Punjab

Ludhiana

CC/19/490

Harpreet Kaur - Complainant(s)

Versus

Dr.Mdhu Gupta - Opp.Party(s)

S.D.Sharma Adv.

05 Apr 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:  490 dated 18.10.2019.                                                       Date of decision: 05.04.2024. 

 

1. Harpreet Kaur aged about 41 years wife of Hardev Singh,
2. Hardev Singh S/o. Sh. Lekhram, both the resident of #1967/14, St. No.5, G.G.S. Nagar, New Shimlapuri, Ludhiana-141003.

(Phone: 88724-06825, 99159-99350)..…Complainant

                                                Versus

1. Dr. Madhu Gupta, Medical Superintendent E.S.I.C. Model Hospital, Ludhiana, Bharat Nagar, Ludhiana-141001. (Phone:0161-2772435,36,39)
2. E.S.I.C. Model Hospital, Ludhiana, Bharat Nagar, Ludhiana-141001. (Phone:0161-2772435,36,39)
3. Dr. Gurminder Singh (attending Doctor) C/o. ESIC Model Hospital, Ludhiana, Bharat Nagar, Ludhiana-141001.

…..Opposite parties. 

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         Complainant No.1 Smt. Harpreet Kaur in                                                    person.

For OP1                         :         Complaint against OP1 not admitted vide order                                           dated 27.01.2020.

For OP2                         :         Sh. Sudhir Gupta, Advocate.

For OP3                         :         Sh. A.K. Jindal, Advocate.

 

 

ORDER

PER SANJEEV BATRA, PRESIDENT

 

1.                In brief, the facts of the case are that complainant No.1 is a working woman and is working at Teja Singh Sutantar Memorial Senior Secondary School and she was posted as a clerical-reception department. Her husband, complainant No.2, has been working at Avon Cycles Ltd. Ludhiana in billing department and is a holder of Employees State Insurance Corporation Card vide insurance No.2612593698 with E.S.I.C. Model Hospital, Bharat Nagar, Ludhiana.

                   The complainants stated that complainant No.1 along with her daughter met with an accident by school van on 13.08.2018 at about 06.45 AM due to which they received grievous injuries. FIR No.268 dated 13.08.2018, U/s.279, 337, 338, 427 IPC was lodged at P.S. Shimlapuri, Ludhiana against unknown driver. Complainant No.1 was brought to E.S.I.C. Model Hospital i.e. OP2 hospital where she was treated under OPD ticket. Complainant NO.1 suffered serious injuries and her right hand was completely crushed but OP2 did not give proper car to complainant No.1 and she was referred to Guru Tej Bahadur Sahib Hospital, Ludhiana whereas complainant No.1 repeatedly requested the OPs to refer complainant No.1 to some multispecialty hospital and needs ICU care immediately but they did not listen to his genuine requests. When complainant No.1 reached at the said hospital, the attending doctor Dr. Ish Garg found that complainant No.1 had suffered head injury, blunt trauma, abdominal injury, multiple blood transmissions and needs ICU care  as she was in shock and due to her serious condition, he referred complainant No.1 to DMC/CMC. According to the complainants, the OPs had shown negligence and deficiency in service in not caring about the initial crucial time of complainant No1. Even they wasted the time and did not provide proper treatment to complainant No.1. The complainants requested the Ops to refer complainant No.1 to some multispecialty hospital and they again sent complainant No.1 to Deepak Hospital, Ludhiana where she was admitted and was treated from 13.08.2018 to 03.09.2018 and she got plastic surgery on 29.08.2018. The complainants claimed to have suffered lot due to non-seriousness of the Ops as OP3 did not attend complainant NO.1 when there was heavily bleeding from her arm and later on seven units of blood was transmitted to her during treatment. Even due to negligence and laziness of the OPs, the treatment of complainant No.1 was delayed for approximately 4 hours and she could not get proper treatment in time.          The complainants further stated that complainant No.2 requested OP1 and OP2 to take action against OP3 but they kept on lingering the matter on one pretext or the other. Due to not receiving proper treatment, complainant No.1 got physically disabled and Medical Authority, Ludhiana has issued Disability Certificate No.PB0710619780040562          showing complainant No.1 as 40% physically disabled. As complainant No.1 was earning Rs.23,900/- by working at Teja Singh Sutantar Memorial Senior Secondary School in clerical-reception department and now she could not work due to physically disablement. The complainants further stated that the OPs have caused great mental pain, agony, torture etc. to them due to their unfair trade practice and deficiency in service for which they are entitled to compensation etc. In the end, the complainants have prayed for issuing direction to the OPs pay claim of Rs.10,00,000/- along with compensation of Rs.5,00,000/- and future loss of Rs.5,00,000/-.

2.                 The complaint as against OP1 was not admitted vide order dated 01.11.2019.

3.                 Upon notice, OP2 appeared and filed written reply by denying the facts of the complaint being incorrect. OP2 averred that EMO attended the patient on priority basis and started treatment without delay. Immediate Orthopedics and Surgery Call was sent and meanwhile the patient was administered I/V fluids, I/V antibiotics, wound lavage and tag suturing. The patient was a case of Degloving injury right arm which needed further management by plastic surgeon and as such, she was referred to Plastic Surgeon at nearest Multispecialty empanelled hospital with ICU care. OP2 further stated that despite the regular inflow of patients in casualty, the concerned patient was treated on priority basis to save her live and salvage the limb of the patient. As per the plastic surgeon opinion of GTB Hospital who advised Radiological investigation to rule out head injury, blunt trauma chest and blunt trauma abdomen, the patient was again referred to Deepak Hospital which is empanelled centre for Neurosurgery as GTB Hospital is not empanelled for Neurology/Neurosurgery services. Further as the patient was a case of Road Side Accident (RSA) with Degloving injury with profuse bleeding, to compensate for the blood loss, blood was transfused to the patient. Doctors in ESI Model Hospital treated the complainant promptly and without any delay and no time was wasted to save her life. Further as per record, the patient also sustained median nerve injury and radial artery thrombus and outcome of these injuries is unpredictable. OP2 further stated that the matter was taken up with Public Grievance Cell where complainant No.2 was called and informed about the proceedings and he was provided copy of comments of Dr. Ish Garg. OP2 have denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                 OP3 filed separate written statement and assailed by complaint by taking preliminary objections on the ground of maintainability; lack of locus standi; the complainant not covered under the definition of consumer; misuse of process of law; suppression of material facts; lack of cause of action etc. OP3 stated that no basis of damages has been disclosed which has to be disclosed as per settled principle of law. Even the complainants have failed to disclose the basis of calculation made for claiming damages.

                    On merits, OP3 reiterated the crux of averments made in the preliminary objections and facts of the case. OP3 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

5.                The complainants filed replication to the written statement filed by OP2 reiterated the facts mentioned in the complaint and controverted those mentioned in the written statement.

6.                In evidence, the complainants tendered the affidavit of complainant No.1 Harpreet Kaur as Ex. CA as well as affidavit of complainant No.2 Hardev Singh as Ex. CB and reiterated their averments of the complaint. The complainants also placed on Ex. CW1/A is the copy of e-Pehchan Card of ESIC, Ex. CW1/B is the copy of FIR No.268 of 2018, Ex. CW1/C is the copy of OPD ticket dated 13.08.23018 of ESIC Model Hospital, Ex. CW1/D is the copy of outpatient card of Guru Teg Bahadur Sahib Hospital, Ex. CW1/E is the copy of discharge summary of Deepak Hospital, Ludhiana, Ex. CW1/F is the copy of reminder letter dated 01.10.2018, Ex. CW1/G is the copy of letter dated 16.10.2018, Ex. CW1/H is the copy of Disability Certificate dated 22.08.2019 of Harpreet Kaur, Ex. CW1/I is the copy of Staff Identity Card of Harpreet Kaur, Ex. CW1/J is the copy of salary certificate dated 15.06.2019 of Ms. Harpreet Kaur, Ex. CW1/K is the copy of OPD case sheet summary of ESIC Model Hospital, Ludhiana Ex. CW1/L is the copy of  disability certificate dated 23.08.2021 of Harpreet Kaur and closed the evidence.

7.                On the other hand, the learned counsel for OP2 tendered affidavit Ex. RA of  Dr. Bhairavi Deshmukh, Medical Superintendent of ESI Model Hospital, Ludhiana along with document Ex. R1 is the copy of Dashboard – Proceed for Payment  (by ESIC) and closed the evidence.

                   Learned counsel for OP3 tendered affidavit Ex. RW1/A of Dr. Gurminder Singh, R/o. Ram Watika Street, Near Canal Colony Bassi Jana, Hoshiarpur along with documents i.e. Ex. R1 is the copy of injury report dated 19.03.2019, Ex. R2 is the copy of injury report dated 19.03.2019, Ex. R3 is the copy of treatment chart, Ex. R4  is the copy of Referral Form (Permission Letter), Ex. R5 is the copy of OPD ticket dated 13.08.2018 of ESIC Model Hospital, Ludhiana, Ex. R6 is the copy of treatment chart and closed the evidence. 

8.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statements along with affidavits and documents produced on record by the both parties.

