Haryana

StateCommission

A/399/2015

MINTESH AND ORS. - Complainant(s)

Versus

DR.AJIT DAHIYA AND ORS - Opp.Party(s)

RECEIVED FROM NCDRC,NEW DELHI

26 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Remand Appeal No:  399 of 2015

                               In

First Appeal No.3197 of 2007

Date of Institution:14.11.2007/22.04.2015

Date of Decision: 26.04.2016

 

1. Smt. Mintesh wife of late Shri Ramesh Kumar
2. Master Krishan (minor son)
3. Ms. Neha (minor daughter)

Both son and daughter of late Shri Ramesh Kumar, through their mother and natural guardian Smt. Mintesh, Residents of Village Tajpur, Tehsil and District Sonipat.

                                      Appellants/Complainants

Versus

1.      Dr. Ajit Dahiya c/o Bharat Hospital, Delhi Road, Sonipat.

2.      The Divisional Manager, Oriental Insurance Company Limited, Divisional Office, Atlas Road, Sonipat.

3.      Dr. Shiri Krishan @ Shiri, RMP having shop at Village Tajpur, Tehsil and District Sonipat.

                                      Respondents/Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri A.K. Singal, Advocate for appellants.

Shri Rupinder Thakur, proxy for Shri Vikram Punia, Advocate for respondent No.1.

Shri D.C. Kumar, Advocate for respondent No.2.

Shri Sansar Kundu, Advocate for respondent No.3.

 

O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This appeal has been preferred against the order dated October 19^th, 2007 passed by District Consumer Disputes Redressal Forum, Sonipat (for short the District Forum) whereby Complaint No.102 of 2005 was dismissed.

2.      Complainants/appellants, filed complaint under Section 12 of the Consumer Protection Act, 1986 averring that Ramesh Kumar (since deceased-referred to as the patient), husband of appellant No.1 and father of appellants No.2 and 3, felt pain in his back. He visited Dr. Shiri Krishan-respondent No.3 on January 22^nd, 2005. The respondent No.1 injected two injections to Ramesh on 22.02.2005 and two injections on 23.01.2005. Thereafter, Ramesh Kumar felt more trouble. It was alleged that the respondent No.3 had not used sterilized/disposable syringes.

3.      On 24.01.2005 the patient was admitted in the hospital of respondent No.1 – Dr. Ajit Dahiya. The respondent No.1 assured that there was no need to worry. The respondent No.1 did minor surgery on the person of the patient and treated conservatively.  On 28.01.2005, the respondent No.1 showed in inability to cure the patient and advised the attendants of the patient to shift the patient to Maharaja Aggarsain Hospital, Delhi. It was alleged that the respondent No.1 failed to diagnose the patient carefully and gave treatment without getting the necessary tests done.  On 28.01.2005, the patient was shifted to Maharaja Aggarsain Hospital, Delhi where all the tests were got done however patient breathed his last on 04.02.2005. It was alleged that death occurred due to negligence and deficiency in service on the part of the respondents No.1 and 3. Appellants/complainants sought compensation of Rs.15.00 lacs besides interest @ 24% p.a. thereon.

4.      The respondent No.1 in his reply stated that the patient had taken treatment from him w.e.f. 20.01.2005 to 25.01.2005.  Earlier he had taken treatment from some local quack, who gave injections and tablets which provided him some intermittent syndrome. After five days the patient was brought to Gupta Nursing Home, Sonipat,   where the patient was treated under care of Dr. Dinesh Gupta. Dr. Gupta gave him antibiotics and symptomatic  treatment but when in order to rule out orthopaedic problem, Dr. Gupta called the respondent No.1 on 25.01.2005, after examining the patient, the respondent No.1 opined that there was B/L gluteal cellulitis and possibility of Ac.PIVD. On the request of the attendants, the patient was shifted to respondent No.1 hospital on 25.01.2005 at about 8.00 P.M. The patient was put on standard conservative management and advised certain investigations viz Hb, TLC, DLC, ESR, BT, B1, Sugar, B1 Urea, S. Creatinine, Urine exam, X-chest, ECG and X-ray LS Spine (AP & Lateral) and X-ray Pelvis, besides a diagnostic needle aspiration. The investigations revealed a low Hb, normal blood sugar, compromised renal function, negative X-rays and a negative diagnostic needle aspiration. Also, opinion from a general surgeon, Dr. B.D. Chowdhry, was sought on 26.01.2005, who opined that the patient was having extensive cellulitis and required surgery. The attendants failed to arrange blood, inspite of repeated requests.

