Before the District Consumer Disputes Redressal Forum Barnala.
Complaint No. : 254/2014
Instituted on : 14.11.2014
Date of Decision : 14.07.2015
Babli Kaur daughter of Sarwan Singh resident of House No. B-IV-815, Dashmesh Gali, near Dayanand Kanderaya Vidya Mandi, Barnala Tehsil and District Barnala.
…Complainant
Versus
Dr. Raj Kumar Civil Surgeon, Civil Hospital, Barnala.
…Opposite Party
Complaint under Consumer Protection Act.
Present : Sh. NP Singh counsel for complainant with complainant
Sh. PS Aulakh Counsel for opposite party.
Quorum:
1. Shri S.K. Goel : President
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(By Ms. Vandna Sidhu Member):
This complaint No. 254/2014 has been filed by the complainant along with affidavit and documents. Brief facts of the case are that the complainant faced some problem in her gall bladder and due to this reason she was taken to Civil Hospital, Barnala on 28.7.2014 and was admitted in the Civil Hospital Barnala vide admission No. 958 dated 28.7.2014. She was treated by opposite party named Dr Raj Kumar. As per complaint she availed the services of opposite party and became consumer of the opposite party. She was operated on 8.8.2014 but due to no improvement in the health of the complainant she became deteriorated. The complainant was facing difficulties in breathing and also developed fever due to operated by the opposite party in a utmost negligent manner. When the health of the complainant became deteriorated then opposite party in order to save his skin referred the complainant to Rajindera Hospital, Patiala by the opposite party on 11.8.2014 vide CR No. 31965 dated 11.8.2014. In the Rajindera Hospital the complaint was declared as patient of Billiany Perzitonitis and she was referred to PGI, Chandigarh. The admission Number of PGI Chandigarh was 201403850036 dated 12.8.2014 and was discharged on 25.8.2014. She further stated that complainant was treated by Dr. Billiamy. Now she was taking treatment from PGI, Chandigarh.
Thus with these allegations the complainant prayed to this Forum to allow the instant complaint and direct the opposite party;-
1) To pay the sum of Rs. 1,00,000/- to the complainant on account of mental tension, agony, physical harassment and hazard havoc caused to the health of the complainant as compensation and to pay Rs. 10,000/- as costs of proceedings.
In regard to jurisdiction complainant availed the service of the opposite party at Barnala.
2. After sending notice to opposite party, the opposite party appeared and submitted version. In legal objections it is submitted that complainant has no locus standi and cause of action to file the present complaint, complaint is not maintainable. Complainant has concealed the true facts from this Forum. Complainant is not a consumer of the opposite party as the opposite party is only service provider. Moreover no fee/ charges ever received from the complainant and the treatment of the complainant done by the opposite party totally free as directed by the SMO duly mentioned on the admission record. Complaint is bad for non joinder of necessary parties as the complainant failed to implead the Department of Health and Family Welfare, Punjab and PHC as necessary party. Further, the complaint is false and frivolous.
3. On merits, the opposite party done the surgery of the complainant to his best knowledge and ability. After the surgery complainant starting recovering from the ailment. It is pertinent to mention here that as per operation notes, the gall bladder was identified only after removal of ADHESIONS. ADHESIONS means the surrounding substance were attached with the gall bladder which includes intestine and omentum. In this process the intestinal wall got thinned out which later on leaked to result in unwanted complication. The incidence of such complication is well documented. It is also important to explain here that after two days patient complained of fever and abdominal distension and on this patient was referred to higher centre for second opinion. Opposite party has every right to refer the patient to higher centre for the benefit of patient. There is no alleged negligence on the part of the opposite party.
4. It is further submitted that complainant has not suffered any alleged mental tension, agony or physical harass, so there is no deficiency on the part of the opposite party. It is denied that due to the wrong act of the opposite party the complaint became oblique or her future life became hell. It is also denied that it is causing alleged problems in getting suitable match for her marriage. The opposite party done the surgery to the best of his knowledge and ability. So, the complaint is liable to be dismissed with costs.
