the present complaint against the OPs holding them jointly and severally liable for ‘unfair trade practice’ and seeking damages against the OPs them to the tune of Rs. 20 Lacs by way of prayer to this Forum.
Notice was issued to both the OPs and written statements were filed by them. In the written statement filed by the OP1, the OP1 took the preliminary objection that the complainant has failed to explain negligence or deficiency in service qua the OP1 and the complaint was bad for non arraignment / mis-arrangement of parties in as much as OP1 was insured under United India Insurance co. ltd through its professional indemnity policy number 041200/46/12/35/00001511 w.e.f 12.02.2013 to 11.02.2014 which was a necessary party but was not impleaded. The OP1 further took the defence that she is a well qualified reputed and respected doctor and had no rule to play in the admission process which is between the complainant and OP2 and all DGEHS patient are looked after by OP1 and her team and diligence, prudence, due care and caution was exercised by OP1 in treating the complainant and therefore no negligence from her side. The OP1 further stated that she was working in two capacities firstly as independent consultant gynecologist and secondly she along with her team looked after patients admitted under DGEHS. The OP1 denied any medical negligence, deceptive practice, deficiency in service or unfair trade practice attributed to her by the complainant and therefore not liable to pay any compensation to the complainant in view thereof.
Written statement was filed by OP2 in which OP2 stated that the hospital adheres to most stringent quality assurance principle and is equipped with latest technologically advanced medical gadgets, fully equipped critical care facilities backed by state-of-the-art medical equipments and staffed by highly qualified and experienced medical, nursing and paramedic staff who serve humanity and maintain utmost respect for human life and practice their medical profession with conscience and dignity to the best of their ability and judgment. The OP2 further stated that OP1 was a highly qualified and well experienced senior consultant, having MBBS, MRCOG, DNB and MD degrees from reputed institutions and has consecrated her life for the benefit of sick. The OP2 took the primary defence that the grievance, if any was between the complainant and OP1 and no cause of action or relief has accrued against OP2 in as much as OP1 was not an employee of OP2 and she was an independent medico not drawing any salary from OP2 and there was no relationship of master servant between the OPs and whatever was done by OP1 was done by her in her own capacity as independent medical professional and the present complaint was filed by the complainant against OP2 without any basis/cause/fault/default/breach on the part of OP2. The OP2 further took the defence that the complainant never submitted or produced any copy of DGEHS card before the OP2 and therefore it is incorrect on part of the complainant to allege that she was entitled to avail the facilities at OP2 under the DGEHS scheme. The OP2 further took the defence that the complainant was not an emergency case and was not referred by MO/CMO in charge of Delhi Government Dispensary / hospital nor any such referral was produced at the time of admission by the complainant. The OP2 therefore disputed the filing of annexure C5 and C6 by the complainant which were the referral letter vide OPD No. 17055 dated 23.07.2014 from Department of Health Services Government of Delhi and permission/authorization slip for treatment in private empanelled/ diagnostic hospital dated 23.07.2014 in favor of the complainant on grounds that even the same were never deposited/submitted by the complainant with the OP2 hospital. The OP2 reiterated that OP1 is an independent medico and a visiting consultant at OP2 and not under the control of OP2. The OP2 further took the plea that the complainant was a regular patient of OP1 and had been contacting / visiting OP1 regularly at her residence and private clinic for consultation and treatment which is unrelated to OP2. Further the OP2 averred that the complainant had no grievance with respect to her earlier treatment as UID No. 410950 when she was treated to her satisfaction by OP1. The OP2 further stated that the factum of complainant being a judicial officer was known to OP1 and not OP2 till the filing of the present case and any advice given by OP1 to the complainant to be admitted under her as private patient on pretext of OP1 not entertaining DGEHS covered patient for delivery does not relate / apply to OP2. The OP2 also denied the allegation levelled by the complainant that on contacting the management staff and reception of OP2 the complainant was apprised that OP1 was duty bound to undertake the delivery of the complainant and OP2 has also denied knowledge of use of filthy and or defamatory language used by OP1 for the complainant. The OP2 further took the plea of denial for want of knowledge that the OP1 refused to admit the complainant for delivery in OP2 under DGEHS scheme and / or crossing the remarks/advise on the OPD prescription. The OP2 further submitted that there is no breach of any of the duties by OP2 and the grievance of the complainant has no correlation with OP2 and has denied that complainant was compelled to pay Rs. 84,441.09 Paise and 16,433.51 Paise by the OP2 towards caesarean delivery expenses and baby care package. The OP2 further took the defence that no unfair trade practice, compulsion to make excess payment for delivery charges, mental or physical torture, filthy or defamatory language negligence and or deficiency, mental of physical or financial loss could be attributed to OP2 by the complainant and therefore there is absolutely no liability jointly and or severally on the part of the OP2 to pay any compensation to the complainant. The OP2 further stated to the legal notice dated 24.11.2014 issued by the complainant to the OP2, reply dated 19.01.2015 was sent by OP2 rebutting the allegation therein. Lastly the OP2 stated that no cause of action has arisen in favour of the complainant against OP2 and prayed for dismissal of the present complaint as the complainant is not entitled to any compensation or litigation expenses or interest as claimed in this baseless complaint.
