Present: None.
It has been brought to our notice by the Jr. Scale Stenographer namely Shiv Shanker that inadvertently in para No.24, in 5th line the name of the OPs No.3 & 5 to 7 have been typed instead of OP No.4. We have gone through the para No.24 of the Order dated 15.03.2023. As per the observation of the Commission, the complaint of the complainant was partly allowed against OPs No.1, 2 and 4 and was dismissed against OPs No.3 and 5 to 7. Inadvertently, while granting the relief the names of OPs No.3 and 5 to 7 have been typed and they have been directed to pay Rs.50,000/- for acting negligently, whereas the complaint was dismissed qua them. As per Section-40 of the Act, the Commission has power to review its own order, if there is any error apparent on the face of it. Since, this error is apparent on the face of it and is a typographical mistake, therefore, the presence of any of the party is not required. Considering all the facts, the relief clause is reviewed and the para No.24 of the order is corrected as OPs No.1 and 2 are directed to pay a compensation of Rs.2,00,000/- to the complainant for causing medical negligence and OP No.4 is directed to pay Rs.50,000/- for acting negligently by not providing any treatment for increased thyroid. The Order is accordingly reviewed. The Jr. Scale Stenographer is warned to be careful in future. The Jr. Scale Stenographer is further directed to correct the last para, which is, the relief clause of the order dated 15.03.2023. Copies of the reviewed Order be sent to the parties as per rules.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
31.03.2023 Member Member President
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.254 of 2020
Date of Instt. 02.09.2020
Date of Decision: 15.03.2023
Sujata aged about 30 years W/o Sh. Jagjivan Ram, R/o House No.935, Near Santpura Gurudwara, Nakodar Road, Jalandhar.
..........Complainant
Versus
1. Dr. Savita Nagpal, C/o Nagpal Clinic, Model House, Jalandhar.
2. Nagpal Clinic, Model House, Jalandhar through its Executive Head/ Director.
3. Doaba Hospital Pvt. Ltd., Maternal and Child Care Centre, 320, Lajpat Nagar, Main Road, Jalandhar through its Director/Executive Head.
4. Dr. Anshu Paul, C/o Doaba Hospital Pvt. Ltd., Maternal and Child Care Centre, 320, Lajpat Nagar, Main Road, Jalandhar.
5. Dayanand Medical College & Hospital, Ludhiana through its Director/Executive.
6. Dr. Kamaldeep Arora, Consulting Doctor NSCU-II C/o Dayanand Medical College & Hospital, Ludhiana.
7. United India Insurance Company Ltd. Rani Hospital, G. T. Road, Opposite General Bus Stand Khanna, Ludhiana-141401, Punjab through its Divisional Manager. (Insurer of M/s Dayanand Medical College & Hospital, Ludhiana vide policy No.2006002719P106310789 valid from 09.08.2019 to 08.08.2020.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Ravinder Tandon, Adv. Counsel for the Complainant.
Sh. G. L. Gagneja, Adv. Counsel for OPs No.1 & 2.
Sh. Anuj Mehta, Adv. Counsel for OP No.3.
Sh. Vikas Sharma, Adv. Counsel for OP No.4.
Sh. Manmohan Singh, Adv. Counsel for OPs No.5 & 6.
Sh. B. P. Singh, Adv. Counsel for OP No.7.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant, wherein alleged that the complainant is running a Salon under the name and style as M/s Viva Professional Salon & Academy at Guru Teg Bahadur Nagar, Jalandhar by way of self employment in order to earn her livelihood. In the month of February 2019, the Complainant got pregnant and all the family members, relatives were very happy because it was a first child in the family. In the month of March 2019, the Complainant went for regular Check-up and went to Nagpal Clinic, Model House, Jalandhar. Dr. Savita Nagpal medically check-up her and assured her that she is competent to treat these kind of cases. The Complainant remained under treatment from 27.03.2019 to 24.08.2019. On dated 27.03.2019, the prescription slip Dr. Savita provides Allopathic Medicine to the Complainant and also referred the Complainant for scanning from Diagnostics, 179/1, Shaheed Udham Shree Singh Nagar, Jalandhar. Again on 18.05.2019, the Complainant got scanned from above said Shree Diagnostics, 179/1, Shaheed Udham Singh Nagar, Jalandhar and again on 12.07.2019 the Complainant was got scanned Diagnostics, 179/1, Shaheed from Udham Shree Singh Nagar, Jalandhar. Considering the above said reports which clearly reflects as under mentioned:-
"Uteroplacental and foetal Doppler evaluation No. flow reversal seen in ductus venosus a wave DVPI-0.87 Bilateral uterine arteries show mean PI of 1.6 (High Resistance Flow) Umbilical artery diastolic flows are established fetal cardic assessment"
Impression:-
• Ongoing pregnancy of 19 weeks 3 days
. High Resistance flow in uterine arteries.
2. However, the OP No.1 has ignored the report of scan and has not treated the Complainant properly and has given improper and unjustified medicine. The treatment of the Complainant with gross negligence which effect the inflow of supply of oxygen and blood supply of the fetus and thus hampers the growth of child in the womb. It is pertinent to mention here that the complainant was pregnant when the treating Dr. Savita Nagpal i.e. OP No.1 was giving medicine and injections and after taking the regular medicine and injections for three months, but after three months the complainant got swelling in whole body and also suffered pain in her body and joints and further body weight of complainant has increased in short period These symptoms show the nature of Hypothyroid. It was a case of hypothyroid. The OP No.1 neither conduct the thyroid test nor provide any medicine despite the fact that Complainant showed the symptoms of malfunction of Thyroid. The main grievance of the Complainant is that the scan report dated 12.07.2019 was absolutely ignored and moreover the Complainant was kept in darkness even after asking many time about the treatment and scan reports, false assurance was given by the OP No.1. It is established law if such kinds of symptoms are seen in that case thyroid test is Mandatory for a pregnant lady. The Complainant want to draw the kind attention of this Commission towards the multifarious deficiency of OP No. 1, which are under mentioned as allegations and graveness:
1. Academic and professional qualification of OP No.1 (herein after say Dr. Savita). It is clarified that Dr. Savita is a BAMS, but it was not mentioned even in the letter pad/OPD Card and prescription slips. It is established law that on letter pad/OPD Card and prescription slips one has to clearly mentioned the academic and professional qualification. But Dr. Savita intentionally and knowingly concealed this material fact. The Complainant came to know this fact from the reliable sources at very later stage.
2. Proper medicine was not provided: It is clarified that as per the record the professional qualification of Dr. Savita is BAMS and she prescribes the Allopathic Medicine, which is against the ethics of Medical treatment. The OP also violation of notification of Medical Council of India in respect of Professional Conduct, Etiquette and Ethics Regulations 2002.
3. The Complainant extremely aggrieved and dissatisfied from the treatment of OP No. 1 and moreover the condition of the Complainant got deteriorated. The Complainant was then referred to Doaba Hospital, Jalandhar i.e. OP No.4 for medical treatment on 24.08.2019. The OP No. 4 has sent the Complainant for blood test and thyroid test. It is pertinent to mention here that in the thyroid report dated 02.09.2019 of the Complainant it is mentioned that TSH (Ultrasensitive) level is 4.21 which is abnormally higher in Third Trimester (Usually the TSH level in Third Trimester is between 0.3-3.0) vide report dated 26.09.2019. After taking the medicine for some days, TSH (Ultrasensitive) level is increased from 4.21 to 9.70. When the Complainant told the OP No. 3 & 4 whether she suffering from any thyroid problem, then the OP No. 3 & 4 informed the Complainant that she is not suffering from Thyroid problem. The OP No. 3 & 4 ignored the said thyroid problem of the Complainant and as a result condition of the Complainant became deteriorated. OP No. 3 & 4 also kept the Complainant in darkness about the level scanning dated 12.07.2019, therefore treatment was not given even Complainant requested many times. The Complainant spent huge amount for scanning, blood test, thyroid test, medicine and medical fee. However, the OP No. 3 & 4 did not issue any receipt to the complainant despite repeated requests of the complainant. OP No. 3 & 4 did not provide the complete record to the complainant which violate the notification of Medical Council of India in Chapter 1 Para No.1.3 Para 1.3.1 and 1.3.2. The grievance of the Complainant is that OP No. 3 & 4 neither adopts the proper procedure for treatment nor adopts the proper skill in the treatment. Now Very pure and fundamental question arise whether OP No. 3 & 4 successfully treated the treatment of thyroid given to the complainant, the answer is negative that OP No. 3 & 4 did not adopt the proper procedure and skill. Therefore, this act and conduct of the treating doctor falls in gross negligence and deficiency in service. Thereafter, the Complainant went to Apex Hospital, Jalandhar on 26.07.2019 for medical treatment, where Dr. Harleen Kaur examined the Complainant by examining the previous scanning reports dated 12.07.2019 where it is mentioned “High resistance flow in uterine arteries” and on the report of TSH dated 02.09.2019 and on the basis of the said report the doctor conducted Urine, Thyroid, Blood and scanning examination of the complainant. However, in the TSH Thyroid test of the Complainant, it is mentioned that TSH Level of the Complainant are 9.70, which is exceptionally very high. It is also shows high resistance flow in uterine arteries. The doctor told the Complainant that since no previous treatment was given to the Complainant for above said high resistance flow in uterine arteries and also TSH therefore, Cesarean operation for the delivery of the Complainant is very much necessary within 24 hours otherwise there is a risk of loss of the life of the Complainant and her child. It is common experience that when a patient goes to a private clinic, he go by the reputation of the clinic with a hope that proper care will be given by the hospital authority. It is not possible for the patient to know that which doctor will treat him. When a patient is admitted to a private clinic or hospital, which engage the doctor for the treatment. Thereafter the Complainant went to OP No. 5 for medical treatment at DMC Hospital Ludhiana and there the OP No. 5 admit the complainant in the hospital on 27.09.2019 and there the OP No. 5 conducted blood test, urine test etc. The treating Doctor Ashima Taneja operated the Complainant delivery and a premature female child of 7 ½ months was born. However, the condition of the female child was very serious and due to this the said child was admitted in NSCU under ventilator. The complainant was admitted from 27.09.2019 to 04.10.2019 and her child was admitted there from 27.09.2019 to 05.10.2019. The complainant was discharged from the hospital on 04.10.2019. The child was died on 05.10.2019. The dead body of child was handed over to complainant on 06.10.2019. The doctor took specimen of blood and Heparinized Bone Marrow Peripheral Blood and sent for test report to find out whether the new born child suffered from any disorder or suffered due to wrong treatment given by the OPs No. 1 to 4. The complainant has paid huge amount which includes doctors fees, operation fee, medicine. Medical tests, scanning, room rent to OP No. 5. The OP No. 5 has not sent the proper quality metaphase due to which the test for the reason of serious disease cause to the newly born child and this was reflected in the report of Dr. G. Renjni Nambiar and Dr. Sarjana Dutt dated 09.10.2019. As per the report dated 09.10.2019, “the sample was washed and processed for karyotyping, but analyzable metaphase were not available for karyotyping. The Karyotype report is not possible due to non availability of quality metaphases. Paucity of proliferating blast cells provided may be considered as a possible reason”. The Complainant wants to explain the true facts of taking the specimen of blood. From above facts it can be easily established that proper procedure was not adopted as per the instructions and rules for taking the specimen of blood of the complainant. Wrong assurance was given to the Complainant about the factual position and status of the child. It is established facts that once a patient is under treatment admitted in the hospital, it is the responsibility of the hospital to provide best service to the patient. If it does not provide then the hospital cannot take shelter under the umbrella of technical grounds. In fact, once a complaint is filed claimant has successfully discharge the initial burden to hospital. Thus, there is deficiency, negligence, unfair trade practice practiced by OP No. 6 Dr. Kamaldeep Arora, Consulting doctor NSCU. The treating Doctor Kamaldeep Arora Consulting doctor NSCU-II has not exercised Academic and professional skill properly. It is established law that doctor will be guilty of negligence if he has not treated in accordance with the procedure accepted by the respective body of medical man. In present case treating doctor has not exercise the skill and knowledge by sending the specimen of bone marrow of new born child. In the present case there is negligence and deficiency of service which may arise because contractual liability stand when treating doctor failed to exercise with be reasonable care and reasonable skill. It is established that gross medical mistake always result in finding of negligence. In present case the use of wrong treatment lead to liability because negligence either subjectively careless state of mind, or objectively carelessness of conduct. Therefore, sequences of all these facts and circumstances amount to negligence and deficiency in service for treatment for which the complainant has to spent a huge amount and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund Rs.4,00,000/- spent by the complainant including interest @ 18% per annum from the date of deposit till the date of refund. Further award compensation/punitive damages quantified to Rs.21,00,000/- from OPs No.1 to 6 i.e. Rs.7,00,000/- from OPs No.1 & 2 Rs.7,00,000/- from OPs No.3 & 4 and Rs.7,00,000/- from OPs No.5 & 6 including the unemployment and close of the salon and Rs.50,000/- as litigation expenses.
4. Notice of the complaint was given to the OPs and accordingly, OPs No.1 and 2 filed its joint written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form, being false, frivolous and without any merits. It is further averred that the complainant be estopped from filing the present complaint by her own act, conduct, latches, omissions and commissions. It is further averred that no cause of action has ever accrued to the complainant to file the present complaint against the OPs No.1 and 2. It is further averred that the complainant has concealed the true and material facts from this Commission, whereas the real facts are that the answering OP i.e. Dr. Savita Rani is a qualified Doctor and has obtained her Degree of Bachelor of Ayurvedic Medicine and Surgery (B.A.M.S.) from Dayanand Ayurvedic College, Jalandhar then affiliated to Guru Nanak Dev University, Amritsar. Moreover the OP No.1 is a registered medical practitioner, duly registered under Board of Ayurvedic and Unani System of Medicine, Punjab, Chandigarh. The answering OP is running a clinic under the name and Style of Nagpal Clinic for providing her professional medical services and skills to the patients. All the academic and professional qualification certificates of the answering OPs are displayed well in the clinic of the answering OPs so that any patient who may visit the clinic of the answering OPs, he/she may become aware of the professional medical qualifications of the treating Doctor i.e. Dr Savita Rani running clinic in the name and style of Nagpal Clinic. The complainant visited the clinic of the answering OP in the month of March, 2019 and at that time, the complainant was well aware of the educational as well as professional medical qualifications of the answering OP. The complainant came to seek the medical assistance and her medical treatment in pregnant condition in the month of March, 2019 and the answering OP got her treatment according to principles of her Medical Discipline of her qualification till 01 august, 2019. On the last visit of the complainant i.e. on 01- 08-2019, the answering OP suggested the complainant to seek further treatment from any Hospital where there is all facility of admission of patients and facility of delivery of pregnant ladies under medical supervision of a qualified doctor and hence answering opposite party referred the complainant to Dr. Anshu Pal, Doaba Hospital, Jalandhar and after that, the complainant was never visited to the answering opposite party and as such the answering OP not provided any medical assistance to the complainant after 01.08.2019. However, whenever the complainant visited the answering OP, the answering OP recorded her visit and diagnosis in her OPD register along with treatment provided to the complainant. In lieu of her services, the answering opposite party only charged Rs.50/- as consultation fee per consultation visit and the charges for the medicines provided to the complainant. Except these charges, the answering OP has not charged anything else from the complainant. During the course of the treatment of the complainant under guidance of the answering opposite party, the complainant never felt any adverse symptoms nor any symptoms were told by the complainant /patient to the OP No.1. The complainant was diagnosed clinically on basis of her symptoms told by her which were concluded according to principles and practices of BAMS medical professional course. However since the answering opposite party is only running an OPD clinic, which is in the knowledge of the complainant, and on 01.08.2019 after relying on condition as well as medical reports, the answering opposite party advised the patient to seek further medical assistance and treatment from Dr. Anshu Pal, Doaba Hospital, Jalandhar because they were well equipped and authorized to supervise and treat the deliveries of the pregnant patients. The answering OP has nothing to gain from the treatment of the complainant nor there was any negligence on the part of the answering OP. After 01.08.2019, the complainant never visited the clinic of answering OP as such the complainant got her further treatment from the Dr. Anshu Pal, Doaba Hospital, Jalandhar hence there was neither any malafide nor any negligence on the part of the answering OP. It is further averred that the complainant is self interpreting and misinterpreting the medical treatment given to her and alleging false facts which are vexatious to the knowledge of the complainant and under the garb of these twisted and misinterpreted facts, the complaint intends to seek false relief from this Commission. It is further averred that the complaint is bad for mis-joinder and non-joinder of the necessary parties. On merits, it is admitted that the complainant was pregnant and she visited the clinic of answering OP, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
5. OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable against the OP as there is no deficiency in service or negligence on the part of the answering OP. It is further averred that the complainant is not a consumer as provided under the provision of Consumer Protection Act. It is further averred that the complaint is estopped by his own act and conduct, waiver and latches from filing the present complaint. The complainant has not come to the Commission with clean hands and has not imparted the correct facts before the Commission. He has filed the present false complaint against the answering OP. The complaint is based on conjectures and surmises without ascertaining the facts mentioned in the complaint. Further, it will be in the fitness of things to mention here that complainant has concocted an altogether false and fabricated story in order to malign the position and reputation of answering OP. The only motive to involve the answering OP is to extract money from him. It is alleged in the complaint that complainant was not treated properly by the OP No.4 Dr. Anshu Paul who is serving in the Hospital of the answering OP No.3 rather the said allegations are absolutely false and incorrect. In fact Dr. Anshu Paul is qualified Doctor and for the last 8 years, and have been working in Doaba Hospital, Jalandhar and she also hold experience of 5 years working in PGIMS, Rohtak, which is a research institute and medical college. The complainant visited to the hospital for the first time in OPD on dated 24.08.2019 for general checkup alongwith her Ultra Sound Report already done at Shree Scan Centre, SUS Nagar, Jalandhar, which indicated her high resistance in Uterine Flow which shows that Patient may develop PIH i.e. Pregnancy Induced Hypertension. On examination, patient was stable except mild hypertension which usually happened to pregnant women having such ultra sound finding report and her medication was started for the said problem. The foetal growth and foetal heart beat was also normal and there was no other from the complainant. However, the patient was also advised to take complete rest, avoid intake of slat, regular B.P. monitoring and to report in case of uncontrolled B.P., headache, swelling or any other additional symptom. Thereafter, few routine blood tests examination were conducted in our hospital and her blood was sent for thyroid test to outside lab and the patient was advised to come after one day i.e. 24 hours to collect the report and if required then the revise treatment may be done. But the patient reported after ten days to collect report and at that time thyroid test report was shown to be i.e. TSH=4.2, and no medication was started as reference no.2 clearly indicates that thyroid medicine is not be started at this level and the patient was advised to repeat the thyroid test after 3 weeks and in case the level rises then she has to take medicine for the same. The copy of the said treatment file is already on the file which clearly shows that no wrong treatment was done at the end of our doctor. After this, the patient never approached to our hospital for her treatment and never followed the treatment of Dr.Anshu Paul and there was no contact with the patient. It is worth to mention here that the as per the complaint of the patient she also got her treatment from various hospitals after our hospital. It is quite evident of the treatment of the said hospitals that the similar treatment was done to the patient by the said hospitals. It is very much required to take into consideration their treatment also, to confirm if there was any lacuna or deficiency in their treatment or not. As per the allegations in the present complaint, that the doctor Anshu Paul had prescribed wrong medicine, but the same is absolutely false and wrong. The treatment written in my OPD file is according to international guidelines. However, it is seen in our clinical practice that during pregnancy with hypertension, patient's BP can rise anytime from mild to severe even after treatment and can lead to decreased in blood supply to the fetus and growth retardation and ultimately preterm delivery. According to patient allegation that unnecessary money was charged from her, it is hereby stated that patient visited me in OPD only twice for which she was charged Rs.200/- only every time. Few blood test which were done which might cost her around Rs.900/- and no further payment was taken from the patient. After all these facts and evidence on the record, it is quite evident that there is sheer negligence on the part of the patient who did not follow the treatment and advise as per the guidelines and now she is unnecessarily causing mental harassment to me for her own fault and is trying to defame me for some her selfish purpose and interest. It is further averred that there is no privity of contract between complainant and answering opposite party and as such complainant has got no right to file the present complaint against the answering OP. The complaint is bad for mis-joinder and non-joinder of parties. The matter in dispute is complicated and require full length of evidence and their cross examination which does not falls within the ambit of this Commission. The present complaints just in order to harass and to extract money from the opposite party have filed the present complaint. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