5.      On 28.01.2005, the General Surgeon examined the patient. The case was also reviewed by the physician, Dr. Dinesh Gupta whose considered opinion was that the compromised renal function was part of Septicemia, which was due to gluteal cellulitis. The patient was referred to tertiary care centre, as the relatives/attendants were not able to arrange any blood. On request of the attendants, the patient was discharged on 28.01.2005 and referred to Post Graduate Institute of Medical Sciences, Rohtak for further management. The patient was taken to Dr. D.N. Sharma Hospital, Sonipat. The surgeon advised surgery. The patient died on 04.02.2005. Denying the allegations of the appellants, it was prayed that the complaint merited dismissal.

6.      The respondent No.2 – Oriental Insurance Company Limited while relying upon the reply of respondent No.1, prayed for dismissal of the complaint.

7.      The respondent No.3-Dr. Shiri Krishan @ Shiri, in his reply denied of having given injections to the patient, as alleged. It was stated that on 22.01.2005 the patient had visited his clinic but he (respondent No.1) had shown his inability to give any treatment and also advised to take treatment from any reputed hospital.

8.      On appraisal of the pleadings and evidence of the parties, the District Forum vide impugned order dismissed the complaint.

9.      The appellants/complainants, have examined Dr. Deepak Gupta, Surgeon, Maharaja Agarsain Hospital, New Delhi, who stated that the patient was suffering from septicaemia. There is no denial to the fact that the patient had died on account of septicaemia. Now the question is as to whether septicaemia was as a result of any negligence in the treatment on the part of the opposite party No.1 or opposite party No.3. No record of treatment has been placed on the file purporting opposite party No.3 to have treated the patient. Except tendering affidavits of two villagers that the opposite party No.3 had given injections, no other evidence has been led. Rather, it is specific case of Dr.Ajit Dahiya-opposite party No.1 that he diagnosed it a case of septicaemia and after consultation with Senior Surgeon had advised for surgery, however, the attendants did not agree. Even the doctor from Agarsain had advised for surgery, however, the attendants did not agree. Even the doctor from Agarsain Hospital has also stated that the patient was treated for septicemia. Therefore, it cannot be said that there was any negligence, either in diagnosing or treating the patient, on the part of the opposite party No.1 – Dr. Ajit Dahiya. The complainant has not examined any expert that at what stage septicemia developed and that it was on account of wrong injection on the part of any of the treating doctors.

10.    Medical Negligence has been discussed in catena of judgments of Hon’ble Supreme Court and National Commission.  In MARTIN F. D’SOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC), Hon’ble Apex Court has held as under:-

“When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.”

11.    In Kusum Sharma and others versus Batra Hospital & Medical Research Centre and others, 2010 ACJ 1444, Hon’ble Apex Court observed that the normal human tendency is to pick fault whenever there is a death in the family for which the doctor cannot be made a scapegoat. It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. Finding such CPA complaints against doctors on the rise and in many cases these being frivolous, the Bench said, "Courts have to be extremely careful to ensure that unnecessarily, professionals are not harassed and (or else) they will not be able to carry out their professional duties without fear."

12.    The Hon’ble Supreme Court held in C. P. Sreekumar (Dr.) vs. S. Ramanujam, (2009) 7 SCC 130, case as follows:-

 

“…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 proved. It is the obligation of Complainant “to provide the facta probanda as well as the facta probantia”

13.    Hon’ble National Commission in S.N. SINGH (DR.) versus DEVENDRA SINGH & ANR, III(2011) CPJ 390 (NC), relied upon the judgment rendered by the Hon’ble Supreme Court and held as under:-

“17.   In C.P. Sreekumar (Dr.) MS (Ortho) v. S. Ramanujam, II(2009) CPJ 48 (SC)=(2009)7 SCC 130, the Supreme Court held that bald statement of the complainant cannot be accepted to reach conclusion that the Doctor lacked expertise. It is observed that too much suspicion about the negligence of the attending Doctors and frequent interference by Courts could be a dangerous proposition as it would prevent Doctors from taking decision which could result in complications and in such a situation the patient will be the ultimate sufferer.”

14.    Hon’ble National Commission in Mohd. Abrar versus Dr. Ashok Desai and others, 2011 CTJ 613 (CP) (NCDRC) has observed as under:-

“The medical practitioners cannot be treated as magicians or demi-Gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practitioner and there was clear material available to foresee the injury.”

15.    The treating doctor would not assure the patient of full recovery in every case. 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.  In the case in hand, there is nothing on the record to suggest that any wrong treatment was given to the patient by the treating doctors.

16.    In view of the above, no ground to interfere with the order of the District Forum is made out. Hence, the appeal is dismissed.

 

Announced 26.04.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL