Punjab

Nawanshahr

CC/111/2014

Gurdev Ram - Complainant(s)

Versus

Dr.Munish Jindal - Opp.Party(s)

Gulshan Rana

27 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SHAHEED BHAGAT SINGH NAGAR

Consumer Complaint No.         :     111 of 01.10.2014

Date of Decision:                    :     27.07.2016

 

Gurdev Ram, aged 61 years, son of Kartar Chand, son of Jawala Ram, Resident of Bika, Post Office, Khan Khana, Tehsil Banga, District SBS Nagar.

                                                                …Complainant

Versus

1. Dr. Munish Jindal, c/o Virk Hospital and Maternity Home, 192-193, Shri Guru Hargobind Nagar, Phagwara-144401
2. Guru Nanak Mission Hospital, Dhahan-Kaleran, Tehsil Banga, District S.B.S. Nagar-144505
3. Virk Hospital and Maternity Home, 192-193, Shri Guru Hargobind Nagar, Phagwara-144401
4. United India Insurance Company Limited, 42-C, 3^rd Floor, Moolchand Commercial Complex, New Delhi – 110024

                   …Opposite Parties

Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

MRS.NEENA SANDHU, PRESIDENT

S.KANWALJEET SINGH, MEMBER

 

ARGUED BY:

For complainant            :         Sh.Gulshan Rana, Advocate

For OP No.1                            :         Sh.Nipun Bhalla, Advocate

For OP No.2                            :         Sh.Vanit Kumar, Advocate

For Op No.3                            :         Sh.D.P. Bali, Advocate

For Op No.4                            :         Sh.Santokh Singh, Advocate

 

ORDER

MRS.NEENA SANDHU, PRESIDENT

Sh.Gurdev Ram has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as the O.Ps.)

2.       In brief the case of the complainant is that he is resident of Village Bika, Post Office Khan Khana, Tehsil Banga, District SBS Nagar and prior to the injury he was working as meson to earn his livelihood and has no other source of income. On 12.7.2013, while doing his job, he fell down from the building and suffered an injury in his right leg. He was immediately brought to the Mahindra Hospital, Banga. After giving the primary treatment, the said hospital shifted him to Guru Nanak Mission Hospital, i.e. O.P. No.2 and he was admitted there vide CR No.2013/7/12/150. At the time of his admission in the OP No.2-hospital, the scope of recovery was enquired, the O.P. No.1 and O.P. No.2 had assured that he would recover very soon from the said injury. On the said assurance, he was admitted, treated and operated by OP No.1 in the OP No.2 hospital.  He remained admitted in the said hospital from 12.07.2013 to 25.7.2013. During this period, he was operated (P.F.N.) on 10.07.2013. He was advised to come to the hospital for the removal of the stitches on 27.7.2013 and for follow up treatment. During this period, he was treated and operated by Doctor Munish Jindal. One rod was fitted/implanted in his right leg. The OP had charged Rs.15,000/- during this period from him and he incurred more than Rs.25,000/- on the medicines etc. On 27.07.2013, when he was brought to the hospital, then he came to know that Dr. Munish Jindal, had left the job from the OP-2 hospital, he was advised by the employees of the hospital to go to Virk Hospital and Maternity Home, 192 -193, Shri Guru Hargobind Nagar, Phagwara as Dr. Munish Jindal was posted there. He approached Dr. Munish Jindal in the Virk Hospital, Phagwara who again assured him of complete recovery. On 3.11.2013, he was admitted in the Virk Hospital, Phagwara for a period of more than one month and was discharged on 9.12.2013, vide MR No.10747 and I.P. No.768. During this period, Dr. Munish Jindal, was the doctor incharge for his treatment. He got operated there by Dr. Munish Jindal, who fitted some screws in his right leg. The O.P. No.3, had charged more than Rs.45,000/- from him and he incurred more than Rs.25,000/- on medicines etc. He was discharged from the Virk Hospital, on 9.12.2013, but the pain in his right leg still persisted and it has become difficult for him to walk and sleep. He had also spent lot of money to go to hospital and come back, as he himself was unable to move. The operation has not proved successful due to the negligence on the part of Dr. Munish Jindal. Being a doctor, he had certain duties i.e. duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment of give or a duty of care in the administration of that treatment. Breach of these duties by the Dr. Munish Jindal, called for action of negligence against him.  The OPs No.2 & 3 are also liable for improper treatment of the complainant as they had engaged said Doctor, who did not perform his duties properly. When his condition did not improve, then he got himself checked from Shri Gurdev Hospital, Banga, Chandigarh Road, Banga. The doctors of Shri Gurdev Hospital, Banga had opined that one more operation is required. He had already spent all his hard earned money on his treatment and now he had no money for another operation. The OPs have treated him in a most careless and reckless manner and had played with his life.  He is still unable to move and is suffering from severe pain.  As such he had suffered lot of mental agony and physical harassment at the hands of OPs. The OPs are thus deficient in providing services. Therefore, complaint be allowed and the OPs be directed to pay Rs.1,10,000/-. They be also directed to pay Rs.1,00,000/- as damages for negligence and deficiency in service along with interest @ 18% per annum from the date of filing of complaint till its realization, or any other relief as this Hon’ble Forum deems fit, in the interest of justice. 