6. OP No.4 filed its separate written reply and contested the complaint by taking preliminary objections that there is no cause of action available to the complainant to file the present complaint against the answering OP No.4. Nor, there is any kind of negligence or deficiency in services on the part of OP No.4. In-fact the present complaint has been filed by the complainant just to extract money from the answering respondent by leveling vague allegations. Hence, the present complaint is liable to be dismissed with exemplary cost. It is further averred that all the allegations leveled by the complainant against the OP No.4 are totally false and concocted one. In fact the complainant has leveled bald allegations of medical negligence against the answering respondent without any opinion of a Medical expert. In-fact all the alleged allegations leveled by the complainant are quite defamatory and the same seems to have been leveled only to malign the reputation and position of answering OP in the eyes of general public or with malafide motive to extract money from the answering OP. It is not a matter of boasting but it is necessary to mention here that the answering OP No.4 is a qualified Doctor and is having an experience of 5 years working in research institute and medical college i.e. PGIMS, Rohtak, and now she has been working in Doaba Hospital, Jalandhar for the last 8 years and there has never been any allegation of committing of any negligence by her in her services. Hence the answering OP No.4 reserves her right to file a separate complaint of Defamation against the complainant for leveling false allegations against her, before the competent court of law. It is further averred that as per the amended provisions of Consumer protection Act, no such complaint is maintainable under Section 12 of the Consumer Protection Act, hence on this ground alone the same is liable to be dismissed. It is further averred that the complainant does not fall within the definition of consumer as provided under the Consumer Protection Act. The complaint is estopped by his, own act, conduct, waiver and latches from filing the present complaint. The complainant has not come to the Commission with clean hands and has concealed the true and material facts from this Commission. The present complaint is based on conjectures and surmises and is liable to be dismissed. The complaint is bad for mis-joinder and non-joinder of necessary and proper parties. The matter in dispute is complicated and require full length of evidence and their cross examination which does not falls within the ambit of this Commission. On merits, it is admitted that the complainant was pregnant, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
7. OPs No.5 & 6 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint is bad due to non-joinder of the necessary parties. Dayanand Medical College & Hospital, Ludhiana is being run and managed by the Managing Society known as Managing Society of Dayanand Medical College & Hospital, Ludhiana, but the complainant has not impleaded the said Managing Society as necessary party to this complaint. Further the complainant alleged medical negligence and deficiency in service on the part of the answering OPs by relying upon the report dated 9/10/2019 of Dr. G. Renjini Nambiar, Sr. Consultant Director Cytogenetics and Dr. Sanjana Dutt, Mol. Biology and R & D of CAP Accredited, College of American Pathologists. But she purposely not impleaded any of the doctors by whom the report dated 09/10/2019 was given and rather wrongly interpreted the report suitable to her without any base and as such due to non-impleadment of Dayanand Medical College & Hospital Managing Society and the both doctors by whom the report dated 09/10/2019 was given, the present complaint is bad for non-joinder of the necessary parties and as such is liable to be dismissed. It is further averred that no expert opinion/medical literature has been annexed by the complainant to substantiate her false allegations of medical negligence leveled against the answering opposite parties. In the absence of any expert opinion/medical literature, the bald allegations of the complainant are not ipsi-dixit sufficient to prove the case of medical negligence against the answering OPs. It is further averred that the present complaint is the result of misuse of the process of law and the answering OPs have been roped into the present false and frivolous litigation unnecessarily just to harass them and to fetch money by illegal means. The answering OPs save the life of the complainant by giving the best possible treatment and care according to the standard medical norms of the medical science, but still the complainant dragged the answering opposite parties in the present uncalled, false and frivolous litigation by misusing the process of law. The complainant has failed to specify as to what ought to have been done and what has not been done by the answering OPs while treating the baby of Sujata. In the absence of any such 20particulars, no case of medical negligence is made out in rendering the treatment to the baby. The complaint is thus liable to be dismissed on this score only. No basis of damages has been disclosed by the complainant. It is settled principle of law that basis of damages have to be disclosed. The complainant has failed to disclose the basis of damages as to how the same have been calculated and in the absence of such detail, the complaint is straightway liable to be dismissed. It is further averred that the complicated question of law and facts are involved in the present complaint, which cannot be decided in the summary proceedings before this Commission. The controversy in dispute requires voluminous oral and documentary evidence, which can only be led in the Civil Court and examination and cross examination has to be conducted for elucidating the true facts, which can be done only before the Civil Court. Therefore the complaint is liable to be rejected on this ground only. It is further averred that the present complaint is speculative imaginary and is based on surmises, conjectures and is not maintainable against the answering opposite parties and as such liable to be dismissed qua the answering OPs. On merits, it is admitted that the complainant got admitted with the OP No.5 in an emergency condition and then she was referred to OP No.5 by Dr. Sham Sunder of Singla Nursing Home, Ludhiana on 27.09.2019 and she was admitted under Dr. Ashima Taneja, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
8. OP No.7 filed its separate written reply and contested the complaint by taking preliminary objections that since the present complaint is not maintainable against the answering OP as the complainant is not a consumer qua the answering OP, as such, the present complaint is liable to be dismissed. It is further averred that since there is no privity of contract between the complainant and the answering OP. The answering OP is not a necessary party in the present complaint, as such, the present complaint is liable to be dismissed. It is further averred that since there is no deficiency in service, unfair trade practice and no medical negligence on the part of the OPs No.5 and 6, as such, the present complaint is liable to be dismissed. Without admitting any liability, it is submitted that the answering OP No.7, has issued the insurance policy to the OPs No.5 and 6 vide Policy No.2006002719P106310789 for the period of 09.08.2019 to 08.08.2020 under the Professional Indemnity Doctors Policy for indemnifying the insured in the claims arising out of bodily injury and/or death of any patient caused by/or alleged to have been caused by error, omission, or negligence in professional service rendered or which should had been rendered by the insured. In the present complaint, there is neither any error nor any omission or negligence on the party of the opposite party No.5 and 6, as such, there is no liability of opposite party No.7, as such, the present complaint is liable to be dismissed. It is further averred that this Commission has got no jurisdiction to entertain, try and decide the present complaint as such, the present complaint is liable to be dismissed. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
9. Rejoinder to the written statements of the OPs filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
10. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
11. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant and counsel for the OPs No.5 & 6 very minutely.
12. The Ld. Counsel for the complainant has submitted that there is medical negligence on the part of the doctors, who are OPs, in the treatment given to the complainant. He has submitted that the complainant got pregnant in the month of February, 2019 and in the month of March, 2019, she went for regular check-up in Nagpal Clinic, being run by Savita Nagpal/OP No.1. She assured that she is professionally competent and started treatment of the complainant. On 18.05.2019, the OP No.1 advised the complainant to get the scanning and get other tests conducted to confirm that the pregnancy is normal. Again the scanning was done on 12.07.2019. There was a problem in the scanning report, but the doctor/OP No.1 ignored the report and did not give proper medicine nor treated the problem shown in the scanning report. He has further submitted that even the OP No.1 did not care when the complainant told the doctor the problem of increasing weight day by day and pain in whole body in short period. Even the doctor did not advise to get the thyroid test and kept the complainant in darkness. She was not properly qualified as she is not gynecologist nor was having any medical degree to handle such cases medically. These are the violation of the guidelines and notification of Medical Council of India for professional conduct. She was not having proper skill.
13. He has further submitted that the complainant was referred to Doaba Hospital on 24.08.2019 when the condition of the complainant deteriorated. The OP No.4 got all the investigation done regarding the blood test and thyroid test. The thyroid test was abnormally higher i.e. 4.21. After few days, the TSH level increased from 4.21 to 9.7. No medicine of thyroid was given to the complainant by OP No.3 and OP No.4. OP No.3 and OP No.4 ignored this problem, which resulted in further deteriorating condition of the complainant. He has further submitted that thereafter the complainant went to Apex Hospital for medical treatment where doctor Harleen Kaur examined her and told the complainant that thyroid is very high, therefore she suggested for the Caesarian operation of the complainant within 24 hours, otherwise there was a risk of loss of life of complainant and her child. After hearing this, the complainant visited the DMC Hospital for treatment. The OP No.5 admitted the complainant on 27.09.2019. After conducting the tests, a pre-mature child of 7 ½ months was born. The condition of the child was very critical and she was admitted in NSCU under ventilator. The complainant remained admitted from 27.09.2019 to 04.10.2019 and her child was admitted from 27.09.2019 to 05.10.2019. He has further submitted that the female child died on 05.10.2019. There is a gross negligence on the part of the OP No.5 as the sample of blood and Heparinized Bone Marrow Peripheral Blood of the child was taken and sent for test to know any disorder due to wrong treatment, but the proper procedure was not followed at the time of taking the sample due to which the proper report was not given, therefore there is negligence and deficiency in service by all the doctors as the doctors did not take reasonable care in treating the complainant which resulted in the death of the child of the complainant. Request has been made to allow the complainant and to grant the compensation to the complainant. The complainant has relied upon a case 1966 CPJ 1 (SC) 196, titled as ‘Poonam Verma Vs. Ashwin Patel Others’ and further relied upon a case 2010 AIR (SC) 1162, titled as ‘Dr. S. K. JhunJhunwala Vs. Mrs. Dhanwant Kaur’.
14. The Ld. Counsel for the OPs No.1 and 2 submitted that there is no negligence nor deficiency in service on the part of the OPs No.1 and 2. The OP No.1/Dr. Savita Nagpal is a qualified doctor and has obtained her degree of BAMS from Dayanand Ayurvedic College, Jalandhar. It has been admitted that the complainant visited the clinic in the month of March, 2019. It has been submitted by the counsel that at that time the complainant was fully aware about the professional qualifications of the OP No.1. The OP No.1 treated the complainant as per the principles of her medical discipline of her qualification till 01 August, 2019 and on 01.08.2019 the OP No.1 suggested the complainant to seek further treatment from hospital where there is all facility of admission of patients and facility of delivery of pregnant ladies under medical supervision of a qualified doctor is available. She was referred to Dr. Anshu Pal, Doaba Hospital Jalandhar, thereafter, she never visited the OP No.1 & 2. He has further submitted that during the course of treatment, no adverse symptoms were felt by the complainant nor any symptoms as alleged were ever told to the OP No.1 by the complainant. He has further submitted that the report of the scanning was told to the complainant and she was informed about the clinical scan report after correlating the same with clinical diagnoses and symptoms. He has referred the opinion in the scanning report. He has denied that the OP No.1 has ever ignored the report of scan and has not treated her properly. He has further submitted that the OP No.1 suggested the complainant that during the course of pregnancy, a minor increase in the weight is normal and the symptoms of increase in the weight never show existence of hypothyroid as alleged by the complainant. No report was ever ignored rather she was given proper medicine which was required for her during the course of pregnancy as per her condition. The complainant herself is a negligent. She did not visit the hospital immediately on 01.08.2019 when she was referred to Doaba Hospital for further treatment. Therefore, there is no deficiency and negligence on the part of the OP No.1 & 2. Request has been made to dismiss the complaint qua her. He has referred the documents produced by her showing her qualification and notification making her eligible for treating the pregnant women and the medical record of the complainant to show that there is no negligence on the part of the OPs No.1 & 2.
