DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 109 of 06-05-2009<br /> Decided on : 11-11-2009 <br /> <br /> Kulwant Singh S/o Sh. Hakam Singh, aged 47 years, R/o Village Neor, P.O. Maluka, Tehsil Phul, District Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> 1.Bakshi Ortho & Maternity Centre, Bibi Wala Road, Bathinda trhough Prop. Dr. H.S. Bakshi, MBBS, MS (Ortho), Bibi Wala Road, Bathinda.<br /> 2.The New India Assurance Co. The Mall, Bathinda through its Divisional Manager.<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. George, President<br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> For the Complainant : Sh. K.S. Bhullar, counsel for the complainant.<br /> For the Opposite parties : Sh. J.D. Nayyar, counsel for opposite party No. 1<br /> Sh. Sunder Gupta, counsel for opposite party No. 2. <br /> <br /> O R D E R<br /> <br /> GEORGE, PRESIDENT<br /> <br /> 1. The complainant has approached this Forum with the complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') against the opposite parties that his ankle bone was fractured for which he consulted opposite party No. 1 on 11-04-2007 who advised him an operation. He was admitted with opposite party No. 1 on 12-04-2007 and was operated upon and was discharged on 14-04-2007. The opposite party No. 1 charged Rs. 30,000/- for the said operation. There was pus flowing from the wound due to infection caused due to negligence of opposite party No. 1 as he has failed to conduct test for diabetes and other necessary tests. Since the infection was rising day-by-day and pus started pouring from wound profusely, the complainant got the wound checked from opposite party No. 1 on 19-04-2007, 24-04-2007, 01-05-2007, 07-05-2007 and 27-05-2007 and he assured the complainant that the wound will heal with passage of time. When his wound did not heal, he consulted Dr. Vijay, Obed, Specialist at CMC, Ludhiana on 29-05-2007, who started treatment and advised him that opposite party No. 1 has operated the complainant negligently due to which the condition of injury/wound worsened and to save his leg, 4/5 operations are required to be done otherwise his leg has to be amputated.<br /> On 14-07-2007, the complainant was admitted in CMC Ludhiana and was operated upon and discharged on 25-07-2007. Thereafter he was again admitted in CMC Ludhiana on 10-09-2007 and was operated on 11-09-2007 and was discharged on 22-09-2007. Since he remained under treatment at CMC Ludhiana, he visited the said hospital on 29-05-2007, 06-06-2007, 13-06-2007, 20-06-2007, 27-06-2007, 30-06-2007, 11-07-2007, 14-07-2007, 28-07-2007, 01-02-2007, 08-08-2007, 18-08-2007, 25-08-2007, 08-09-2007, 26-09-2007, 03-10-2007, 10-10-2007, 24-10-2007, 31-10-2007, 28-11-2007, 22-12-2007, 02-01-2008, 27-02-2008, 22-03-2008, 26-06-2008, 02-07-2008, 03-07-2008, 10-07-2008. 26-07-2008, 20-08-2008, 27-08-2008, 03-09-2008, 04-10-2008, 25-10-2008, 29-11-2008. Thereafter he was again admitted in CMC Ludhiana on 03-12-2008 and after operation on 04-12-2008, was discharged on 13-12-2008. He again visited Ludhiana for check-ups on 20-12-2008, 24-12-2008, 27-12-2008, 31-12-2008, 07-01-2009, 14-01-2009, 21-01-2009 and on 31-01-2009. The complainant pleads that he is still on rich and special diet and had to spend a lot on transportation, tests and operations. Had the opposite party No. 1 has done test for diabetes and other tests before operation, he could have been saved from all these sufferings and uncalled miseries. He alleges that due to negligent act of opposite party No. 1, he has suffered mental tension, agony, pains, inconvenience and monetary loss. Hence, this complaint for issuing directions to the opposite parties to pay him compensation/damages as under :-<br /> <br /> 1. Transportation charges from Bathinda Rs. 1,00,000/-<br /> to Ludhiana <br /> 2. Expenses incurred for tests, operation Rs. 2,50,000/-<br /> charges and for attendant<br /> 3. Medicine expenses Rs. 1,50,000/-<br /> 4. Expenses incurred for rich diet etc., Rs. 3,00,000/-<br /> 5. Loss of four crops and sale of milk etc., Rs. 2,00,000/-<br /> 6. Loss of son's academic year Rs. 1,00,000/-<br /> 7. Pains & sufferings Rs. 1,00,000/-<br /> ------------------------<br /> Total : Rs. 12,00,000/-<br /> ------------------------<br /> <br /> He also claims interest @18% P.A. on the aforementioned amount from the date of negligent operation conducted by opposite party No. 1 till realisation and litigation expenses to the tune of Rs. 22,000/-.<br /> 2. The opposite party No. 1 filed reply taking preliminary objections that complaint is not maintainable; complainant is not consumer as defined under the 'Act'; he has not approached this Forum with clean hands; since complicated questions of law are involved in the complaint, this Forum has no jurisdiction to entertain and try the complaint in summary procedure; complainant has no cause of action; this Forum has no jurisdiction; complainant is estopped from filing the complaint by his own act and conduct; complaint is false and fictitious and there is no negligence on the part of opposite party No. 1.<br /> On merits, it has been submitted that Kulwant Singh, complainant was admitted in Bakshi Hospital, Bathinda (opposite party No. 1) on 12-04-2007 with infected wound over the back ankle in the region of Achilles tendon of about 15-20 duration. He was a known patient of Diabetes Mellitus and was taking some medicines for the same. All the necessary investigations were got done from qualified Pathologists lab. The wound debridement was done under GA on 12-04-2007 and dressing was done over it and subsequently he was discharge on 14-04-2007 after change of dressing. He was attended to in the OPD on 19-04-2007, 24-04-2007, 01-05-2007 and then 07-05-2007. Dressings were done on the wound and antibiotics and other medicines were prescribed for wound healing. When the wound apparently was healthy and fit for skin grafting procedure, he was advised to get skin grafting done by some plastic surgeon. It has been specifically denied that complainant had any fracture of the ankle bone as claimed in the complaint or he was ever treated for any fracture by opposite party No. 1 in his hospital. It has been pleaded that had the complainant been suffering from any fracture of the ankle bone and operated upon for the same, he could not have been discharged just on the third day of admission and operation. This is merely a concocted story of the complainant to extort money. It has been denied that an amount of Rs. 30,000/- has been charged from the complainant. However, it has been stated that opposite party No. 1 charged Rs. 5,000/- and nothing beyond that from him. The treatment given by opposite party No. 1 to the complainant was for infected wound over Tendo-Achilles of Left Side and not for ankle fracture.<br /> It has been submitted that the as per records submitted by the complainant, he was admitted in the CMC Hospital, Ludhiana under Dr. Vijay Obed, a Plastic Surgeon on 14-07-2007 as a “k/c/o (known case of) Diabetes Mellitus” with wound Left Teno-Achilles region due to TRAUMA 2 months back” and not with any fracture as claimed by the complainant and was treated there accordingly. It is clearly written in the records of CMC Ludhiana that there is wound 6x2 cms. in left tendo-achilles region with granulation present and tendons not exposed which was treated by Local Flap Coverage of Wound and STSG. All other remaining averments made by the complainant has been denied and prayer has been made for dismissal of the complaint.<br /> 3. The opposite party No. 2 filed reply taking almost similar legal objections as has been taken by opposite party No. 1. It has been stated that opposite party No. 1 has obtained Doctor's Professional Indemnity Policy vide Cover Note No. 360601/46/06/34/00000/10 effective from 27-04-2006 to 26-04-2007 for a sum of Rs. 10,00,000/- for any one accident for any one year. However, it has been pleaded that opposite party No. 1 has violated the terms and conditions of the policy, as such opposite party No. 2 is not liable to pay any compensation to the complainant.<br /> 4. In support of his averments contained in the complaint, the complainant has produced in evidence his affidavit Ex. C-1, photocopy of prescription slip Ex. C-2, photocopy of discharge summary Ex. C-3, photocopies of retail Invoices Ex. C-4 to Ex. C-5, photocopy of discharge summary dated 22-09-07 Ex. C-6, photocopies of retail Invoices Ex. C-7 to Ex. C-8, photocopy of discharge summary dated 13-12-2008 Ex. C-9. Photocopies of retail Invoices Ex. C-10 to Ex. C-12, photocopies of cash memos Ex. C-13 to Ex. C-127, photocopies of receipts Ex. C-128 to Ex. C-133, photocopies of Lab reports Ex. C-134 to Ex. C-136, photocopy of E.C.G. Ex. C-137, photocopies of reports Ex. C-138 to Ex. C-141 and payment receipts Ex. C-142 to Ex. C-192. <br /> 5. To controvert the evidence of the complainant, opposite party No. 1 produced on record affidavit of Dr. H S Bakshi Ex. R-3, photocopy of Bed Head Ticket Ex. R-4, photocopy of consent form Ex. R-5, photocopies of certificates Ex. R-6 to Ex. R-8 and opposite party No. 2 tendered in evidence affidavit of Sh. PK Jain, Senior Divisional Manager Ex. R-1 and photocopy of Insurance policy Ex. R-2.<br /> 6. We have heard learned counsel for the parties and have gone through the entire record of the case.<br /> 7. Learned counsel appearing on behalf of the complainant has vehementally argued that in fact initially ankle bone of the complainant was fractured for which he consulted opposite party No. 1 on 11-04-2007. He was admitted by opposite party No. 1 in his hospital on 12-04-2007 and after the complainant was operated upon, he was discharged on 14-04-2007 and thereafter he remained under treatment with opposite party No. 1 and visited his clinic as per advice of opposite party No. 1 on 19-04-2007, 24-04-2007, 01-05-2007, 07-05-2007 and 27-05-2007. There was infection in the wound and the condition of the wound of the complainant was worsening day by day. He also visited opposite party No. 1 on 15-05-2007 and 27-05-2007. The opposite party No. 1 told the complainant that his wound will heal with passage of time. Ultimately when the complainant found no healing in the wound, he consulted Dr. Vijay Obed, Specialist at CMC, Ludhiana, on 29-05-2007 and he was told that operation done earlier by Dr. Bakshi was done with gross negligence due to which the condition of the injury/wound worsened and the wound was found highly infested with infection. At CMC, Ludhiana, the complainant was told to undergo 4-5 operations to save his leg otherwise his leg has to be amputated. <br /> 8. Now the question arises before us as to whether the complainant was treated either with negligence or carelessness by opposite party No. 1 during the period 11-04-2007 to 27-05-2007 and if the complainant was not treated for fracture but was treated only for a wound in his left ankle, as to why after an operation and continuous treatment for a period of about 1-1/2 months, the condition of wound instead of improving went bad to worse.<br /> The negligence is the breach of duty caused by the omission to do something which is a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. (See Law of Torts, Ratanlal & Dhirajlal Twenty-fourth Edition 2002 at P. 441-442)<br /> Negligence means “either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; is rather a comparative term. In determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstances have to be taken into account.”(Municipal Corpn. Of Greater Bombay Vs. Laxman Iyer (2003) 8 SCC 731 para 6.<br /> Negligence is strictly non-feasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of ordinary prudence.<br /> The Hon'ble Supreme Court recently in Martin F.D.'Souza V. Mohd. Ishfaq 2009 CTJ 352 (SC)(CP)=(2009) 3 SCC 1, has laid down certain precautions which are required to be taken by Hospitals/Doctors in the following terms :<br /> “(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly...<br /> (b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over telephone, except in an acute emergency, should be avoided.<br /> (c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary.<br /> (d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.<br /> (c) An expert should be consulted in case of any doubt.,<br /> 9. Taking into consideration the settled position of law, as referred to here in above, it is also required to take into consideration the standard of duty to care in medical services which is expected from the hospitals and doctors. The premium stature of services available to the patient certainly raises a legitimate expectation. The deficiency in service emanates from conduct in which the patients are dealt with in the hospital by the doctors. Even in the matter of determining the deficiency in medical service, it is now well-settled that if representation is made by a doctor that he is a specialist and ultimately it turns out that he is not, deficiency in medical services would be presumed. The Hon'ble Supreme Court in Smt. Savita Gar Vs. The Director National Heart Institute 2004 CTJ 1009 (SC)(CP)=(2004) 8 SCC 56, has held that :-<br /> “It is the common experience that when a patient goes to a private clinic, he goes by the reputation of the clinic and with the hope that proper care will be taken by the Hospital authorities. It is not possible for the patient to know that which doctor, will treat him. When a patient is admitted to a private clinic/hospital, it is hospital/clinic which engages the doctors for treatment., They charge fee for the services rendered by them and they are supposed to bestow the best care.<br /> 10. The Hon'ble Supreme Court in Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others 2009 CTJ 1064 (Supreme Court) CP), has laid down certain principles which are to be considered before fixing individual liability of the doctors i.e :-<br /> “There cannot be, however, by any doubt or dispute, that for establishing medical negligence or deficiency in service, the courts would determine the following :<br /> (i) No guarantee is given by any doctor or surgeon that the patient would be cured. <br /> (ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill. <br /> (iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence. <br /> (iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which <br /> he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.<br /> (v) In a complicated case, the court would be low in contributing negligence on the part of the doctor, if he is performing his duties to be best of his ability.<br /> Bearing in mind the aforementioned principles, the individual liability of the of the doctors and hospital must be judged.”<br /> 11. Taking into consideration the position of law as has been explained herein above, we have examined the record of the treatment the complainant was provided by opposite party No. 1 during the period 11-04-2007 to 27-05-2007. The history sheet of the treatment of the complainant Ex. R-4 is brought on the record by opposite party No. 1 which shows that the complainant was admitted for treatment of infected wound over heel region more than one month duration. Known diabetic case and the second and third page of the history sheet do not show as to what kind of wound dressing was done after putting the complainant under General Anesthesia. The detail of the dressing and wound in detail is not given except mentioning administration of few medicines on 12-04-2007. The detail of the operation also not mentioned. Even while discharging the complainant from the hospital on 14-04-2007, the detail of the treatment not mentioned. Even no discharge slip was prepared nor the condition of wound mentioned in the discharge slip/history sheet of the complainant's treatment record.<br /> 12. We have perused the patient consent form Ex. R-5. It has been got signed from the complainant. It is a printed document. Only name of the patient has been filled in and the signatures are obtained. It is not even counter signed by opposite party No. 1 nor this consent form is disclosing as to for what purpose the complainant was admitted and remained in the hospital for three days, what treatment he was to be provided and what was the supposed out come of this admission, is not at all explained to the complainant. It appears that the consent form Ex. R-5 has been filled in as a mere formality without counter singing the same by opposite party No. 1. The portion of discharge summary in consent form is totally blank which shows that the complainant was not given discharge summary/treatment details, at the time he was released from indoor consultancy. The patient consent Form Ex. R-5 on bare perusal reveals that it is not in accordance with the requirements of Medical Council Act. The Hon'ble Supreme Court in the case titled Samira Kohli Vs. Prabha Manchanda & Anrs. AIR 2008 Supreme Court 1385has laid down the following principles presently govern patient's consent :<br /> i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' ( treatment includes surgery also). The consent so obtained should be real and valid, which means that the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to. <br /> ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgement as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose – (a) nature and procedure of the treatment and its purpose, benefits and effect :(b) alternatives if any, available :(c) an outline of the substantial risks : and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.” <br /> 13. The above facts and the record brought before this Forum substantiate the allegations of the complainant that during the period he remained under treatment with opposite party No. 1, the opposite party No. 1 had not taken due care as required from a doctor of his repute so as to render satisfactory medical service to the complainant to save him from his sufferings as neither history sheet Ex. R-1 reveals that what kind of due care and caution the opposite party No. 1 has taken nor this has been reflected by opposite party No. 1in prescription slip Ex. C-2, he issued to the complainant. Ex. C-2 shows that the complainant continued to visit opposite party No. 1 from 12-04-2007, as advised, but opposite party No. 1 after discharging the complainant from his hospital on 14-04-2007 did not prepare any discharge summary nor he prepared any history sheet of the wound or the position of the wound as on 19-04-2007 and on subsequent dates, despite the fact that the complainant continued to visit opposite party No. 1 for treatment of his infected wound. It is an admitted fact that the complainant remained under exclusive treatment of opposite party No. 1 from 11-04-2007 to 27-04-2007 and the condition of his wound gone bad to worse and only of this reason, he had to consult Dr. Vijay Obed. at CMC, Ludhiana on 29-05-2007. As to why the treatment given by opposite party No. 1 to the complainant for a period of more than one month twenty days, remained ineffective and did not respond should have been mentioned by opposite party No. 1 when the complainant last visited his clinic. <br /> 14. The Hon'ble Supreme Court has settled the law on the subject in case titled Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors 1009(2) CPC 402 (SC) wherein it has been held that :- “Once the complainant had discharged initial burden, it was incumbent upon hospital authorities to prove that they had done their duty without any negligence on their part which they have failed to do.” <br /> 15. In the present case, no doubt that Dr. Vijay, Obed. Professor and Head Department of Plastic Surgery of Christain Medical College and Hospital, Ludhiana, has been examined by the complainant who has deposed about condition of the wound and treatment given to the complainant as per discharge summaries Ex. C-3, Ex. C-6 and Ex. C-9. He has admitted that complainant remained under his treatment from 14-07-2007 to 13-12-2008 and he was admitted and was subjected to surgery three times. He has further stated that this was done to manage wound and wound may be occurred due to injury. However, he cannot definitely say about previous management. <br /> 16. It is a common phenomena among the doctors that they always refrain from making any comment as a professional brotherhood for the treatment given by their predecessor and successor and keeping this aspect of the view, the Hon'ble Supreme Court has recently made observations in Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Others (Supra) that “A court is not bound by the evidence of experts which is to a large extent advisory in nature. The court must derive its own conclusion upon considering the opinion of experts, which may be adduced by both sides, cautiously, and upon taking into consideration the authorities on the point.”<br /> 17. Taking into consideration the facts, circumstances and position of law, as has been referred to herein above, we are of the considered view that opposite party No. 1 except denying that he was negligent or careless in making management of the wound of the complainant and that a false case has been filed against him, has produced nothing on record to prove the said facts. However, the evidence as has been discussed herein above, speaks volumes of the fact that opposite party No. 1 while managing wound of the complainant took the professional obligation in a most casual manner as well as he failed to give details not only on the prescription slip but also on the history sheet, managed and prepared regularly in the Hospitals. <br /> 18. In view of the above discussion, we accept the complaint and direct opposite party No. 1 to pay to the complainant an amount of Rs. 4,00,000/- ( Rs. 50,000/- Travel & Incidental expenses + Rs. 1,50,000/- for medicines + Rs. 1,00,000/- for tests and operations + Rs. 50,000/- on account of loss of work etc., and earning for one year + Rs. 50,000/- for pains and sufferings = Rs. 4,00,000/-). The opposite party No.1 is also directed to pay the complainant an amount of Rs. 10,000/- as litigation expenses. <br /> The compliance of this order be made within 45 days from the date of receipt of copy of this order. <br /> However, opposite party No. 1 may got the aforesaid amount of compensation indemnified from opposite party No. 2 subject to its liability.<br /> The copy of this order be sent to the parties concerned free of costs and the file be indexed and consigned.<br /> Pronounced :<br /> 11-11-2009 <br /> (George)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> (Amarjeet Paul) Member