On the basis of the written statement of OP1 wherein OP1 stated her being insured with United India Insurance Co. through professional indemnity policy, an application was filed by OP1 for impleadment of United India Insurance Company as a necessary party which was allowed by this Forum in accordance with the judgment passed by Hon’ble SCDRC in FA 924 of 2008 in case title Dr. Mohit Garg Vs Manju Gupta wherein the Hon’ble SCDRC Delhi had held that such an application shall be allowed if appellant / Doctor is insured with insurance company and the insurance company become the necessary party for the reason that doctor of the hospital insure themselves for the medical peril and also for the reason to avoid multiplicity of litigation. The reply to the application was filed by the complainant opposing the same on ground that the insurance policy does not indemnify the doctor for her illegal and unfair trade practice insult to patient, compulsion to pay and threatening tactics.
Rejoinder to the written statement was filed by the complainant to the written statement filed by OP1 and OP2 in rebuttal to the defence taken by the OPs in their written statements. The complainant stated that OP1 was attending to her from 12.09.2013 to 31.08.2014 and on her instructions the complainant was to be admitted in the labour room of OP2 on 28.08.2014 and therefore she had a definite role in admission process. Further the complainant rebutted that OP1 cannot work as an independent consultant gynecologist from the premises of OP2. The complainant further submitted that since OP1 was the attending doctor to the complainant since the beginning none but she herself was duty bound towards the complainant for delivery of her child as informed by receptionist staff of OP2. The complainant further stated that the OP1 was all along aware that the complainant is a judicial officer covered under DGEHS scheme which is clear from the endorsement “working Dwarka” made by OP1 on the first page of first prescription slip dated 12.09.2013 which was Annexure C3 filed by the complainant as she was posted at MM at Dwarka Courts at the relevant time and knowingly the OP1 abused and insulted the complainant comparing her with peon and compelled her to get herself admitted under her as a private patient. The complainant submitted that the complainant was not shown as registered with DGEHS in OP2 records during pregnancy checkup from January 2014 to July 2014 since she could not obtain referral from GNCTD, Karkardoma till 23rd July 2014 as her medical card was pending with Accounts Department Office, DNCTD for addition of husband name and change of address. However, when the complainant produced the card and referral at the time of admission, the OP1 restrained her from doing so and therefore the complainant has held OP1 responsible for non registration of complainant under DGEHS scheme. The complainant denied that OP2 was not vicariously liable for acts of OP1 who was working under the panel of OP2 and alleged that OP1 compelled the complainant to get admitted as a private patient to fetch more income to the OP2 hospital. The complainant further rebutted that OP1 was an independent medico not drawing any salary from OP2 or that she was only visiting consultant at OP2 in her personal capacity. The complainant alleged that the OP1 compelled and threatened her at the last stage of the pregnancy to undergo private treatment malafidely to fetch illegal gain for OP2 from the complainant despite the complainant booking herself under DGEHS scheme. The complainant further stated that the OP1 was already well aware of her employment as judicial officer under DJS covered under DGEHS scheme and OP2 being within the list of empanelled private hospitals under DGEHS when for the first time the complainant had visited OP2 in September 2013 under UID No. 410950 when she was treated by OP1 as doctor of OP2 and not in her personal capacity. The complainant denied that she has been regularly visiting OP1 residence or her private clinic and claimed that she was never treated there. The complainant further denied taking undue advantage of her position and reiterated harassment and misbehavior with her by OP1 at OP2. The complainant submitted that the copy of the DGEHS card was supplied to OP2 at the time of admission in August 2014 which