3.       On being put to notice, Op No.1 has filed written version taking preliminary objections; that the present complaint is misconceived, groundless, frivolous, vexatious and scurrilous and has been filed without any justified reason/cause and has been filed against the OP No.1 just to harass, defame and extract money illegally; that the complainant has failed to explain as to how the OP No.1 was negligent; that no cause of action has arisen against the OP No.1 as the allegations leveled by the complainant are totally false, fabricated, wrong and baseless; that the compliant is bad for non joinder of necessary parties. On merits, it is stated that the complainant was 60 years old, very obese, addicted to drug and had osteoporosis. With this history, he had suffered right side fracture of femur sub trochanteric in nature, which was comminuted and unstable for which surgical treatment for proximal femoral nail (PFN) was done diligently, prudently, with utmost due care and caution by OP No.1 at the OP No.2 hospital. He was re-operated for tightening of one loose screw with bone grafting at OP No.3 hospital, which was later on removed. Thereafter, complainant lost to follow up. The bone union after bone graft could only increase the chances but it did not mean at definite union had occurred. Screws coming out means complainant did something which he was not supposed to do. Rest of the allegations made in the complaint have been denied and a prayer has been     made for dismissal thereof, with costs of Rs.10,000/- as envisaged under Section 26 of the Consumer Protection Act, 1986 for filing false and vexatious complaint, in the interest of justice.

4.       The learned counsel for the OP No.2 has filed written version taking preliminary objections; that the complaint is not maintainable without impleading United India Insurance Company with whom Guru Nanak Mission Hospital, Dhahan Keleran was insured vide policy No.110502/46/14/32/00000058 effective from 14.04 hrs of 10.09.2014 to midnight of 09.09.2015; that the complaint is bad for non joinder of necessary party; that the complainant is guilty of suppressing and concealing the relevant and material facts, complaint involved leading of evidence and expert opinion in this matter which cannot be adjudicated in summary manner under Consumer Protection Act, 1986 and can only be decided by the Civil Court of competent jurisdiction. On merits, it is stated that the complainant was admitted in Guru Nanak Mission Hospital, Dhahan Kaleran for treatment, however the allegations regarding giving assurances by it is incorrect. Pardeep Kumar, attendant of the complainant has given undertaking that he was explained regarding the seriousness of injuries and that it could be fatal to the life of the complainant and that knowing this well, he got admitted the complainant for treatment. The consent was given in the category of high risk consent on 12.7.2013, that immediate blood transfusion was required and the attendant shown his inability to arrange the blood and there was delay of one day. Amrik Singh, son of the complainant was duly intimated about the said fact in writing. It is stated that the complainant was discharged on 25.7.2013, with prescription of medicines advised to be taken and was also told regarding precautions. He was operated after obtaining proper consent knowing the consequences of treatment/operation. It is further stated that complainant was not advised to go to Virk Hospital and Maternity Home, Phagwara, where Dr. Munish Jindal, had joined after leaving the   O.P. No.2 hospital. There were other competent and qualified doctors to provide him follow up treatment, but he himself not opted to take follow up treatment from the answering O.P. and had preferred to go to Virk Hospital and Maternity Home, Phagwara, the answering OP cannot be held responsible in any way. The treatment of the complainant was done at Guru Nanak Mission, Hospital, Dhahan Kaleran, in very efficient and competent way and without any deficiency and negligence. It is further stated that Dr. Munish Jindal, is a qualified Orthopedician and competent to operate in the case like that of complainant. He is having sufficient experience for treating similar cases, no breach of duties was committed by the said doctor or any other staff member during the treatment of the complainant at this hospital.  Rest of the allegations made in the complaint have been denied and a prayer has been made for dismissal of the complaint.