15. The counsel for OPs No.3 & 4 has submitted that the OP No.4 is qualified doctor and no negligence was ever committed by her. It has been admitted by the OP No.4 that on 24.08.2019, the complainant came for general checkup alongwith her ultrasound report already done at Shri Scan Centre, SUS Nagar, Jalandhar. At the time she was having a pregnancy of 6 months. The Ld. Counsel has submitted that at the time of her visit, she was found stable, but was having mild hypertension which usually happen to pregnant women having such ultrasound finding report. As per the report of ultrasound, there was a high resistance in uterine flow, which shows that patient may develop PIH i.e. Pregnancy Induced Hypertension. She was advised Renal Function Test and Thyroid Test. She was informed that she is hyper sensitive and she was to manage for that. Immediately the medication was started for the problem. She was further advised to take complete rest and to monitor the BP and she was further advised to report in case of uncontrolled BP, Headache, Swelling or any other additional symptom. She was also advised to visit after 24 hours after getting the test conducted, but she herself did not turn up for follow up rather reported after 10 days i.e. on 02.09.2019. The medicine of thyroid was not started as as per the reference No.2, the thyroid medicine is not to be started at this level and she was advised to repeat the test after 3 days and in case the thyroid increases, then she has to take the medicine for the same. She was advised medicines for other problems. Thereafter, the complainant never approached the OP No.4 nor followed the treatment advised by the OP No.4. He has further submitted that as per clinical practice during pregnancy with hypertension, patient’s BP can rise anytime from mild to severe, even after treatment and can lead to decrease in blood supply to the fetus and growth retardation and ultimately preterm delivery is also possible. He has further submitted that no extra fee was ever charged by the OP No.4 from the complainant. It is the complainant, who was negligent as she never paid any heed to the advice of the doctor. Request has been made to dismiss the complaint as there is no deficiency or negligence on the part of the doctor/OP No.4. He has referred the medical record of the complainant and has submitted that the prescription of medicine clearly shows that there was no negligence on the part of the OP No.4 as the required medicine was given to her.
16. The counsel for the OPs No.5 & 6 has submitted that there is no medical negligence on the part of OPs No.5 & 6. It is admitted that the complainant was admitted in their hospital. Dr. Ashima Taneja conducted the LSCS (Lower Segment Caesarian Section) of complainant. The complainant has wrongly alleged that OP No.7 did not exercise his skill and knowledge in sending the sample of bone marrow of new born child as proper procedure was not adopted due to which the disease caused to newly born child was not detected. He has referred the ultrasound report of the complainant dated 12.07.2019. As per opinion of the doctor, he was having bilateral uterine arteries, Umbilical artery diastolic flows are established. He has further referred ultrasound dated 26.09.2019 and submitted that as per this report the Imniotic Fluid is less than normal and the umbilical artery shows reversal of diastolic flow, when she was having 28 weeks and 4 days of pregnancy. This means that there was a disproportionate foetal growth, wave in the ductus, venosus was absent and there was a cord around neck of the baby. With all these conditions, she was admitted in the hospital of OP No.5. There was a history of high BP since one month also. Caesarian operation was conducted and the baby having 1095 gms weight was born premature. The treatment was given as per the standard medical norms of medical science and inspite of best efforts and treatment, the child could not be saved. He has further submitted that during the treatment of the baby, it was found that there were features of down syndrome (Trisomy 21) and in view of that the Karotyping test was to be conducted and for this purpose, a sample of peripheral blood from the bone was taken. He has referred the definition of the Karotyping test as per Medical Literature and has also referred the procedure to be adopted while taking the sample from the vein of the baby. He has further submitted that for the purpose of Karotyping test, the sample of the bone marrow or the peripheral blood may be taken, but in the case of the complainant, the baby was born with hypoxia with brain sparing effect, reversal of diastolic flow in umbilical artery, decreased foetal movement since two days, down syndrome of the baby and low birth weight of the baby, it was not possible to take the sample of bone marrow, which is to be taken from the internal part of the bone. Therefore, it was decided to take the peripheral blood from the vein of the baby. The same was to be taken in a non-invasive manner. Proper procedure was followed for conducting the karotyping analysis. No negligence was there on the part of the OPs No.5 & 6. Even the complainant has not produced on record any expert evidence to show that the wrong treatment was given to the baby by the team of the doctors of OP No.5 or any negligence was there in drawing the sample of peripheral blood. No medical literature has been produced by the complainant. He has relied upon the case, titled as ‘Dr. Surinder Goel Vs. Surjit Singh and Ors.’ 2015 (1) CLT 385. The OPs No.5 & 6 have produced on record the expert evidence in the shape of affidavit of Dr. Barjinderjet Kaur Dhillon and even as per Medical Literature the proper treatment was given to the baby and the complainant. Therefore, there is no medical negligence nor deficiency in service on the part of the OPs No.5 & 6.
17. The complainant has alleged the gross medical negligence on the part of the doctors i.e. who are OPs, in the treatment given to the complainant. The grouse of the complainant is that the OP No.1/Dr. Savita Nagpal was not having adequate knowledge and she did not treat her well nor given any medicine and has alleged the unfair trade practice and the deficiency in service on the part of the Dr. Anshu Paul and the doctors of DMC, Ludhiana during the medical treatment of the complainant as well as her child. The complainant has produced on record the number of documents i.e. medical record of the clinics of all the doctors to show the condition of the complainant. She has also produced on record admission record in DMC, Ludhiana, discharge summary, reports of CT Scan and other tests conducted during his admission in DMC, Ludhiana and the Lab when she was got treated by Dr. Anshu Paul/OP No.4 and Dr. Savita Nagpal/OP No.1. Similarly, she has also produced on record the bills of pharmacy of the drugs purchased by her. She has alleged the gross medical negligence on the part of all the OPs in treating her as well as her child.
18. The Hon’ble Supreme Court has defined the medical negligence in the case, titled as“Jacob Mathew Vs. State of Punjab and Anr.” in 2005 (6) SCC 1, wherein his Lordship held as under:-
“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.”
So, as per the law laid down by the Hon’ble Supreme Court, so long as the doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence, meaning thereby that the doctor must be possessed with an adequate qualification and he must be capable of doing the treatment. As per the law laid down by the Hon’ble Supreme Court, a simple lack of care, an error of judgment or an accident is not proof of negligence. The complainant has specifically alleged that the OP No.1 was not having adequate knowledge of treating the pregnant women as she was not well qualified and instead of referring the complainant to some other doctor, she assured her that the condition of the complainant is perfect and continued in giving the medicines to her. It has been held by the Hon’ble Supreme Court in a case titled as ‘Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others’ that ’the patients by and large are ignorant about the disease or the side or the adverse affect of a medicine. Ordinarily the patients are to be informed about the admitted risk, if any. If some medicine has some adverse affect or some reaction in anticipated, he should be informed thereabout.’
19. It is admitted and proved fact that the OP No.1/Dr. Savita Nagpal is having degree of BAMS from Dayanand Ayurvedic College, Jalandhar. It is also admitted and proved that the complainant visited the clinic in the month of March, 2019. The contention of the OP No.1 is that the complainant was fully aware about the professional qualification of the OP No.1 and despite knowing her professional qualification, she opted to get the treatment from the OP No.1. As per law laid down by the Hon’ble Supreme Court that the patients are ignorant about the disease or side or adverse affect of a medicine or treatment, the patients should be informed about everything by the doctor. Mere knowing that the OP No.1 is a BAMS doctor, is not sufficient for the patient to know that the doctor is capable of treating the complicated cases or pregnant women like the complainant. The OP No.1 has produced on record the medical record of the complainant of her hospital i.e. OP No.2. Perusal of the medical record of OP No.2 produced by the both the parties i.e. complainant as well as OPs No.1 & 2 show that the complainant visited the clinic of OP No.2 as per Ex.C-6, but no date has been mentioned on it. The ultrasound of the complainant was got conducted on March 27, 2019. As per the report of the ultrasound Ex.C7 dated 27.03.2019, the complainant was having the pregnancy of six weeks two days and it was normal ongoing pregnancy. Then again ultrasound was conducted on 18.05.2019 when she was pregnant of 13 weeks 5 days and was having normal pregnancy. In Ex.C-6, there is a reference of scanning dated 18.05.2019 and the capsule Fercee and Tablet Intaced was prescribed for the complainant. Again on 12.07.2019, the ultrasound was conducted and she was having pregnancy of 19 weeks 3 days and as per the report of the scan, there was a high resistance flow in uterine arteries. High resistance flow in uterine arteries means that the complainant was having PIH (Pregnancy Induced Hypertension). The grudge of the complainant is that when she was getting treatment from OP No.1, she informed the doctor that her weight is increasing day by day, but she did not get her thyroid test conducted and did not bother about the increasing weight and the problem she was facing that she was unable to walk and she was suffering pain all over body. As per Ex.C-6, the weight of the complainant on 20.05.2019 was 70 KG, on 01.07.2019 was 75 KG, meaning thereby that she got put up the weight of 5 KGs within two months. As per the written statement of the OP No.1 minor changes in weight is normal, but as per the record Ex.C-6 the increase of weight of 5 KG in just two months is not a normal thing nor it is a minor increase as alleged by OP No.1. There was no treatment mentioned nor any medicine was prescribed for the swelling which the complainant allegedly was having on her face and body. Even there is no reference of the complaint of the complainant regarding swelling, pain in the body. When there was a high resistance flow report of ultrasound on 12.07.2019, the complainant visited the doctor on 01.08.2019 and her weight was 78 KG, meaning thereby that there was an increase of 3 KGs weight in one month. After seeing the report, the doctor did not mention anything in her treatment chart rather gave Hepatitis-B injection on 19.08.2019 as per Ex.C6 and on 01.08.2019 second dose of TT was given, but no medicine was prescribed for swelling and pain in the body or of high resistance flow nor it was mentioned in the treatment chart by the doctor.
20. The OP has alleged that she was well qualified and she had undergone the training and she was eligible for treatment of the pregnant women. Perusal of the Ex.OP1/2 shows that she was BAMS from Dayanand Ayurvedic College, Jalandhar, but in this certificate nothing has been mentioned that she can treat the pregnant women i.e. she is capable of giving treatment as a gynecologist and she can give the allopathic medicine to the patients. She has not produced on record any document to show that she was registered with All India Medical Council and she was allowed to practice for giving allopathic medicine. The OP No.1 has produced on record the notification regarding practice of gynecology and obstetrics and diagnostic ultrasonography by ISM Graduate dated 10.06.2004, which is Ex.OP1/3. Even if it is assumed and considered that BAMS doctor i.e. OP No.1 was eligible for treating the complainant, but she should have taken the proper care while treating the complainant by following the practice acceptable to medical profession of that day as laid down by the Hon’ble Supreme Court in a case, titled as “Jacob Mathew Vs. State of Punjab and Anr.” in 2005 (6) SCC 1, wherein his Lordship held as under:-
“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.”
The complainant should be informed about the problems which she was facing. The complainant has alleged that she was asked to go to Doaba Hospital, Jalandhar i.e. OP No.3, but in Ex.C-6 there is no reference that the complainant is advised to visit some other doctor even after considering the report of ultrasound of the complainant dated 12.07.2019, in which there was a clear cut mention of the fact that the complainant is suffering from PIH as alleged by the OP No.1 and OP No.2 in written statement. It was her duty and responsibility as per norms of medical profession and the law laid down by the Hon’ble Supreme Court in a case titled as ‘Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others’, but she has not adopted the norms and did not follow the practice acceptable to medical profession. It has been held by the Hon’ble Supreme Court in a case titled as ‘Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others’ that ‘Medical negligence-Criminal medical negligence and Civil Medical negligence - Deficiency Service A patient admitted in hospital who had rashes all over her body. It was a case of dermatology. The doctor did not refer her to dermatologist- Instead he prescribed "Depmedral" in higher dose beyond maximum recommended dose without foreseeing its implications. Condition of patient deteriorated and died after some days of treatment. Held, it was medical negligence on part of Doctor and hospital but Doctor not guilty of criminal negligence under Section 304A Indian Penal Code. It is deficiency of service. Case remitted to consumer commission for determination of quantum of compensation. So, as per the law, she did not explain the report of scan to the complainant nor referred her to the expert doctor. She has not proved on record any document to show that she was well qualified and undergone training for treating such complicated cases when the complainant was having high resistance flow nor she prescribed any medicine for PIH/high resistance or increase in weight. Therefore, there was a medical negligence on the part of the Dr. Savita Nagpal/OP No.1. It has been held by the Hon’ble Supreme Court, in a case titled as ‘S. K. Jhunjhunwala Vs. Mrs. Dhanwanti Kaur & Anr.’ Decided on 01, October, 2018 that ‘Any physician would not assure the patient of full recovery in every case nor a surgeon can give a guarantee that the result of surgery would be beneficial. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what the entire person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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. So, as per the law laid down by the Hon’ble Supreme Court the OP No.1 and 2 did not act diligently nor acted with reasonable competence nor she was possessed of the requisite skill she professes to have possessed for treating such complicated cases. Therefore, there is medical negligence on the part of the OPs No.1 and 2.
21. The complainant visited Dr. Anshu Paul on 24.08.2019. On the prescription of the doctor and medical record of the complainant being treated by Dr. Anshu Paul Ex.C-13, there is a special reference of the fact regarding the report of the ultrasound i.e. high resistance flow. She was given the medicine accordingly and she was put on Tablet Ecosprin. She was advised to follow up after three weeks i.e. on 18.09.2019. The test of thyroid was got conducted by the OP No.4. As per the report of the Thyroid she was having the value of 4.21 of TSH ultrasensitive and as per this report, the required value of TSH was of 0.3 to 3.0 in 3rd Trimester, which, the complainant was going through. The OP No.4 has referred the medical literature Ex.OP4/2 showing the value of the TSH in 3rd Trimester as from 0.74 to 5.7. As per the guidelines recommended in 2011 by American Thyroid Association ‘the interpretation of thyroid function in pregnancy be based on trimester specific reference ranges as defined in populations with optimal iodine intake. In recognition of the fact that there may not be appropriate trimester-specific reference intervals for individual populations, they stated that the default TSH values should be 0.1–2.5 mIU/L (first trimester), 0.2–3.0 mIU/L (second trimester), and 0.3–3.5 mIU/L (third trimester).’ ‘The American Endocrine Society also quoted 0.1–2.5 mIU/L as the “normal range” for TSH in the first trimester and recommended thyroxine treatment for women with TSH >2.5 mIU/L in the first trimester or >3.0 mIU/L in the second and third.’ The European Thyroid Association had similar recommendations. The Endocrine Society recommended that TSH levels be maintained between 0.2<2.5 mU/L in 1st Trimester of pregnancy and between 0.3-0 mU/l in the remaining trimester. So, as per the required value and as per the guidelines issued by the Thyroid Association and the Medical Literature, the value of the TSH should be not more than 3.5 mLu/L. The doctor/OPs No.3 & 4 have stated in written statement that as per the report the thyroid was of the value of 4.21 and she was asked to get the test again after few days and if the thyroid would increase, they would recommend the medicine, but as per the recommendation and as per the guidelines, the medicine of thyroid should have been started when the same was increased on 02.09.2019 and as per the record, it was 9.70 on 26.09.2019. The same has been proved as Ex.C-8. No medicine of Thyroid was ever prescribed by the doctor OPs No.3 & 4 till 02.09.2019. Though, the other medicines required for the complainant in such a condition were prescribed by the OPs No.3 & 4. The contention of the OPs No.3 and 4 that the complainant visited their hospital once and thereafter she never visited, but this contention is against the record as as per Ex.OP4/1, she visited on 24.08.2019 then she visited on 02.09.2019. Though, she was asked for follow up on 18.09.2019, but she visited on 02.09.2019 even then no medicine of thyroid was prescribed by the doctor. So far as not considering the increase of the thyroid in the complainant’s situation, when she was having high resistance flow and was in 3rd Trimester of her pregnancy, proper care regarding thyroid was not taken. It has not been proved on record by the OPs that even if no medicine for thyroid was prescribed, there was no harm in non-prescribing the medicine of thyroid as it was not going to cause any damage either to the complainant or her child. So, there is a negligence and deficiency in service on the part of the OPs No.3 & 4 for not considering the report of thyroid and not providing proper treatment/medicine for thyroid.
22. It is admitted and proved that the complainant then visited the Apex Hospital from where as per the submission of the complainant she was referred to DMC Hospital, Ludhiana. The complainant visited the DMC Hospital when she was having the pregnancy of 32 weeks 3 days. She was having problem of decreased fetal movement for two days. As per Colour Doppler Report dated 29 September, 2019, it was a suggestive of foetal hypoxia with brain sparing effect and as per the discharge summary and medical record of the complainant of DMC Hospital, Ludhiana there was a decrease of fetel movement when she was admitted in hospital. The grudge of the complainant is that when the premature child was born, she was not taken care of nor the samples were properly taken to find out any disorder in the child. But perusal of the record produced by the OPs No.5 & 6 and the complainant show that premature baby was born seeing the condition of the complainant by way of Caesarian operation. As per report Ex.C-11 dated 26.09.2019, the age of the pregnancy was of 28 weeks and 4 days. The premature baby was born by way of Lower Segment Caesarian Section and the child was having weight of 1095 gms only. As per the medical record, the baby was having poor respiratory and was shifted to Neonatal Intensive Care Unit by the DMC Hospital, Ludhiana, but despite the treatment, the baby did not survive. As per the reports and submission of the OPs, during the treatment of the baby, it was found that there were features of down syndrome and it was decided to conduct Karyotyping test. The grudge of the complainant is that the Karyotyping test was not properly conducted nor the sample was properly taken. Even the report of the Karyotyping test was received late. As per the report of Chromosome analysis Ex.C-18 dated 09.10.2019, ‘the sample was washed and processed for karyotyping, but analyzable metaphases were not available for karyotyping. The karyotype report is not possible due to non-availability of quality metaphases. Paucity of proliferating blast cells in the sample provided may be considered as a possible reason’. In Ex.OP-6/4 i.e. the Medical Literature the procedure for Karyotyping test has been mentioned on page No.73 and 74. Thus, as per report there was no multification of growing cells in the blood. Therefore, the test could not be done due to the absence of the quality metaphases. As per the Medical Literature, the karyotyping test is a very notorious test. Risks are related to the procedure used in obtain sample. This test is to examine chromosomes in a sample of cells in order to indentify genetic problems as the cause of disorder of disease. This test was conducted just to see the disorder if any as there were symptoms of syndrome in the child. The OPs No.5 & 6 have produced on record the affidavits of the experts doctor Barjinder Kaur Dhillon and Dr. Punit Aulakh Punni. The complainant has not produced on record any expert opinion to rebut the opinion of the doctors Barjinder Kaur Dhillon and Dr. Punit Aulakh Punni nor has examined any expert nor has produced on record any medical literature to prove that the samples were taken negligently and no procedure was followed by the OPs while taking the sample. It has been held by the Hon’ble Supreme Court, in case titled as “C. P. SreeKumar (Dr.), MS (Ortho) v. S. Ramanujam” that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. The Hon’ble Supreme Court has held as under:-
“We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005]) 6 SCC 1: 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the fact probantia.”
It has further been held by the Hon’ble Supreme Court in case titled as “Martin F. D’Souza Vs. Mohd. Ishfaq”, that ‘A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & Others, AIR 1996 SC 2377, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.’
It has further been held by the Hon’ble Supreme Court in case titled as “Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and Others”, that when the respondent is charged with the negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment.
The complainant has not proved on record that how the samples should have been taken by the OP for conducting the karyotyping test. So, there is no deficiency in service and unfair trade practice on the part of the OPs No.5 & 6.
23. There is no privity of contract between the complainant as well as OP No.7. Therefore, no direction can be given to the OP No.7 regarding the payment of insurance, if any, but in the present case, the OP No.5 is insured with OP No.7 and no medical negligence has been found on the part of the OP No.5. Therefore, the complaint qua OPs No.5 to 7 is dismissed.
24. In view of the above detailed discussion, the complaint of the complainant is partly allowed against OPs No.1, 2 and 4 and dismissed against OPs No.3 & 5 to 7. The OPs No.1 & 2 are directed to pay a compensation of Rs.2,00,000/- to the complainant for causing medical negligence and OP No.4 is directed to pay Rs.50,000/- for acting negligent by not providing any treatment for increased thyroid. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
25. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
15.03.2023 Member Member President