was probably removed by OP2 from the records later on to deny later the receipt of the same. The complainant has further rebutted in denial by OP1 as her case not being that of emergency to the effect that the OP1 had herself called the complainant for admission on her visit to OP1 on 28.08.2014 at OP2 on 25.08.2014 and informed that due to nuchal cord being around baby’s neck there may be complication in normal delivery and therefore the delivery is to be done through caesarean operation which was an emergency situation. The complainant further stated that OP2 was vicariously responsible for the acts of OP1 since the act of OP1 compelling the complainant to get admitted as private patient instead of admission under DGEHS scheme was done for monetary benefit of OP2 by availing undue advantage of helplessness of the complainant at the last crucial stage of her pregnancy. The complainant further disputed the allegations leveled by OP2 that the DGEHS card and referral cards were not filed in the hospital by the complainant before admission as false as the same were signed by the medical officer and duly filed by the complainant at OP2. The complainant further disputed the lack of knowledge on the part of OP2 for acts done by OP1 and stated that OP2 cannot absolve itself from the responsibility of misbehavior and unfair trade practice adopted by OP1 thereby holding them jointly and severally liable for all acts during the course of duty as doctor to the complainant. The complainant also reiterated the filing of OPD prescription card of OPD dated 28.08.2014 (Annexure C7) where the deletion of advise of “admission under me” was done by OP1 with subsequent insertion “admit under me in labour” and “admission CTG urgent” by OP1 which knowledge cannot be denied by OP2 just as the payments received by OP2 against caesarean charges and baby care charges which the complainant was compelled to deposit in OP2 account by OP1 which otherwise were not required to be paid by the complainant under DGEHS scheme which amounts to unfair trade practice and illegal act on the part of OPs. Therefore, the complainant reasserted that both the OPs were jointly and severally liable to pay compensation to the complainant which she was legally entitled to.
On the application filed by OP1 for impleadment of United India Insurance Company as necessary party, in oral arguments, the complainant did not object to the same and notice was issued on 29.10.2014 to United India Insurance Company which entered appearance and filed its written statement as OP3 on 02.12.2015 summarily denying the contents of the complaint of the complainant while admitting the professional indemnity policy taken by OP1 vide policy No. 041200/46/12/35/00001511 for the period 12.02.2013 to 11.02.2014 for sum insured Rs. 20,00,000/-. The OP3 primarily objected to its impleadment in view of the possibility that in case this Forum holds OP1 guilty of negligence during the course of treatment, the OP1 is likely to file a complaint and would claim the amount paid by her to the complainant from OP3 as has been the case decided by Hon’ble Supreme Court in the Judgment of Vidur Impex and Traders Pvt Ltd Vs Tosh Apartments Pvt Ltd and Ors and Bhagwati Developers Pvt Ltd Vs Tosh Apartment and Ors AIR 2012 2925 and therefore prayed for its deletion from the array of parties as there is no negligence on its part. Rest of the paras were denial of allegations leveled against OP1 and OP2 by the complainant in her complaint for lake of knowledge or even otherwise.
Evidence by way of affidavit was filed by the complainant as well as OP1 and OP2 exhibiting relevant documents in support of their case/defence. The complainant has exhibited DGEHS card, list of empanelled private hospitals under DGEHS in Delhi NCR, the entire case history / medical documents / prescriptions / surgery and baby care package etc from exhibit CW1/3 till CW1/9. Exhibit CW1/10 11,12,13 were legal notices sent to OP1 and OP2 by complainant and replies thereto by OP1 and OP2. OP1 exhibited the insurance policy with OP3 and her qualifications. OP2 in its affidavit exhibited the entire medical record of the complainant. No evidence by way of affidavit was filed by OP3 which has stopped appearing after filing its written statement in December 2015 itself and was a proforma party.
Written arguments were filed by the complainant as well as OP1 and OP2 delineating the entire case history and respective defence. During the course of arguments, for the first time in three years during the course of pendency of the present case since February 2015, the OP2 objected to the maintainability of the present case on grounds of territorial jurisdiction as OP1 and OP2 both were outside and ambit of the jurisdiction of the Forum and that the same fell under Jurisdiction of DCDRF-East Saini Enclave, Delhi since the territorial jurisdiction in case of medical negligence depends on place on treatment and relied upon judgment in Smt. Anita Vs Max Super Specialty Hospital and Ors passed by Hon’ble SCDRC Delhi in complaint case No. 364/2017 and decided on 04.04.2016 on the basis of judgments passed by Hon’ble NCDRC in Arun Goyal vs Sarfaraz Ahmad III (2014) CPJ 478A and in National Commission in Ram Murthi Smarak Institute of Medical Science Vs Radhe Shyam III (2015) CPJ 151.
We have heard the exhaustive and lengthy arguments addressed by the complainant as well the OPs and their rival contentions in terms of allegations leveled and defence thereto and have carefully perused the entire case file and the documents exhibited by both the sides as a matter of record.
It is not in dispute that the complainant had taken treatment from OP1 since September 2013 till August 2014 with OP1 for urinary infection, pregnancy and delivery at OP2 hospital. The point of dispute is whether the complainant who was claiming to be covered under DGEHS scheme as facility provided to her by virtue of her being judicial officer appointed under DJS was disclosed by her to OP1 and OP2 or not. On keen / thorough perusal of records, it leaves no doubt that the complainant had apprised the OP1 of her position as judicial officer under DJS in September 2013 itself and factum of being covered under DGEHS even though admittedly documents to that effect were submitted at the last stage of her pregnancy since as per complainant’s own admission her DGEHS card and referral letter were pending finalization with the Government Authority for updation of her husband’s name and new address which was provided to her almost a month before her date of admission with OP2 in August 2014. Exhibit CW1/4 - The Medical Card which was filled on 25.08.2014 by OP1 clearly mentions that the complainant was covered under DGEHS under the head ‘personal insurance’ mentioned on that card. Therefore the primary defence of OP1 and OP2 of lack of knowledge of the same and non submission of DGEHS card or such pertaining details by the complainant is without any merit and is therefore decided against the OP1 and OP2 in favour of the complainant as knowledge to one is imputed to the other in this case. It is preposterous to even assume that somebody who has been granted a facility / benefit from the government for free medical treatment by virtue of holding a prestigious judicial post would not avail of that entitlement and voluntarily incur expenses as private patient in a private hospital where for normal ailments, treatment charges are much higher than that in government hospitals more so when such a private hospital was empanelled under the scheme of which the complainant was a beneficiary i.e. DGEHS in the present case. The complainant has exhibited the bills incurred for a sum of Rs. 1,00,874.60 Paise towards caesarean delivery expenses and baby care package with the OP2 hospital as private patient during her admission from 28.08.2014 till discharge on 31.08.2014 at OP2 which according to us cannot be her voluntary option but was rather compelled to bear out the expenses as private patient which fact becomes very clear from the exhibit CW1/7 dated 28.08.2014 where the OP1 had initially refused to admit the complainant under her and later on admitted her in labour on the same day which arouses suspicion that possibly rather indeed there must have been heated exchange of words/temper/argument on the type of admission of the complainant under DGEHS or private which demand of OP1 for the complainant to get admitted as private patient must have been conceded to by the complainant given her advanced stage of pregnancy and perilous positioning of the foetus (Nuchal Cord). Therefore it is very clear that the OPs, specially OP1 all along was well aware of the fact that the complainant was judicial officer covered under DGEHS and it is immaterial whether the same was known to her around delivery time since the OP1 had entered ‘DGEHS’ on medical card of complainant on 25.08.2014 before her admission.
Another defence taken by OP1 and OP2 as being independent entities and having no master-servant relationship / vicarious liability qua each other are just an eye wash/ moonshine to escape and shift the liability on to each other to confused / misguide this Forum in a clever attempt to collectively wriggle out of the allegations levelled against them by the complainant by filing separate replies to legal notice of the complainant and filing separate written statement to the effect that OP1 was working in dual capacity of independent consultant gynaecologist as well as looking after patient under DGEHS and OP2 stating that OP1 is merely a visiting consultant and independent medical professional drawing no salary from OP2. It is an unfathomable argument and no concrete evidence / documentary proof has been filed by either of the OPs to corroborate independent acts and no professional nexus / tie-up between them as the written statements are rather evasive and dismissive in content. The OP2 cannot be a mere venue for surgery conducted by OP1 as impressed upon by OP2 as if drawing no income/ profit from surgery conducted by so called ‘visitingconsultant / consultant/ independent/ gyneocologist’ within the premises of OP2 and using its facilities/ staff/ infrastructure. Therefore this defence taken by the OPs is devoid of merits and we find force in the rebuttal thereto by the complainant in the rejoinder that both the OPs were working for mutual enrichment and benefaction which becomes very clear and explains that OP1 was playing active and instrumental role in admission process compelling the complainant to get admitted as a private patient with OP2 for which a bill more than of Rs. 1Lac was raised on her payable to OP2. Therefore this issue is also decided in favour of the complainant and against the OPs in as much as they were intrinsically linked to each other in matters of admission and treatment of patients private or covered under DGEHS or the likes of it and were in a symbiotic relationship with vested monetary interests and accountable for each other’s action, deeds, misdeeds and misdemeanors of any kind.
Lastly the OP2 has disputed the jurisdiction of this Forum in the written arguments filed by it on grounds of territorial jurisdiction. However a very pertinent observation has been made by this Forum that to the para 19 of the complaint of the complainant pertaining to maintainability of the present complaint before this Forum, in the written statement filed by the OP2, there is not even an iota of whisper of opposition much less a preliminary defence taken on the grounds of territorial jurisdiction which corresponding para of complaint under reply filed by OP2 is rather an evasive denial of any cause of action accruing against OP2. Therefore this defence of non maintainability of the present complaint on grounds of territorial jurisdiction should have been taken at the earliest available opportunity by the OPs right at the inception of the complaint upon presenting its defence and not at the last / final stage of addressing oral arguments which clearly shows it is an afterthought strategywhich is unsustainable and cannot be allowed at this final stage to defeat the ends of justice after three years of litigation and pendency of proceedings when the complaint was listed post notice since May 2015 and the OPs had ample opportunity to oppose the maintainability of the present complaint at its nascent stage which opposition shall not be permitted/ entertained at the ripe and advanced stage of addressing oral arguments. Therefore this arguments is not sustainable at this stage of adjudication and is therefore decided against the OP1 and OP2.
In view of the observations made by us on the above three key issues we are of the considered view that the complainant has successfully made out a case of unfair trade practice qua the OP1 and OP2 as being wrongfully compelled by OP1 to undergo surgery at OP2 as a private patient despite being covered under DGEHS scheme. We therefore hold the OP1 and OP2 jointly and severally liable to compensate the complainant for all the harassment mental and physical agony and forceful extraction of unlawful moneys from the complainant.
We therefore direct the OP1 and OP2 to reimburse to the complainant Rs. 1,00,874.60/- (Rupees One Lacs Eight Hundred Seventy Four Rupees and Sixty Paise) wrongfully extracted by OP1 and OP2 from the complainant towards cesarean and baby care charges despite her being covered under DGEHS scheme alongwith interest @ 9% p.a. thereon from the date of filing of the present complaint till realization. We also award a sum of Rs. 3,00,000/- (Rupees Three Lacs Only) compensation towards mental and physical agony payable by the OP1 and OP2 jointly and severally to the complainant. Let this order be complied by the OPs jointly and severally within 30 days of receipt of this order.
Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
File be consigned to record room.
Announced on 07.02.2018
(N.K. Sharma)
President
(Sonica Mehrotra)
Member
(Ravindra Shankar Nagar) Member
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