5. In support of her pleadings complainant tendered documents as copy of admission record Ex.C-1, copy of OPD slip Ex.C-2, copy of ultra sound report Ex.C-3, copy of informed consent Ex.C-4, copy of OT notes Ex.C-5, copy of anesthesia notes Ex. C-6, copy of treatment chart as Ex. C-7 and Ex.C-8, copy of general physical examination report Ex.C-9, copy of history Ex.C-10, copy of daily progress report Ex.C-11 and Ex.C-12, copy of bill Ex.C-13 and Ex.C-14, copy of referral slip Ex.C-15, copy of ultra sound Ex.C-16, copy of PGI record Ex.C-17, affidavit of Babli Kaur complainant Ex.C-18, copy of treatment chart Ex.C-19, copy of CECT report Ex.C-20 and closed the evidence.
6. Opposite partt also tendered in evidence affidavit of Dr. KG Singla Ex.OP-1, affidavit of Dr. Raj Kumar Ex.OP-2 and closed the evidence.
7. We have heard the learned counsel for the parties and also gone through the record carefully. Having carefully perused the experts evidence adduced by both the parties. As per complaint complainant faced some physical problem and that is why she was taken to Civil Hospital on 28.7.2014 and was admitted vide admission no. 958 dated 28.7.2014. Complainant alleges in her complaint that she is a consumer of the opposite party but as per Ex.C-1 which was tendered by complainant no admission fee was taken by opposite party, or at the time of discharge here is not on record of Ex. C-1 that a single penny was charged by opposite party from the complainant. So, the legal objection which was taken by the opposite party in regard of falling complainant under Section 2 (1) (d) is correct one and worth able.
8. This Forum prefer to reliance on judgment of Hon’ble Apex court in Law Finder Doc Id # 71349 = 1996 (1) Consumer Law Today – 1 (SC) Indian Medical Association Vs. V .P. Shantha and others and held that complainant does not fall with purview of consumer. Paragraph of the aforesaid judgment runs as under: ‘The other part of exclusionary clause relates to services rendered “ free of charges”. The medical practitioners Government hospitals/nursing homes and private hospitals/nursing homes ( herein after called “ doctors and hospitals” ) broadly fall in three categories ;-
i) where services are rendered free of charge to every body availing the said services .
ii) where charges are required to be paid by everybody availing the services and
iii) where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges.
9. Now the above stated exclusionary clause relates to this complaint as per clause (iii). Mean to say the third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis.
It is pertinent to mention here that the service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2 (1) (o) of the Act. Section 2 (1) (o) means “service” which further means service of any description which is made available to potential (users and includes, but not limited to, the provision of) facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board, or lodging or both (housing construction), entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
10. In the light of aforesaid observation it becomes clear that where services are rendered free of charge to everybody availing the said services, patient does not fall within the purview of consumer.
11. This Forum appreciate this citation referred in 2014 Vol. (4) CLT page no. 534 (N.C.) titled as Major Singh Versus State of Punjab and others in which it is held that.-
Consumer – Medical negligence – Govt. Hospital – Held – That where services are rendered free of charge to everybody availing the said services – patient does not fall within purview of consumer. (para 6) Consumer Protection Act, 1986, Section 2 (1) (o)-Consumer-Medical negligence- Complainant took treatment in Government Hospital- Held- That where services are rendered free of charge to everybody availing the said services- patient does not fall within the purview of consumer- complainant could not prove that government hospital was not rendering services free of charge to everybody and in such circumstances, complainant does not fall within purview of consumer. (para 6)
12. We are also equipped with the judgment reported in 2015 (April) Consumer Protection judgments, page no. 102 titled as Mihir Banerjee Versus Dr. Abhijit Roy in which it is held that.-
Consumer Protection Act, 1986 –Section 2 (1) (d) 21 (b) – consumer – medical negligence – Doctor not treated patient for any kind of consideration – petitioner not consumer. (para 11)
13. It is pertinent to mention here that the above stated Forum prefer to refer this citation 2014 Vol. (4) CLT 492 (Consumer Law today ) titled as Chand Kishore Rajput Versus M/s Sood Stone Clinic (Hospital) and others in which it is held that.-
Consumer Protection Act, 1986, Section 2 (1) (g) Medical Negligence – Complainant alleged that there was negligence in conducting the lithotripsy procedure due to which he suffered the injury to the Bulbous urethra – Held – just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation – A medical error is only considered “ negligent” if the health care practitioner has failed to take “reasonable care” – The law does not requires that a doctor to act ‘perfectly”, but rather, the law requires that a doctor take “reasonable care” in treating and advising a patient . (para no.8)
As per para No. 8 of the above stated citation just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation. A medical error is only considered ‘negligent’ if the healthcare practitioner has failed to take ‘reasonable care’. The law does not require a doctor to act “perfectly” but rather the law requires that a doctor take “reasonable care” in treating and advising a patient. This is not a high or impossible standard to achieve.
14. In this case, firstly we do not find that there is any negligence or any short coming in the treatment given by opposite party named Dr. Raj Kumar to the complainant. Opposite party performed surgery of abdomen after informed consent to the complainant named Babli as per Ex.C-4. In the written version it is submitted by the opposite party, as per operation notes, the gall bladder was identified only after removal of ADHESIONS. ADHESIONS means the surrounding substance were attached with the gall bladder which includes intestine and omentum. In this process the intestinal wall got thinned out which later on leaked to result in unwanted complication. The incidence of such complication is well documented. It is also important to explain here that after two days patient complained of fever and abdominal distension and on this patient was referred to higher centre for second opinion. Opposite party has every right to refer the patient to higher centre for the benefit of patient. On the basis of facts mentioned in para No. vii) of the reply opposite party denied the contents of para No. 3 (vii) of the complaint, it is denied that due to the wrong act of the opposite party the future of the complainant became oblique or her future life became hell. It is also denied that it is causing alleged problems in getting suitable match for her marriage. As per reply by opposite party, he done the surgery to the best of his knowledge and ability.
15. As per Ex.C-18 i.e. affidavit of complainant in para No. 2 it is mentioned that when the health of deponent became deteriorated then opposite party in order to save his skin referred complainant to Rajindera Hospital Patiala by the opposite party on 11.8.2014 and complainant was admitted in Rajindera Hospital Patiala vide CR No. 31965 dated 11.8.2014. In the Rajindera Hospital Patiala the complainant was declared as patient of Billian Perzitinitis and she was referred to PGI, Chandigarh. Copy of referral slip is Ex.C-15. But as per statement of Dr. K. Hemanth Kumar, Senior Resident, Department of General Surgery, PGI, Chandigarh, nothing is on record which proves the negligence of opposite party. Moreover counsel for the complainant did not rebut the evidence of Dr. K. Hemanth Kumar when he was in the witness box and even the doctor is the expert witness of the complainant. Moreover, affidavit Ex.OP-1 of Dr. K.G. Singla son of Lachman Dass as para No. 2 during the cholecystectomy the complications like intestinal injuries can occur and it is a well documented complication. As per the operation notes during the removal of ADHESIONS the intestine can get injured which can perforate later on, so it is operation related complication and is not deficiency on the part of opposite party Dr. Raj Kumar. As per affidavit i.e. Ex.OP-2 of Dr. Raj Kumar who is medical officer submitted in para No. 2 that he done the surgery to his best knowledge and ability. After the surgery complainant starting recovering from the ailment. It is pertinent to mention here that after two days patient complained of fever and abdominal distension and on this patient was referred to higher centre for second opinion. So, as per the observations of this Forum immediately referring to the patient to higher centre is the best effort which was done by Dr. Raj Kumar.
16. Further, the complaint is also hit by non joinder of necessary parties as complainant failed to implead the Department of Health and Family Welfare, Punjab and PHC as necessary parties.
17. On the basis of foregoing discussion and as per the prescription written by the opposite party, we do not find much substance in the allegation of the complainant that the opposite party, the treating doctor, was medically negligent and deficient in rendering service to the complainant, we are of considered view that, the opposite party is a qualified medical officer and had acted ‘reasonably. His treatment and follow up advice was correct. The complainant failed to prove medical negligence. So, there is no deficiency in service on the part of the opposite party. Accordingly, the present complaint is dismissed. However, no order as to costs. Copy of this order be supplied to the parties free of costs. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
14th Day of July, 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandana Sidhu)
Member