5.       Learned counsel for Op No.3 has filed written version taking preliminary objections; that the complainant has no cause of action to file this complainant against OP No.3; that the complainant has filed a frivolous complaint against it. On merits, it is stated that complainant was admitted in the Virk Hospital for treatment on 03.11.2013 and was discharged on 09.12.2013.  During this period, treatment was given him with due care and skill without any deficiency in service on the part of OP No.3.  It never adopted unfair trade practice and always did whatever was in the best interest of the complainant.  OP No.3 was never negligent in treating the complainant.  The allegation in para No.5 that “The operation was not successful due to negligence of Dr.Munish Jindal” is vague and without any proof.  It is stated that all the doctors engaged by the answering OP are well qualified and Dr.Munish Jindal, is a famous orthopedic surgeon.  Even the para medical staff of the hospital are well qualified and their approach towards patients is most humane and compassionate.  It is stated that in the instant case, the patient’s pain was not due to any deficiency in services.  Patients have residual morbidity because of disease suffered and there are still many ailments, where the medical profession has limitations and 100% cure is not possible.  In such cases, in spite of all possible care and treatment, patients may land up with residual abnormalities, and this did not indicate that the healthcare provider or the healthcare establishment was negligent.  It is prayed that the complaint being frivolous may be dismissed with costs, as per Section 26 of the Consumer Protection Act, 1986 and damages be awarded to the OP No.3 for having been dragged to the Hon’ble Forum without sound reasons. 

6.       The Op No.4 has filed written version taking preliminary objections that answering OP is not liable to compensate the complainant for any treatment given by insured/OP No.1 because as per exclusion clauses of insurance policy, the OP No.4 is not liable to indemnify for any criminal act or any act committed in violation or ordinance or services by insured; complaint is not maintainable; because it requires lot of technical and medical evidence and lengthy trial which is only possible before Civil Court and this Forum has no jurisdiction to entertain and adjudicate this complaint.  On merits, it is stated that if OP No.1 had committed any criminal neglence in treating the complainant then the OP No.4 is not liable to indemnify the OP No.1. Each and every other averments of the complaint are denied and prayed for dismissal of the complaint.  

7.       On being called to do so, the learned counsel for complainant has tendered affidavit of complainant Ex.CW1/A alongwith photocopies documents Ex.C-1 to Ex.C54, affidavit of complainant Ex.CW1/A1, doctor report Ex.C-55 and closed the evidence.  The learned counsel for the OP No.1 has tendered affidavit of Dr. Munish Jindal, Ex.OP1/A along with photocopies of documents i.e. insurance policy (consisting 2 pages) Ex.OP1/1, medical certificate (consisting 3 pages) Ex.OP1/2, medical record of Guru Nanak Hospital (consisting 88 pages) Ex.OP1/3, affidavit of Dr.Munish Jindal Ex.OP1/A/A and closed the evidence.  Sh.Malkiat Singh has tendered his affidavit as Ex.RW1/A and closed the evidence.  Learned counsel for OP No.3 has tendered affidavit of Amandeep Singh as Ex.OP3/A and closed the evidence.  Learned counsel for OP No.4 has also tendered affidavit Ex.OP4/A alongwith insurance policy Ex.OP4/B and closed the evidence.

8.       We have heard the learned counsel for the parties and have also gone through the record carefully. 

9.       The learned counsel for the complainant submitted that the complainant had a fracture in his right leg and he approached the OP No.1 for treatment.  The OP No.1 affixed/implanted a rod in his right leg. OP No.1 operated upon his right leg thrice, inspite of that pain still persisted and it is difficult for him to walk and sleep, this shows that the O.P. No.1 was negligent in performing the operation and the Doctor of Shri Gurdev Hospital, Banga, has opined that one more operation is required. The complainant has already spent an huge amount on the operation and he has no money for another operation. He further submitted that since complainant has spent huge amount on his treatment and operations conducted for affixing rod has been proved unsuccessful, therefore, OPs be directed to refund the amount which he spent on his treatment. They be also directed to pay compensation for the mental agony and physical harassment suffered by him alongwith litigation expenses. 

          On the contrary, the learned counsel for the OP-1 submitted that Dr.Munish Jindal - OP No.1 has treated the complainant diligently as per medical norms and by adopting proper procedure. He submitted that complainant was 60 years old, very obese, addicted to drugs and has osteoporosis had suffered right side fracture of femur sub trochanteric, for which surgical treatment for proximal femoral nail (PFN) was done by Op No.1 at OP No.2 hospital. The complainant was re-operated for tightening of loose screw with bone grafting at OP No.3 hospital.  He further submitted that Dr.Munish Jindal is well qualified orthopedican and he had treated the complainant with competence, thus he cannot be said to be guilty of medical negligence. From the bare perusal of the expert report submitted by PGIMER, it is crystal clear that O.P. No.1 has given the treatment acceptable to medical profession. There is no medical negligence on the part of treating doctor, hence this complaint be dismissed with costs being devoid of merits. 

          The learned counsel for the OP No.2 i.e. Guru Nanak Mission Hospital, submitted that it is true that operation of the complainant for implantation of rod in his right leg was done by OP No.1 at OP No.2 hospital.  However, on the basis of the report submitted by PGIMER, the OP No.1 cannot be said to be negligent and no liability cannot be fasten either against the said doctor or against the hospital, therefore the complaint filed qua OP No.2 is liable to be dismissed with heavy costs.

          Similar arguments were put forth by learned counsel for OP No.3.

          The learned counsel for the OP No.4 submitted that from the documents placed on record and from the report of PGIMER, it is evident that there is no negligence on the part of OP No.1, therefore, being insurer the complaint filed against OP No.4 is liable to be dismissed.

          Admittedly, complainant was operated upon by the OP No.1 for implantation of rod in his right leg.  The allegation of the complainant is that inspite of the fact that his right leg was operated upon thrice by OP No.1, but pain still persisted and he is unable to walk and sleep.  On the other hand the stand of OP No.1 was that he had conducted the operation with due care and diligently as per medical norms and there is no negligence on his part.  The complication has arisen because proper precaution has not been taken by the complainant after the operation. In order to resolve the controversy, the Bench preferred to refer this case to PGIMER, Chandigarh, seeking expert opinion of the doctors of orthopedic department.  Accordingly, on 06/05/2016 the record/file of this case in original was sent to the Director, PGIMER, Chandigarh.  The report dated 27/05/2016 furnished by panel of doctors constituted by the Director of PGI has been received by this Forum on 01/06/2016, where it is opined that:-

          “As per available record, the patient sustained subtrochanteric fracture and it was fixed with PFN.  Backout of screws are known issues inherent to implant.  Bone grafting is the procedure of choice in case of delay or non union.  The Board is of the opinion that is the normal sequelae of fracture treatment”.

From the said report, it is evident that Board of Doctors opined that standard medical practice was followed by the treating doctor. In the case of Kusum Sharma Vs Batra Hospital(2010)3 SCC 480 the Hon’ble Apex Court has held that negligence could not be attributed to a doctor so long as he performed his duties with reasonable skill and competence. 

          In Hucks Vs Cole & Anr (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”.

          In Martin F. D’souza Vs Mohd. Ishfaq, 2009 (2) CLT 381 (SC), Hon’ble Supreme Court observed as under:-

            “From the principles mentioned herein and decisions relating to medical negligence it is evident that doctor 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 care provided he appeared in it and made his submission”.

           It may be stated that the expert report furnished by PGIMER cannot be brushed aside because it is a best piece of evidence. No evidence has been led by the complainant, contrary to the said report or how the expert report is wrong. We have no reason to disagree with the opinion given by the experts of PGIMER, Chandigarh.  In the case of Shashi Bala Vs Chahal Hospital 2015 (3) CLT 159 (PB), the Hon’ble State Commission, Punjab, has held that Judges are just the laymen in medical science and they need expert bodies report to assist them in coming to the correct conclusion- Expert report is relevant under Section 45 of the Evidence Act in deciding such type of controversy.           

          Taking all these facts and circumstances into consideration, we hold that there is no negligence on the part of O.P. No.1 and the complaint filed against him is liable to be dismissed. In the absence of any cogent and convincing evidence, even the complaint filed against the O.Ps. No.2 & 3 is also liable to be dismissed. Since, it has already been held that the O.P. No.1 is not guilty of medical negligence, therefore, the complaint filed against the insurer i.e. O.P. No.4 is also liable to be dismissed.

10.     In view of the aforesaid discussion, we do not find any merit in the complaint. Consequently, we dismiss the same without any order as to the costs 

11.          The certified copies of this order be supplied to the parties free of costs, as per rules and file be indexed and consigned to the Record Room.

Dated:  27.07.2016

                                                          (NEENA SANDHU)

                                                          President

         

                                                          (KANWALJEET SINGH)

                                                          Member