Haryana

StateCommission

A/976/2015

AMRIT PAL SINGH - Complainant(s)

Versus

DR.IMRAN KHAN - Opp.Party(s)

BY POST

19 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      976 of 2015

Date of Institution:      02.11.2015

Date of Decision :       19.08.2016

 

Amrit Pal Singh s/o S. Darshan Singh, Resident of Mohalla Guru Nanakpura, Narnaul, Tehsil Narnaul, District Mahendergarh, Haryana.

                                      Appellant-complainant

Versus

 

Dr. Imran Khan, Registration No.HN-3469, Dr. Imran Khan Hospital, near Rao Matadeen Memorial Hospital, Rewari Road, Narnaul, Tehsil Narnaul, District Mahendergarh, Haryana.

                                      Respondent-Opposite Party

 

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

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri Bhoop Singh, Advocate for appellant.

                             Shri Anirudh Kush, Advocate for respondent. 

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

The unsuccessful complainant is in appeal against the order dated June 5^th, 2015 passed by District Consumer Disputes Redressal Forum, Narnaul (for short ‘the District Forum’), whereby complaint alleging medical negligence and deficiency in service on the part of opposite party-respondent, was dismissed.

2.                The brief facts of the present as can be gathered from the record are that on May 23^rd, 2010 Amrit Pal Singh-complainant/appellant, suffered pain in his throat. On May 24^th, 2010 he got himself checked from Dr. Imran Khan-opposite party/respondent. The respondent advised for ultrasound and accordingly ultrasound was got done from Dr. G.D. Rathi. After examining the report of ultrasound, the respondent told that there was some foreign article in the food pipe which required endoscopy. The respondent called Dr.Rawat, an Anesthetist and conducted surgery. It was alleged that during surgery, the food pipe was damaged and condition of the complainant deteriorated. He was taken to Santokba Durlabhji Memorial Hospital-cum-Research Institute, Jaipur (for short “Santokba Hospital”) on May 26^th, 2010 where the doctor told that the food pipe was damaged due to negligence act of the respondent. The complainant alleged to have spent Rs.1,50,000/- on his treatment. He also complained to Dr. O.P. Siroha, who submitted report (Annexure C-5) observing that since the respondent did not give the papers with respect to the treatment of the complainant/patient, therefore, it was presumed that the respondent was negligent for not referring the patient (complainant) at the relevant time to the other hospital. However, again the inquiry was conducted by Deputy Civil Surgeon (T.B.), Narnaul, who submitted report (Annexure R-3) observing that there was no negligence on the part of the respondent and the complainant was negligence for not reaching the referred hospital. Thus, the complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 seeking compensation.  

3.                The respondent-opposite party contested complaint by filing written version. It was stated that after conducting laryngoscopy by Dr. M.M. Rawat, it was found that there was some problem in the food pipe of the complainant, so X-ray was advised and the patient was referred for gastroenterology. After going through the report of X-ray, it was ascertained that there was some foreign article in the food pipe of the patient/complainant. The other allegations levelled by the complainant were denied. It was pleaded that the complainant had taken non-veg in the evening of May 23^rd, 2010 and some chicken bone piece was lying in the food pipe of the complainant.  Dr. O.P. Siroha’s report was denied on the ground that the relation of the respondent with Dr. Siroha were strained. It was also stated that Dr. Siroha is only M.B.B.S. whereas the respondent is M.S. (ENT), so report (Annexure C-5) was of no help to the complainant. The subsequent inquiry report (Annexure R-3) states that there was no negligence on the part of the respondent, rather, the patient/complainant himself was negligent because he did not reach to the referred hospital in time. It was prayed that the complaint be dismissed.

4.                After evaluating the pleadings and evidence of the parties, the District Forum vide impugned order dismissed the complaint.

5.                Indisputably, the complainant suffered pain in his throat and got checked from Dr. Imran Khan-respondent. The respondent has specifically mentioned in his reply that on being examined there being some problem in the throat, the complainant was advised endoscopy. Prescription slip (Annexure R-6) also supports this version. The complainant approached the respondent on May 24^th, 2010 and on the same day he (respondent) examined the complainant and also endoscopy was advised. After endoscopy, complainant was referred to higher centre for further management (gastroenterology) on same day i.e. 24.05.2010 vide Annexure R-7. The complainant had gone to Santokba Durlabhji Memorial Hospital-cum-Research Institute, Jaipur, where he was admitted on May 26^th, 2010 and discharged on June 9^th, 2010 vide Discharge Summary (Annexure C-10). Thus, there was no delay on the part of the respondent in starting treatment. Discharge Summary (Annexure C-10) of Santokba Durlabhji Memorial Hospital-cum-Research Institute, Jaipur, rather supports the version of the respondent wherein also he (complainant) was diagnosed as “Post foreign body endoscopic extraction pneumomediastinum and pleural effusion” and in the column of history it is mentioned “Chicken bone impaction in oesophgagus”. Similar was diagnosis of the respondent.

6.                In this case there are two reports on the file. One (Annexure C-5) issued by Dr. O.P. Siroha, M.B.B.S. and the other (Annexure R-3) was submitted by Dr. Ashok, Deputy Civil Surgeon, having qualifications M.D. (Pulmonary Medicine). Undisputedly, Dr. Ashok, is having higher qualifications than that of Dr. O.P. Siroha.

7.                A perusal of the report (Annexure C-5) by Dr. O.P. Siroha, shows that it has been prepared merely on assumption and presumption. It is stated in the said report that the doctor was negligent because he should have referred the patient at the earlier stage. In the report (Annexure C-5) Dr. Siroha has only mentioned about reference and not about the treatment given to the complainant. He has not stated that either diagnosis was wrong or treatment was wrong.

8.                On the other hand, the report (Annexure R-3) of Dr.Ashok, Deputy Civil Surgeon, was prepared after going through the record with respect to the treatment of the patient/complainant. It has been stated that if the doctor had not given treatment immediately, then the consequences would have been very dangerous. Certainly the report by the doctor having higher qualifications and more experience has to be preferred.

9.                What constitutes medical negligence, based on the touchstone of Bolam Vs. Friern Hospital Management Committee, (1957), 1 WLR, 582 (the Bolam’s test), is well settled through a catena of decisions of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1, Indian Medical Association Vs. V.P. Shantha and Ors., (1995) 6 SCC 651 and Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors. (2010) 3 SCC 480.  

10.              In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning observed that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

11.              In Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, (1996) 1 SCR 206, it has been held that if a doctor has adopted a practice that is considered “proper” by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong. 

12.              In MARTIN F. D’SOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC), Hon’ble Supreme Court observed as under:-

“From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.”  

“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.”

13.              In absence of any cogent and convincing evidence it cannot be said that there was any negligence on the part of the respondent. Thus, no case for interference is made out.

14.              Hence, the appeal fails and is hereby dismissed.

 

Announced 19.08.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL