BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, FATEHABAD.
Complaint no. 166/2018 Date of instt. 30.05.2018. Date of Decision: 31.12.2019
Rahul Kumar son of Shri Hanuman Singh, resident of Village Bhirdana, Tehsil & District Fatehabad.
…...Complainant.
Versus
- Dr. Pankush Arora, D.Ortho, M.Ch. (Ortho), Life Care Hospital, Bighar Chowk, Near Batra Hospital, Fatehabad Tehsil & District Fatehabad.
- The Oriental India Insurance Company Limited, 4-E/14, Azad Bhawan, Jhandelwalan Ext. New Delhi-110055
……..Respondents/OPs.
Complaint under Section 12 of Consumer Protection Act, 1986.
Before: Sh. Raghbir Singh, President. Sh. Jasvinder Singh, Member.
Argued by: Sh. Sita Ram, Advocate for complainant. Sh. U.K.Gera, Advocate for OP.
ORDER:
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the Opposite Party (hereinafter to be referred as OP) with the averments that he is working as a Mason and used to construct the house building etc. on contract basis and was earning Rs.30,000/- per month. It is further submitted that he met with an accident on 17.06.2017 when he was going on his motorcycle and sustained injuries on his left hand. The left hand wrist of the complainant was fractured.
2. It is further submitted that thereafter the complainant was admitted in Life Care Hospital, Fatehabad where the complainant was advised for x-ray of his left hand and as per the advice, the complainant was radiologically examined in the hospital of the OP. After obtaining the x-ray report it was told to the complainant that the wrist of the left hand of the complainant was fractured. Thereafter the complainant was treated and operated in the hospital of the OP and it was assured that in operation the iron plate will be fixed to connect the bones of wrist of left hand. However after the operation the complainant noticed that the complainant is still feeling severe pain in his left hand and the complainant was not treated from the injury of left hand. Therefore the complainant again visited the said hospital and on the instructions of the OP, the complainant was radiologically examined and thereafter it was told to the complainant that the fractured bone has not been connected and as such the same will be operated again. On this the complainant was again operated in the aforesaid hospital and the respondent has charged huge amount from the complainant for both the operations, hospital charges and medicine etc.
3. It is further submitted that the left hand of the complainant is not working properly and even the wrist of left hand is unable to move, the complainant is unable to uplift anything with his left hand. Therefore, the complainant visited another doctor who after checkup told the complainant that the respondent has committed gross negligence during the treatment of the complainant only in order to extract the money from the complainant. It is further submitted that left hand of the complainant is not in the proper shape and the complainant has become permanently disabled from his left hand and when the complainant approached to OP it was told to the complainant that he will be operated again for affixing the plates and it was told that the expenses of this operation will be atleast Rs.40,000/- and whereas the OP had already taken a huge amount of Rs.1,00,000/- from the complainant.
4. It is further submitted that due to disability of the left hand, the complainant is unable to do his work of mason and cannot discharge his duties. It is further submitted that thereafter the complainant issued a legal notice to the OP No. 1 for making a payment of Rs.5,00,000/- as compensation on account of permanent disability and loss of income due to negligence of OP No. 1. However despite proper service of the notice the OP did not reply to the said legal notice. It is further submitted that above said act on the part of OP No. 1 amounts to deficiency and medical negligence in rendering service to the complainant and as such the complainant is entitled for compensation.
5. The complainant has further prayed that the present complaint may be allowed and the OPs may be directed for making a payment of Rs.5,00,000/- as compensation on account of becoming disabled and Rs.1,00,000/- which has been received by the OP as hospital and medicine charges. It is also prayed that the complainant is also entitled Rs.1,00,000/- as compensation on account of mental agony and physical harassment and Rs.11,000/- as litigation charges. Hence, the present complaint.
6. On being served, the OP no. 1 appeared through counsel and resisted the complaint by filing a written statement wherein various preliminary objections with regard to maintainability, cause of action, non-joinder of necessary parties, abuse of process of law and concealment of true and correct facts etc. have been raised.
7. In reply, on merits it is submitted that the complainant visited the OP No. 1 hospital as OPD patient with a history of RTA caused by his own negligence. It is further submitted that the patient was examined and the surgery was advised in the form of getting admitted and plating after duly explaining the pros and cons of the surgery. He was operated diligently and prudently with utmost due care and caution for left radius fracture with 2K wires on the same day and was given POP split. It is further submitted that no guarantee or warranty or no other assurance was ever given to the patient at any time of the treatment. He was advised to take medicine for 3 days and to come for follow up as per the OPD slip dated 17.06.2017 filed with the complaint. However the complainant came only on 04.07.2017 i.e. after about 17 days. On that day he was given definitive cast and he was asked to come after 15 days. But he came to the hospital on 24.07.2017 as per the OPD slip and on that day he did not visit the doctor and again appeared on 03.08.2017 for cast and wire removal. On that day, x-ray was done and he was advised for reoperation on that very day. However, he went away to come later on 09.08.2017 and he was operated in the Form of Elastic Nailing and was advised to come for follow up after 3 days but he came on 22.09.2017 i.e. after about 43 days which a sheer negligence on the part of the complainant. Thereafter he came on 21.10.2017, while he had to come on 12.10.2017. It is also further submitted that the complainant did not take the medicine as per the advice and used to lift the weight. The complainant again came in to hospital on 16.12.2017 and was advised x-ray but he went away without any treatment. Thereafter the complainant came on 25.1.2018 and he was advised for bone grafting and plating, but he disappeared again without getting any treatment.
8. It is further submitted that in view of the above said position, there is no medical negligence on the part of OP in giving medical treatment to the complainant and as such the present complaint is without any merits and liable to be dismissed.
9. The OP No. 2 also resisted the complaint by filing a written statement wherein various preliminary objections with regard to maintainability, cause of action, estoppal and locus standi etc. have been raised. In reply on merits, the OP No. 2 has denied all the allegations levelled against the Ops and has resisted the complaint in the similar grounds as taken by OP no. 1 in its written statement. It has been further prayed by OP No. 2 that the present complaint is without any merits and as such the same is liable to be dismissed.
10. The learned counsel for the complainant tendered in evidence affidavit of the complainant as Ex.CW-1/A alongwith documents as Annexure C-1 to C-21 and closed his evidence. On the other hand, the learned counsel for OP No. 1 tendered in evidence affidavit of the OP No. 1 alongwith the documents as Annexure R-1 to R-4.
11. We have duly heard the arguments advanced by the learned counsel for the parties and have perused the documents placed on the case file.
12. The core issue involved in the present complaint for determination by this Forum is as to whether there is any ‘Medical Negligence’ on the part of the Op No.1 in giving medical treatment to the complainant. The proposition of Law regarding medical negligence is no more Res-integra and in a catena of judgments the Hon’ble Apex Court has settled the proposition of Law regarding the medical negligence. It is a settled proposition of law that the onus is upon the complainant to prove the medical negligence on the part of the doctor or the hospital. The Hon’ble Supreme Court of India in Civil Appeal No.6168 of 2008 decided on 1.5.2009 in case titled as C.P.Sreekumar, M.S.(Ortho) Versus S.Ramanujam held that onus to prove medical negligence lies on the complainant. Mere vague averments in the complaint is not sufficient. Same has to be proved by cogent evidence-complainant has to provide facta probanda as well as facta probantia. Therefore, in view of the above said judgment rendered by the Hon’ble Apex Court the onus to prove that there is medical negligence on the part of Op No.1 in giving medical treatment to the complainant lies upon the complainant. However, the complainant has not adduced any cogent, convincing or credible evidence on the case file to prove that there is medical negligence or deficiency on the part of the OPs in giving medical treatment to the complainant. The complainant has also not produced any opinion of Board of doctors or any other doctor in support of his contention to prove that there is medical negligence on the part of Ops in giving medical treatment to him. In para no. 4 of the complaint, the complainant has submitted that after taking treatment from the hospital of OP No. 1 the complainant had consulted another doctor, who after checkup told the complainant that the respondent has committed gross negligence during the treatment of the complainant. However, in support of the above said contention, the complainant has not placed on record any observation or opinion of the above said doctor. Oral submissions in absence of documentary evidence cannot relied upon. In absence of any cogent, convincing, credible evidence or opinion of expert doctor, it cannot held that there is a medical negligence on the part of OP No. 1 in giving medical treatment to the complainant. Moreover, from perusal of the documents placed on record it seems that the complainant himself was not regular/punctual in taking treatment from the hospital of OP No. 1.
13. In Kusum Sharma & Others Versus Batra Hospital & Medical Research Centre & Others, 2010 (2) RCR (Civil) 161, Hon’ble Supreme Court while deciding whether the medical profession is guilty of medical negligence held that following well known principles must be kept in view:-
1. 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 profession 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 profession is often call 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 patients. The interest and welfare of the patients have to be paramount for the medical professionals.
14. In a catena of judgments, it has been held by the National Commission and Hon’ble Apex Court that merely because a 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. The doctor, no doubt, has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution.
15. In a number of judgments the Hon’ble Apex Court and Hon’ble National Commission have held Medical professionals are not to be unnecessarily harassed or humiliated so that they can perform their duties without fear and apprehension Malicious prosecution against medical professors/ hospitals for extracting uncalled for compensation is not maintainable. Reference may be made in case titled as Kusum Sharma Versus Batra Hospital and Medical Research Centre and Ors., AIR 2010 Supreme Court 1050. In State of Punjab Vs. Shiv Ram & Ors. IV (2005) CPJ 14 (SC), the Hon’ble Supreme Court has held that “A doctor, in essence, needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in. If the medical profession, as a whole, is hemmed in by threat of action, criminal and civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the fact of an unexpected problem that confronts him during the treatment or the surgery.
16. Thus, as a sequel to our above discussion, the complainant has failed to prove any deficiency in service or medical negligence against the opposite parties. Hence, the present complaint is hereby dismissed being devoid of merits. However, both the parties are left to bear their own costs. A copy of this order be supplied to the parties, free of costs. File be consigned to record room after due compliance.
Announced in open court:
Dated:31.12.2019
(Raghbir Singh)
President,
(Jasvinder Singh) District Consumer Disputes
Member Redressal Forum,Hisar
