ORDER

01.10.2024

Sh. Sanjay Kumar, President

1. The factual matrix of the present case is that complainant admitted his son namely Vijay in the hospital i.e OP2 on 27.01.2014 vide registration no.3377 because the son of the complainant is suffering from pain and the OP2 referred to OP1 who advice the complainant that the OP1 will do the operation of his son and the OP1 done the operation of the son of the complainant and discharged him on 28.01.2014 i.e on the same day of the operation.
2. It is stated that on the night of 28.01.2014 the son of the complainant again feels more pain and the complainant took his son to the OP2 i.e hospital and requested the staff of the hospital to call the OP1 but after several calls neither the OP1 picked the phone nor the OP1 came to the hospital. It is further stated that after waiting 3-4 hours when the OP1 did not reached in the hospital the complainant took his son to another hospital because the son of the complainant feeling heavy paid and the doctor on duty in the  another hospital told the complainant that there is a infection in the body of the son of the complainant due to the said infection the son of the complainant died on 09.02.2014.
3. It is stated that due to the carelessness and negligent manner of the OP1 the son of the complainant has lost his life. It is further stated that the complainant has lost the life of his young son due to the negligent manner of the OP1 because the OP1 had failed to discharge his duties. It is stated that all the so suffered by the complainant because the complainant has mentally disturbed and has lost physically and monetary and all the loss so suffered by the complainant are calculated to Rs.20 lacs and the complainant is entitled to recover the same from the respondent. It is stated that complainant gave a legal notice through his counsel dated 26.05.2014 which was duly received by the OPs but neither the OPs replied the said notice nor the OPs have paid the compensation to the complainant.
4. Complainant is seeking direction against OPs to pay Rs.20 lacs alongwith interest @ 18% per annum in favor of complainant and any other which deems fit and proper.
5. OP1 filed detailed WS and taken preliminary objections that the Delhi Medical Council has not found any medical negligence on the part of OP1 and filed on record medical board report in favour of OP1. It is stated that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law and has been filed without any justified reason/cause against the OP1 just to harass, defame and extort illegal sum of money from the OP1, hence the complaint is liable to be dismissed.
6. It is stated that no specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by the complainant against the OP1 and the complainant has totally failed to explain “as to how OP1 is involved and the OP1 were negligent”, therefore, the complaint is miserably failing to explain the cause of action against the OP1. Therefore, is liable to be dismissed outright.
7. It is stated that the complaint is false, malafide and not sustainable in Law a case of occupational negligence is different from one of professional negligence. It is further stated that a simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. It is stated that so long as a doctor follows a practice acceptable to the medical profession of that day,  OP1 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.
8. It is stated that when it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. OP1 does not assure  his client of the results.
9. It is stated that a physician would not assure the patient of full recovery in every case. It is further stated that a surgeon cannot and does not guarantee that the result of surgery would invariably by beneficial, much less to the extent of 100% for the person operated upon. 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. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is stated that it is not necessary for every professional to possess the highest level of expertise in that branch which he practices.
10. It is stated that where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or  not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skill man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill or an ordinary competent man exercising that particular art.
11. It is stated that complainant has filed this complaint with false allegations of negligence to the Hon’ble Forum by claiming exorbitant amounts without any basis, just to waste the valuable time, harass and defame the OP1. Although it is a fact that the OP1 has not committed any negligence in this case, while providing the said treatment, hence complaint is liable to be dismissed. It is further stated that as such no cause of action arose against the OP1 in this case, no negligence or deficiency in services in services has been made/provided by the OP1 to the patient while providing the said services in question, and hence this complaint is not maintainable in present form and is liable to be dismissed outright.
12. It is stated that the present complaint is totally false, fabricated, wrong and baseless which is synthesized on the basis of unscientific laymen conjectures, assumptions and presumptions and that in this case no negligence (either in the form of commission or omission) has been committed by the OP1 and hence the complaint is liable to be dismissed.
13. It is stated that this complaint is bad for non-arraignment and mis-arrangement of parties. The OP1 is insured with “United India Insurance Company Ltd.”, through its Professional Indemnity Policy No.041200/46/13/35/00005831 effective from 10.12.2013 to 09.12.2014. It is further stated that OP1 is well qualified, reputed and respected doctor.
14. It is stated that patient, Mr. Vijay was admitted to Ishan Hospital under the care of the OP. It is further stated that patient had paraplegia and urinary bladder stones and was on indwelling Foleys catheter. After investigations he was taken up for surgery on 27^th Jan 2014. Surgery of Cystolithotripsy (CLT) was performed diligently, prudently, with utmost due care and caution under spinal anesthesia without any complications. The patient was kept under observation and administered IV fluids, antibiotics and then discharged the next day 28^th Jan 2014 to home with indwelling catheter and in fit and fine condition. The patient came to the hospital late at night with complaints of pain. The doctor on duty called the OP to which he promptly replied and requested for an ultrasound. The patient went for an ultrasound and never came back to the hospital. After this patient lost to follow up and never came back. Thereafter the OP has no knowledge of the whereabouts of the patient. Everything the OP has done was done diligently, prudently, with ultmost due care and caution in treating the said patient. The OP1 say there was no negligence at least from their side. The Delhi Medical Council has not found any medical negligence on the part of OP1.
15. On merit all the allegations made in the complaint are denied by OP1 and reiterated contents of preliminary objections.
16. Complainant filed rejoinder to the WS of OP1 and denied all the allegations made therein and reiterated contents of complaint.
17. As per record on the application of OP1, United India Insurance Co. Ltd. was impleaded as OP3. As per record OP2 and 3 were served and did not appear and vide order dated 20.03.2018 they were proceeded ex parte. As per record complainant has not filed amended memo of parties wherein OP3 was impleaded as OP.
18. Complainant filed evidence by way of affidavit and reiterated contents of complaint. Complainant relied on copy of discharge slip, copies of medical treatment and other record of AIIMS.
19. OP1 filed evidence by way of affidavit of Anil Agarwal and reiterated contents of WS. OP1 relied on report of medical board Annexure R1 and medical literatures related to the subject matters Annexure R2.
20. As per record no evidence filed by OP2.
21. Written arguments filed by complainant as well as by OP1. No written arguments filed by OP2.
22. We have heard Sh. Vikas Shokeen counsel for OP1 and despite ample opportunities complainant counsel failed to address oral arguments, however we have gone through the written arguments filed on behalf of complainant.
23. The complainant case is that OP1 Dr. Anil Aggarwal and OP2 Ishan Hospital committed medical negligence when his son Vijay admitted in the hospital on 27.01.2014. As per medical record available filed by complainant on 29.01.2014 deceased Vijay Kumar admitted at AIIMS for treatment and remained at AIIMS till 05.02.2014. The complainant has not filed discharge summary. The complainant also not filed any medical record issued by AIIMS describing the cause of death. The OP1 filed on record an order dated 11.09.2015 of Delhi Medical Council. The Delhi Medical Council had taken up and examined complaint of Sh. Jai Prakash Sharma complainant in the present case alleging medical negligence against OP1. We have gone through the order. The Delhi Medical Council after examining the medical record of Ishan Hospital and AIIMS observed that there is no case of medical negligence against OP1 in the treatment administered to complainant’s son Vijay Kumar. It is pertinent to mention here that complainant has not filed any application for seeking opinion of medical expert and due to best reason known to the complainant the material fact with regard to treatment at AIIMS concealded before this commission although documents have been  filed. We are of considered opinion that on the basis of material on record complainant failed to establish medical negligence against OP1 and OP2.
24. On the basis of above observation and discussion present complaint is dismissed. No order as to cost. File be consigned to record room.
25. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  01.10.2024.

      SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER