Haryana

Yamunanagar

CC/217/2011

Sachin Kumar S/o shamsher Singh - Complainant(s)

Versus

Dr.Kulbhushan Gupta - Opp.Party(s)

Inperson

12 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No.217 of 2011.

                                                                                    Date of institution: 15.03.2011.

                                                                                    Date of decision: 12.01.2017.

Sachin Kumar aged about 22 years son of Shri Shamsher Singh, resident of Harijan Basti, V.P. O. Bilaspur, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                                    …Complainant.

                                          Versus

1. Dr. Kulbhushan Gupta C/o Gupta Hospital, Ortho General Surgery & Maternity Centre, behind Punjab National Bank, V.P.O. Bilaspur, Tehsil Jagadhri, District Yamuna Nagar.
2. United India Insurance Company Ltd. 54, Janpath, Cannaught Place, New Delhi-110001. (Policy bearing No. 040100/46/10/35/00003585 valid w.e.f. 27.10.2010 to 26.10.2011).

                                                                                                                  …Respondents.

                       

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT,

                         SH. S.C.SHARMA, MEMBER.

 

Present: None for complainant.   

              Sh. P.K.Garg, Advocate, counsel for respondent No.1.

              None for respondent No.2. 

 

ORDER

 

1                      Complainant Sachin Kumar filed the present complaint under section 12 of Consumer Protection Act, 1986 praying therein that respondents (hereinafter respondents will be referred as OPs) be directed to pay compensation of Rs. 80,000/- alongwith interest on account of loss of finger, loss of work and on account of mental agony as well as physical harassment. financial loss caused to the complainant due to negligence in medical treatment.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that on 22.12.2010, the complainant received injury on one of his finger which caused wound on his finger as the flesh was frayed of the finger and complainant immediately approached to OP No.1 doctor for treatment of his finger. The Op No.1 doctor after checking up the finger stitched the frayed flesh and put three stitches on the finger of complainant and medicines were prescribed but there was no relief and thereafter the complainant again contacted the OP No. 1 Doctor and showed his finger but the OP No.1 doctor each and every time assured the complainant that there is no problem and it will be cured very soon. Thereafter, in the evening of 06.02.2011 the OP No.1 doctor refused to give further treatment to the complainant and on 07.02.2011 he visited in Vighnesh Hospital, Ambala Road, Jagadhri for his treatment and after checking up the finger of complainant the doctor told him that the stitches has not been installed properly and there should be six stitches in the finger, but the doctor negligently put only three stitches, due to which the flesh came out through the said three stitches and now there was no option except to cut and remove the said injured finger and having no other alternative the doctor of Vighnesh Hospital cut and removed the said finger on 07.02.2011 on the consent of complainant. Due to deficient and negligent services in providing proper treatment to the complainant by the OP No.1 Doctor, the complainant has suffered a lot of mental as well as physical harassment in the hands of the Op No.1 doctor. Hence, this complaint.

3.                     Upon notice, OP No.1 doctor appeared and filed its written statement by taking some preliminary objections such as complaint is nothing but an abuse of process of law as the complaint has been filed with an ulterior motive of harassing the OP No.1 Doctor; complaint under reply is grossly misconceived, vague and does not disclose any relevant cause of action against the Op No.1; the complaint is based upon gross misconception regarding medical negligence. “ A doctor or a hospital cannot be held to be guilty or negligent merely because the medical procedure has failed or a risk inherent in medical procedure manifests itself or a patient is not cured due to negligence of the patient himself”. It has been further submitted that the best possible treatment consistent with standard practice prescribed the world over was administered to the patient using reasonable skill to the best of the abilities of the OP No.1 Doctor. Therefore, by any stretch of imagination, the Op No.1 doctor cannot be termed as negligent. The present complaint is false, frivolous and vexatious and is liable to be dismissed under section 26 of Consumer Protection Act. The Hospital of OP No.1 doctor is a reputed hospital and has earned goodwill in the area. It is also well known that in medical science 100% success sometimes cannot be achieved even in the best hands, but the same cannot be treated as negligence. The present complaint is not supported by any medical expert witness by the complainant. It is essential to annex medical expert witness before filing a consumer case as envisaged by the Hon’ble Supreme Court Judgment in Civil Appeal No. 3541 od 2002, titled as Martin F. D’Souza, Doctor Versus Mohd. Ishfaq. The Op No.1 doctor is a well qualified doctor duly insured with United India Insurance Company Ltd. Janpath, Connaught Place, New Delhi-110001 under professional Indemnity Insurance Policy bearing No. 040100/46/10/35/00003585 valid w.e.f. 27.10.2010 to 26.10.2011 for a sum insured of Rs. 10,00,000/-. The Op No.1 Doctor is a well-qualified and reputed Surgeon with a long practicing experience worth more than 12 years having qualification as MS ( Orthopedic) from Government Medical College, Patiala, Punjab University and is duly registered with Punjab Medical Council vide Registration No. 27915 dated 21.11.2012.

                        The complainant came to the hospital of Op No.1 on 20.12.2011 with complaints of crushed injury to index finger right hand with avulsed nail. The patients’ finger was badly crushed after injury with the brick and bat during construction work. The patient was properly examined, investigated and treated with due care and caution by the OP No.1 doctor as per prescribed norms of general practice. The patient never reported back to the OP No.1 Doctor for dressing or any kind of treatment for about one and half month. As per information available to the OP No.1 Doctor, the patient started going to a local quack- Dr. Bangali in Saraswati Market, Bilaspur for dressing and treatment, who continued to give treatment to the complainant for an appreciable time but when the condition of the finger of the complainant deteriorated and became gangrenous, refused to give any further treatment. The patient then approached to OP No.1 doctor again after many days on 06.02.2011 with gangrenous finger. The Op No.1 doctor examined the patient thoroughly and enquired about the doctor who had been giving the treatment after the patient was discharged in a stable condition on 22.12.2010 when his finger was dressed duly stitched & now how it had become so gangrenous. The patient and his attendant then informed the OP No.1 Doctor that Dr. Bangali used to give dressing and the treatment but now has refused to give any further treatment. The OP No.1 doctor checked the patient’s finger thoroughly once again and informed the patient about the poor prognosis and mentioned that the treatment to his injured finger can be started once again but his finger might have to be amputated as his finger has become gangrenous badly due to wrong treatment given by Dr. Bengali. Hearing this, the relatives of the patient started abusing the OP No.1 Doctor and his staff and left the hospital threatening to kill the OP No.1 Doctor and his staff member of the hospital. On merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     Further, the OP No.1 in the written statement has alleged that his hospital is insured with the United India Insurance Company Ltd. Janpath, Connaught Place, New Delhi-110001 under professional Indemnity Insurance Policy bearing No. 040100/46/10/35/00003585 valid w.e.f. 27.10.2010 to 26.10.2011 for a sum insured of Rs. 10,00,000/- which has not been impleaded as party to the complaint though he is necessary party. Accordingly, the complainant impleaded him as OP No.2 by filing amended title and OP No.2 was also summoned in this case to put his version, if any.

5.                     Upon notice, OP No. 2, United India Insurance Company, being the insurer of OP No.1 Doctor, appeared and filed its written statement admitting the fact that Op no.1 Dr Kulbhushan Gupta was insured vide insurance policy bearing no. 040100/46/10/35/00003583 valid from 27.10.2010 to 26.10.2011 for a sum of Rs. 10,00,000/- subject to terms and conditions of the policy in question and reiterated the stand taken in the written statement by the OP doctor. Lastly, prayed for dismissal of complaint qua OP No.2 Insurance Company.

6.                     In support of the case, counsel for the complainant tendered into evidence Affidavit of complainant as Annexure CX, affidavit of Shamsher Singh son of Sh. Bhangiram R/o village Bilaspur as Annexure CY and affidavit of Gurdev Singh son of Mohan Lal R/o village Bilaspur as Annexure CZ and documents such as prescription slip of Gupta Hospital as Annexure C-1, Prescription slip of Vighnesh Hospital as Annexure C-2, Photo copy of receipt of Rs. 70/- of Vighnesh Hospital as Anenxure C-3, Photo copy of lab report of Vighnesh Hospital as Annexure C-4, photo copy of postal receipt as Annexure C-5, Photo copy of legal notice as Annexure C-6 and closed the evidence on behalf of complainant.

7.                     On the other hand, OP No.1 tendered into evidence his affidavit as Annexure RW/A, affidavit of Mam Chand son of Ram Pal R/o village Changnouli as Annexure RW/B and document such as photo copy of insurance cover note as Annexure R-1, Photo copy of degree of master of surgery as Annexure R-2, Photo copy of registration certificate for additional medical qualification as Annexure R-3 and closed his evidence.

8.                     OP No.2 failed to tender any evidence, hence its evidence was closed by court order on dated 18.04.2016.    

9.                     We have heard the learned counsel for OP No.1 and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

10.                   It is not disputed that the complainant received injuries on his one finger of the hand during the working of white wash and due to that he visited the Op no.1 doctor and the Op no.1 doctor after checking up the finger stitched the frayed flesh and put three (3) stitches on the finger of the complainant and thereafter gave medicines to the complainant which is duly evident from the copy of prescribed slip i.e. OPD slip Annexure C-1. This fact has also been admitted by the Op no.1 Doctor in para No.2 of the written statement on merit that OP Doctor cleaned the finger, did the debridement of the wound and put the required number of 3 stitches of sututes on the patient’s finger and dressed it and the patient was prescribed medicines and advised rest for few days and then the patient was allowed to go home in a stable condition and discharged on 22.12.2010. The only version of the OP No.1 doctor is that after discharge from the hospital on 22.12.2010, the complainant never approached to the OP No.1 Doctor and when he visited the OP No.1 doctor on 06.02.2011, there was gangrenous in the finger of the complainant. Accordingly, the Op no.1 Doctor informed the attendant that treatment can be started once again but the seriousness of his index finger is that the OP No.1 might have to amputate the index finger of his right hand but the complainant and his attendants started abusing the OP No.1 Doctor and left the hospital. Learned counsel for the OP No.1 doctor further argued that no evidence has been produced by the counsel for the complainant regarding any alleged negligence on the part of OP No.1 doctor and the doctor is not liable to be held negligent simply on the ground that complainant did not fully recover from the fracture. The allegations leveled in the complaint are false and they do not make out the case under the consumer law. In this case, the complainant has not followed the directions of OP No.1 Doctor and was himself negligent in the treatment and referred the case law titled as Om Spero Hospital Versus Raj Kumar Sharma, 2014(2) CLT page 600 wherein it has been held that Consumer Protection Act, 1986, Section 2(1)(g)- Medical Negligence- A doctor is not liable to be held negligent simply on the ground that the complainant did not fully recover from the fracture suffered by him- Simply because the complainant had not favourably responded to the treatment given by the appellant-Doctor, he cannot be held liable for medical negligence by applying the doctrine of res ipsa loquitur- No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the doctor would be at stake- A single failure may cost him dear in his lapse and if such a practice to involve the medical practitioners in false cases of medical negligence continued, it would harm the fate of patients- Appeal accepted. Further referred the case law titled as B. Shyam Sunder Raj (Dr) Versus M. Pandarinath & Others, 2012(3) CLT page 507.

                        Lastly, learned counsel for Op no.1 doctor prayed for dismissal of complaint.

11.                   After hearing the arguments advanced by counsel for Op No.1 doctor and going through the contents of the complaint as well as reply and documents placed on file, we are of the considered view that there is a deficiency in service on the part of OP No.1 doctor as the OP No.1 Doctor has totally failed to place on file any record in respect of treatment given to the complainant as well as admission of the complainant in his hospital whereas he has admitted in para No.11 of the written statement under the head brief facts of the case that complainant visited the hospital of OP doctor on 20.12.2011 and discharged from the hospital on 22.12.2010 and the Op No.1 doctor put the required number of three (3) stitches on the patient’s finger and dressed it. Further, the OP no.1 doctor has also not placed on file any consent obtained from the complainant before giving the treatment in question whereas he has mentioned in para No.11 of the reply that patient and his relatives were informed that he will do his best to save the finger of the patient but no guarantee of survival of the patient’s finger was given as the blood supply in that finger was doubtful. We have perused the prescription slips/discharged slip dated 22.12.2010 Annexure C-1 wherein the OP No.1 doctor has nowhere mentioned that the complainant was advised to follow up the treatment and get the dressing of the finger in question from the Op No.1 doctor. In this prescription slip, the OP doctor has only recommended/ prescribed three tablets for 2-3 days except this one nothing has been prescribed by the OP No.1 Doctor. So, the version of the Op No.1 doctor that he obtained the treatment from some local quack i.e. Dr. Bangali in saraswati Market, Bilaspur is not tenable. Even from the other angle also when the complainant and the OP No.1 doctor is of the resident of the same place i.e. Bilaspur then no question arise to visit any other doctor for the purpose of treatment/dressing at the same place. Although the complainant has not placed on file any expert opinion that there was any negligence in treatment but even then it is admitted case of the Op No.1 doctor that gangrenous was developed in the finger of the complainant and due to that the said finger of the complainant was amputated which is duly evident from the hospital record of Dr. Sumesh Garg of Vignesh Hospital Annexure C-2 to C-4. The law referred by the counsel for the OP No.1 is not disputed but not helpful in the present case as the every case has its own facts and circumstances. If there was no negligence or carelessness on the part of Op No.1 doctor then why he has not placed on file any indoor record of the complainant in question and further why he has not obtained the consent of the complainant prior to giving treatment. It is not the case of the OP No.1 doctor that the complainant as well as his attendant were not in a position to give any consent. It is settled law that prior to giving any treatment, the doctor has to obtain the consent and the same view has been held in case titled as Sumitra Kohli Versus Dr. Prabha Manchanda and another , 2008(2) Supreme Court Cases wherein principles relating to consent were laid down as under:-

                        We may now summarize Principles relating to consent as follows:

1. A doctor has to seek and secure the consent of the patient before commencing a ‘treatment’ (the term ‘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 is consenting to.
2. 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 judgment as to whether he should submit himself to the particular treatment 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.  

12.                   In the circumstances and going through the above noted facts, we are of the considered view that the complainant might have lost his finger due to the wrong treatment given by OP No.1 doctor. Hence, the complainant is entitled for relief.

13.                   Having held that there was carelessness and negligence on the part of the OP No.1 Doctor in giving the treatment to complainant, the ultimate question is as to what should be the reasonable compensation to which the complainant is entitled in the present case. What is meaning by compensation within the meaning of section 14 of the Consumer Protection Act 1986 has been considered and answered by the Hon’ble Supreme Court in case of Gaziabad Development Authority Versus Balbir Singh 2004 Volume 5 Supreme Court Case page 65 wherein it has been defined in the legal sense that it may constitute actual loss or expected loss and may extent to physical, mental or even emotional suffering and insult injury and loss, thus the Forum in the act is entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him. In the present case, the complainant has claimed a sum of Rs. 80,000/- on account of loss of finger, loss of work and on account of mental agony, harassment as well as litigation expenses but no cogent evidence been placed on file. So, we have no option except to grant the compensation by way of guesswork keeping in view the circumstances of the case. We are of the view that a lump sum compensation of Rs.20,000/- (Twenty thousand only) would be adequate to meet the end of justice in this case.

14.                   Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the OPs to pay a lump sum of Rs. 20,000/- jointly and severally to the complainant and further to pay Rs. 5000/- as litigation expenses. It is made clear that as the OPs No. 1 was insured with the Op No.2, so, the OP No.2 United India Insurance Company will pay the awarded amount, being insurer of the OPs No.1 within a period of 30 days failing which complainant shall be entitled to recover interest at the rate of 6% per annum for the defaulting period.  Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court: 12.01.2017.

 

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT

                                                                                    DCDRF, Yamuna Nagar.

 

 

 

                                                                              (S.C.SHARMA)

                                                                               MEMBER