9.                Complainant No.2 Hardev Singh, husband of complainant No.1 Harpreet Kaur, is the holder of E-pehchan Card issued of Employees State Insurance Corporation which entitles complainant No.2 and his dependent for treatment in the empanelled hospitals of Employees State Insurance Corporation. On 13.08.2018, complainant No.1 along with her daughter met with an accident about 07.00 AM and she sustained injuries. She was immediately removed to OP2 ESI Model Hospital where first-aid was given to her as per OPD ticked Ex. CW1/C = Ex. R5. The patient was conscious and oriented and she had injuries on her head, right arm etc. Since the injuries on the person of complainant No.2 required treatment by Orthopedic and Plastic Surgeon, so she was referred to nearby empanelled hospital Guru Teg Bahadur Hospital. As per record, the patient reached at Guru Teg Bahadur Hospital at 08.57 AM and remained there about an hour. The radiological investigations were conducted there. Since Guru Teg Bahadur Hospital was not empanelled for Neurology/Neurosurgery services, she was again referred to multispecialty hospital having such facilities. Finally, complainant No.1 was admitted at Deepak Hospital at 11.25 AM. She was discharged on 03.09.2018 in satisfactory condition. The treatment and course provided to her in Deepak Hospital as mentioned in discharge summary Ex. CW1/E reads as under:-

“Patient admitted with alleged h/o RTA. Patient was thoroughly examined & investigated. As the pt. was in shock & respiratory distress, she was resuscitated with I/V fluid/antibiotics/high flow oxygen. ICD was placed on right side which drained 750 ml blood. 7 units of blood were transfused. Pt. was daily seen by General Surgeon, Orthopaedic, Neurosurgeon & Plastic Surgeon for relevant injuries. After stabilization of pt. from Chest & when general condition of pt. improve. She was taken up for plastic surgery on 29.08.18. Regular dressings were done by plastic surgeon & rest of injuries (orthopaedics, blunt trauma chest, blunt trauma abdomen) were managed conservatively. Pt. improved & is being discharged in progressing condition.”

 

10.              The complainants have also relied upon disability certificate dated 22.08.2019 Ex. CW1/H as well as dated 23.08.2021 Ex. CW1/L wherein complainant No.1 is shown to be 40% physically disabled. The grievance raised by the complainants is that there was delay of 4 hours till complainant No.1 received proper treatment and due to this, she was declared 40% physically disabled and also affected her employment with school where she was working as a clerk. Now the point of issue that arises for consideration whether the treating doctors/hospital were medically negligent?

11.              Legally speaking, Medical negligence is a breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill resulting an injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient.

 

12.              A reference can be made to case titled as Jacob Mathew Vs State Of Punjab & Anr. 2005(2) Apex Court Judgments 136 (SC) whereby the Hon’ble Supreme Court of India summed up the law on medical negligence in the following words:-

“48. (1) Negligence is the breach of a duty caused by omission to do something which 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he 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. 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. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the 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 not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

 

13.              Further, reference can also be made to the case title Dr. (Mrs.) Chandarani Akhouri and others Vs Dr. M.A. Methusethupathi & others in II (2022) CPJ 51 (SC) whereby it has been held by the Hon’ble Supreme Court of India in para No.27 of its judgment which is reproduced as under:-

“27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

 

14.              Adverting to the merits of the case, it can be easily borne out from the record that complainant No.1 reached OP2 hospital within few minutes from the accident and she was treated on priority in the emergency of OP2 hospital. Immediate orthopaedic and surgery calls were made and in the meantime, she was administered IV fluids along with antibiotics and suturing was also done. The injury on the right arm required expertise of plastic surgeon, so she was referred to multispecialty hospital. Even at Guru Teg Bahadur Hospital she was given proper attention and all possible investigations were carried out. Since Guru Teg Bahadur Hospital was not empanelled for Neurology/Neurosurgery services and she was again referred to another multispecialty empanelled hospital i.e. Deepak Hospital where she remained admitted from 13.08.2018 to 03.09.2018. There is no evidence on record to infer that there was delay in treatment of complainant No.1 either of the three hospitals. In fact, it is due to impact in the accident which has actually resulted in causing degloving right arm injury which found the basis of grant of disability certificate to complainant No.1. No medical expert opinion has been produced by the complainants to prove the claim that delay in four hours has caused disability to complainant No.1 nor any opinion of medical authorities who issued disability certificate has been brought on record to assert that disability has occurred due to negligence in the treatment.

15.              The initial onus to prove the deficiency was on the complainants but they have failed to discharge the same. In this regard, a reference can be made to case title Bombay Hospital & Medical Research Centre Vs Asha Jaiswal & others I (2022) CPJ 3 (SC) whereby the Hon’ble Supreme Court of India has held in paragraphs 32 and 34 of judgment, which is reproduced as under:-

32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam12, this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. This Court held as under:

“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the in- violable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] 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 evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta robanda as well as the facta probantia.”

34. Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others (2021) SCC Online SC 673  held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence.”

 

By applying the ratio of above citations, the complainants have failed to prove medical negligence against the opposite parties conclusively.

16.              As a sequel of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

17.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

Announced in Open Commission.

Dated:05.04.2024.

Gobind Ram.