Punjab

Ludhiana

CC/19/19

Balraj Singh - Complainant(s)

Versus

Dr.Neelam Bhatia - Opp.Party(s)

Janamjit Singh Adv.

15 Dec 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:19 dated 04.01.2019.                                                 Date of decision: 15.12.2023.

 

1. Balraj Singh, Aged about 42 years Son of Sh. Baldev Singh, Resident of Patti Akali, Village Bakhatgarh, Tehsil and District Barnala.
2. Manveer Kaur, Aged about 10 years minor daughter of Sh. Balraj Singh (complainant No.1),
3. Ranveer Singh, Aged about 7 years, minor son of Sh. Balraj Singh (complainant No.1), both minors through their father, natural guardian and next friend Sh. Balraj Singh Son of Sh. Baldev Singh, Resident of Patti Akali, Village Bakhatgarh, Tehsil and District Barnala.                                                                                                ..…Complainants

                                                Versus

1. Dr. Neelam Bhatia, Medical Officer, Community Health Centre (CHC), Gurusar Sudhar, District Ludhiana.
2. Community Health Centre (CHC), Gurusar Sudhar, District Ludhiana through its Senior Medical Officer/Incharge Dr. Neelam Nakra,
3. The Director, Health & Family Welfare Department (Punjab), Parivar Kalyan Bhawan, Sector 34-A, Chandigarh.
4. State of Punjab, through Secretary, Health & Family Welfare (Punjab), Room No.510, 5^th Floor, Mini Secretariat, Chandigarh.                                                                           …..Opposite parties

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

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         Sh. Janamjit Singh, Advocate.

For OPs                         :         Sh. L.D. Gupta, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that complainant No.2 and 3 are minor daughter and son of complainant No.1 and present complaint has been filed by them through complainant No.1, who is their father, natural guardian and next friend. The complainants stated that Smt. Jagdeep Kaur @ Mandeep Kaur, aged 31 years was wife of complainant and mother of complainant No.2 and 3.

                   The complainants further stated that Jagdeep Kaur @ Mandeep Kaur, who was resident of Barnala, came to her parents house at Ludhiana for summer holidays  on 01.06.2018, where local Asha Worker namely Kiranjit Kaur and A.N.M. Karamjit Kaur of Sub Centre, Bhaini Baringa working under Community Health Centre, Pakhowal, Ludhiana approached her and told about scheme of Heath & Family Welfare Department to undergo sterilization operation as she had already two children. Being inspired by said ladies, on 08.06.2-018, Jagdeep Kaur along with her mother Smt. Jaswinder Kaur and Asha Worker Kiranjit Kaur went to C.H.C. Gurusar Sudhar where OP1 a Gynecologist, explained about the sterilization operation and told her to undergo Laparoscopic Tubectomy, a safe and risk free surgery, without any complications. Jagdeep Kaur after agreeing for the said surgery, paid required fee and some medical tests were conducted at C.H.C. Gurusar Sudhar and after the reports, she was taken to operation theater at 02.15 PM, where she remained up to 03.00 PM and thereafter, shifted to general ward. After the operation she told her mother that she was not given proper anesthesia due to which she suffered acute pain during operation. Without any advice for follow up check-up, Jagdeep Kaur was sent to her home. On 09.06.2018, Jagdeep Kaur felt pain in her abdomen upon which local Asha Worker was contacted who after telephonic conversation with OP1, told that it is a routine pain suffered after operation and advised Jagdeep Kaur to take medicines for relief from pain but she felt pain for the whole day.

                   The complainants further averred that on 10.06.2018, the condition of Jagdeep Kaur did not improve and she was taken to Civil Hospital, Barnala and after medical examination, Dr. Dipika Gupta observed that her abdomen area was swollen and her blood pressure had fallen down and she was not urinating. The doctor advised for surgery and as the condition of Jagdeep Kaur was critical, so she was referred and taken to Rajindra Hospital, Patiala for intensive care. On 10.06.2018, complainant No.1 took Jagdeep Kaur to Rajindra Hospital where she was medically examined by a team of Doctors and taken to intensive care unit. The doctors advised emergency surgery for which consent of death on table before surgery was received. After the surgery, the doctors told complainant No.1 that there was a cut in her intestine which has been repaired and they have also removed five liter toilet from her body. Jagdeep Kaur was kept on ventilator in ICU due to critical condition. However, she could not survive and died on 12.06.2018 in morning. The complainants further stated that as per Medical Certificate of Cause of Death issued by Rajindra Hospital, Patiala, the main cause of death of Jagdeep Kaur is septicemia shock, multiple organ failure and internal perforation post laparoscopic tubectomy.

                   The complainants further stated that Laparoscopic Tubectomy (also known as Laparoscopic Tubal Ligation) is a surgical procedure to sterilize a woman. In Laparoscopy, a Surgeon makes a small cut on the outside of the body of the patient and a thin tube is inserted into the incision of the patient. Then the Surgeon inserts Laparoscope through the said tube and other instruments are also placed through the Laparoscope to view, cut, repair tissue etc. into the body of patient. The major risks of Laparoscopy puncturing are of organ, bleeding, infection etc. According to the complainants, OP1 who performed the Laparoscopic Tubectomy on Jagdeep Kaur @ Mandeep Kaur, has failed to take care proper and precaution at the time of performing her operation and caused a cut in the intestine of Jagdeep Kaur @ Mandeep Kaur by working in a very rash, careless and negligent manner. The risks and precautions involved in the operation were not explained by OP1 and she had conducted the operation in a very casual manner. Even after the operation, OP1 did not bother to conduct a post operation medical examination or suggest post operation follow up of the patient. Moreover, Jagdeep Kaur @ Mandeep Kaur was suffering from pain in the next day of operation, but OP1 did not bother to suggest ANM Karamjit Kaur to bring her for medical examination rather she told that it is a routine pain suffered after operation. Hence, OP1 has performed the Laparoscopic Tubectomy surgery in negligent manner which caused death of Jagdeep Kaur @ Mandeep Kaur. Further as per opinion of Dr. Gurjeet Singh Sandhu, Senior Resident Surgery Unit, Rajindra Hospital, Patiala, the perforation, due to which the patient died, was due to injury caused by Laparoscopic Tubectomy surgery as one of the main reasons. Even Jagdeep Kaur @ Mandeep Kaur was medically fit before the operation evident from her medical tests conducted on 12.04.2018, 22.05.2018 & 02.06.2018.

                   The complainants further stated that complainant No.1 along with other family members met OP2 for proper inquiry into the mater but he failed to do so. Even the matter was taken to Local MLA, Human Rights Commission, Chief Minister, Health Department, SSP Ludhiana, SDM Raikot and local newspapers. Even a complaint was made to Civil Surgeon, Ludhiana on 18.06.2018 upon which an inquiry commission was appointed but they did not conduct the inquiry in s proper manner. Moreover, the statements of the concerned parties, witnesses and doctors were not recorded and finding of the inquiry was held in favour of OP1. According to the complainants, Jagdeep Kaur @ Mandeep Kaur died due to negligence on the part of OP1. Jagdeep Kaur @ Mandeep Kaur was an earning member of the family by doing stitching work and was earning Rs.25,000/- to Rs.30,000/- per annum. Due to death of Jagdeep Kaur @ Mandeep Kaur, the complainants claimed to have suffered unbearable loss, mental pain, agony and loss of income for which they are entitled for compensation to the tune of Rs.18,00,000/- in all and the Ops are liable to pay the same to the complainants.

2.                Upon notice, OP1 filed written statement and assailed the complaint by taking preliminary objections on the ground of maintainability and concealment of facts; the complainants are restrained from filing this complaint; the complainants have not approached this Commission with clean hands; the complaint is liable to be dismissed U/s.26 of the Consumer Protection Act; ack of cause of action etc. OP1 averred that since deceased Mrs. Jagdeep Kaur wife of complainant No.1 and mother of complainants No. 2 and 3 was availing the services of the opposite parties absolutely free and without any consideration, so, as per Section 2 (d) (i) (ii) of the Consumer Protection Act, 1986 neither deceased Mrs. Jagdeep Kaur nor the complainants are "Consumer". Section 2 (d) is reproduced as under:-

“Consumer means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services ++++”

 

Moreover, the service rendered or provided free of cost or charge would not fall within the definition of "Service" as defined U/s.2 (I) of the Consumer Protection Act 1986 as neither the deceased nor the complainants had paid any consideration to the OPs for availing their services. However, the OPs provided these services absolutely free and without any consideration. Even the Ops do not charge any amount for issue of Parchi, registration charges, stay, operation, medicines and no amount is being charged even for investigations, various tests and diagnosis etc. Although Jagdeep Kaur was paid cash incentive of RS.600/- by OP2. Rather the complainants have not tendered any documentary evidence in the shape of bill or receipt of any payment to the OPs.

                   According to OP1, the State Government has formulated a Policy where compensation of Rs.2 Lacs is given in case on death of such patient who has been operated in any Govt. Hospital of Punjab, which is reproduced as under:-

"If the death occurs within 7 days of discharge during or the process of sterilization operation the amount of 0 /- should be released immediately from the District Health Society funds. The balance amount of Rs.1.5 Lacs will be released only when the DISC recommends compensation under the 'Death attributable to Sterilization' to the SISC and the SISC and the SISC endorses."

 

As such, in order to get compensation for the death of his wife-deceased Mrs. Jagdeep Kaur, Sh. Balraj Singh complainant No.1 applied to OP2 on prescribed performa on 15.06.2018 for the payment of Rs.2 lacs as compensation,  supported by his affidavit along with copy of his Aadhar Card No.5008 1901 0242 and copy of his Bank Account. Sh. Balraj Singh was paid Rs.50,000/- vide DD No.992543 dated 15.06.2018 and balance of Rs.1,50,000/- was paid after receipt sanction from the Department of Health and Family Welfare, Govt. of Punjab vide DD NO.992691 dated 15.03.2019. The complainants accepted this compensation of Rs.2,00,000/- as full and final settlement of their claim arising out of unfortunate death of Mrs. Jagdeep Kaur without any objection and protest. However, the fact regarding acceptance of compensation of Rs.2,00,000/- has not been mentioned by the complainants in the complaint. Even before going for operation, Mrs. Jagdeep Kaur had given an undertaking that in case of failure of this sterilization operation or her death due to this sterilization operation neither she nor her husband nor her dependent unmarried children shall file any claim in any court of law and they shall accept the compensation given under the “Family Planning Indemnity Scheme”.  OP1 further stated that even complainant No.1 at the time of accepting compensation amount of Rs.2,00,000/- gave an affidavit that he will not file any claim for more compensation for death of his wife Mrs. Jagdeep Kaur.

                   OP1 averred that she had not been found guilty and has already been exonerated by a high powered committee of Experts which was constituted after the complaints filed by the complainants against OP1 and OP2.  It is further stated that Sh. Jaswant Singh brother of the deceased Mrs.Jagdeep Kaur filed complaint to the Civil Surgeon, Ludhiana regarding death of his sister (Mrs.Jagdeep Kaur) due to alleged negligence committed by OP1 and OP2 in performing this sterilization operation. On receipt of said complaint, the Civil Surgeon, Ludhiana constituted a high level enquiry committee of Experts consisting of:-

 

1. Dr.S.P. Singh, Distt. Family Welfare Officer, Ludhiana
2. Dr.Alka Mittal, M.O., Gynocologist, Civil Hospital, Raikot and
3. Dr.Neena Nakra, Senior Medical Officer, Sudhar.

 

The said High Powered Committee of Experts examined, cross examined made spot inspections and recorded the statements of:

 

1. Mrs.Jaswinder Kaur-mother of the deceased Mrs. Jagdeep Kaur
2. Jaswant Singh, complainant and brother of deceased Jagdeep Kaur.
3. Dr.Neelam Bhatia-against whom this complaint was filed
4. Dr.Neena Nakra, Senior Medical Officer, CHC, Sudhar
5. Dr.Abhishek Singla Emergency Medical Officer, CHC, Sudhar
6. Mrs.Surjit Kaur, Staff Nurse Operation Theater, CHC, Sudhar.
7. Mrs.Narinder Kaur Staff Nurse, CHC, Sudhar
8. Mrs.Karamjit Kaur ANM, CHC, Sudhar
9. Kiranjit Kaur Asha Worker
10. Dr.Sarabjit Kaur, Asstt. Professor, Rajindra Civil Hospital and Medical College, Patiala
11. Dr.Shami, Rajindra Civil Hospital and Medical College, Patiala
12. Dr.Gurjit Singh Sandhu, Senior Resident Surgery, Rajindra Hospital, Patiala
13. Dr.Deepka Civil Hospital, Barnala. 

 

The said High Powered Committee of experts also inspected the operation theatre of CHC Sudhar and checked the concerned record of this Sterilization operation. The statements of all the concerned Doctors of CHC, Sudhar, Civil Hospital, Barnala and of Rajindra Medical College and Hospital, Patiala were recorded and cross examined by the High Powered Committee of Experts. Similarly, statements of Staff Nurses, ANM, Asha Workers and operation theater incharge were also recorded and cross-examined by this High Powered Committee of Experts. OP1 further stated that in none of the statements of the aforementioned Doctors and other concerned para-medical staff neither any allegation of negligence was levelled against her nor it was proved against her by this High Powered Committee.

According to OP1, the actual cause of death of Mrs. Jagdeep Kaur has not been conclusively proved even till today. The High Powered Committee of Experts has stated that actual cause of death of Mrs. Jagdeep Kaur could not be ascertained because:-

1. No post mortem of the body of Mrs.Jagdeep Kaur was conducted to ascertain the actual cause of death, and
2. No Biopsy was taken by the Surgeon of Rajindera Civil Hospital, Patiala at the time of performing operation of Mrs.Jagdeep Kaur at Patiala, and,
3. Laproscoping rings of the fallopian tube of Mrs.Jagdeep Kaur were found at right place by the doctors of Rajindera Hospital, Patiala.

OP1 further stated that when actual cause of death of Mrs.Jagdeep Kaur has not been confirmed and proved conclusively, so she cannot held guilty for any medical negligence. However, on 08.06.2018 deceased Mrs.Jagdeep Kaur accompanied by her mother came to the CHC Sudhar. She was attended by OP1. The deceased Mrs. Jagdeep Kaur told OP1 that since she has already completed her family and did not want any more child, so she requested her to suggest some good and permanent measures to restrict her family. OP1 told her various Family Planning methods including the Sterilization operation and merits and demerits of each method and degree of risk involved in each Family Planning method including the details of procedure and rate of failure of each method including sterilization operation. Thereafter, Jagdeep Kaur agreed to undergo sterilization operation and she filled the consent form in the presence of her mother. On 08.06.2018, she was operated and discharge at 05.30 PM on the same day and her condition was fine, stable and according to norms. She started getting pain in her abdomen on 09.06.2018 as mentioned in the complaint, upon which her family instead of taking her to PHC Sudhar for getting proper medical treatment from OP1, took her to village RMP for treatment and wasted precious time by getting unauthorized treatment from village RMP, which must have aggravated the ailment of the deceased. Even she was taken to Civil Hospital Barnala which is more than 59 KM away from her residence. However, CHC Sudhar is only 9 KMs, Civil Hospital, Ludhiana is 17 KMs and Sub Divisional Hospital, Raikot is only 14 KMs away from residence of deceased. Thus, wasted golden hours in starting treatment to the deceased and if she had been taken to any nearby hospitals, her life could have been saved. As such, OP1 cannot be held guilty of negligence who has an expertise, experience and qualifications to perform such type of operations. OP1 further stated that she has passed her Post Graduation Degree of Medicine in Gynecology and OBsetion from Govt. Medical College, Patiala in the year 1990 and she joined the Govt. service as Medical officer. During her service, she had performed more than 2730 such operations and due to her skill and expertise in this field and by grace of God not even a single operation has failed.

                   On merits, OP1 reiterated the crux of averments made in the preliminary objections and facts of the case. OP1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                OP2 to OP4 also filed separate written statement whereby they have submitted the similar submissions as pleaded by OP1 in her statement and denied the allegations made in the complaint.

4.                In support of their claim of the complainants, complainant No.1 tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainants also tendered documents Annexure-A1 is the copy of Aadhar card of Balraj Singh, Annexure-A2 is the copy of Aadhar card of Manveer Singh, Annexure-A3 is the copy of Aadhar card of Ranveer Singh, Annexure-A4 is the copy of Aadhar card of Jagdeep Kaur, Annexure-A5 is the copy of voter card of Jagdeep Kaur, Annexure-A6, A16, A17 are the copies of newspaper cutting, Annexure-A7 is the copy of death certificate of Jagdeep Kaur, Annexure-A8 is the copy of laboratory report dated 25.05.2018, Annexure-A9  is the copy of laboratory report dated 12.04.2018, Annexure-A10 is the copy of ultrasound report dated 02.06.2018, Annexure-A11 is the copy of receipt issued by Senior Medical Officer, Civil Hospital, Ludhiana, Annexure-A12 is the copy of admission form and other medical record of Civil Hospital, Barnala, Annexure-A13 is the copy of medical record of Govt. Rajindera Hospital, Patiala, Annexure-A14 is the copy of Form No.5 regarding Medical Certificate of Cause of Death and other medical record of  Jagdeep Kaur, Annexure-A15 is the copy of letter dated 01.10.2018 written by Civil Surgeon, Ludhiana to Jaswant Singh Bading along with inquiry report of medical board, Annexure-A18 is the copy of user charges rate list issued by Department of Health & Family Welfare, Punjab and closed the evidence.

5.                On the other hand, counsel for OP1 tendered affidavit Ex. OP1/A of Dr. Neelam Bhatia, Senior Medical Officer (Rtd.) along with documents Annexure-OP-1/1 is the copy of claim form for Family Panning Indemnity Scheme, Annexure-OP-1/2 is the copy is the copy of AAdhar card of Baraj Singh, Annexure-OP-1/3 is the copy account statement of Malwa Gramin Bank, Annexure-OP-1/4 is the copy of letter dated 14.06.2018 issued by Civil Surgeon, Ludhiana to Senior Medical Officer, Sudhar, Annexure-OP-1/5 is the copy of DD No.992543 dated 15.06.2018, Annexure-OP-1/6 is the copy of DD No.992691 dated 15.03.2019, Annexure-OP-1/7 is the copy of receipt  dated 16.03.2019 regarding acceptance of Rs.2,00,000/-, Annexure-OP-1/8 is the copy of letter dated 13.02.2019 regarding release of funds for Family Planning Indemnity Scheme, Annexure-OP-1/9 is the copy consent form signed by Jagdeep Kaur, Annexure-OP-1/10 is the copy of degree of Doctor of Medicine of Neelam Bhatia, Annexure-OP-1/11 is the copy of renewal certificate issued by Punjab Medical Council in the name of Neelam Bhatia, Annexure-OP-1/12 and Annexure-OP1/18 is the copy of questionnaire asked to Jagdeep Kaur, Annexure-OP-1/13 is the copy of letter dated 03.04.2018 issued by Directorate of Heath Services Family Welfare, Punjab to All the Civil Surgeons, Punjab, Annexure-OP-1/14 is the copy notice dated 29.01.2021 issued by Punjab State Human Rights Commission to various authorities, Annexure-OP-1/15 is the copy of statement of Surjit Kaur, Staff Nurse, Operation Theatre, CHC, Sudhar, Annexure-OP-1/16 is the copy of statement of Parminder Kaur and Narinder Kaur, Staff Nurses, CHC Sudhar, Annexure-OP-1/17 is the copy of inquiry report of board of doctors, Annexure-OP-1/17/1 is the copy of ward report, Annexure-OP-1/19 is the copy of Post Operative Instruction Card, Annexure-OP-1/20 is the copy list of operations done, Annexure-OP-1/21 is the copy of Form No.5 Medical Certificate of Cause of Death, Annexure-OP-1/22 is the copy of list of beneficiaries, Annexure-OP-1/23 is the copy of indoor register admission, Annexure-OP-1/24 is the copy of medical literature regarding Gastrointestinal perforation downloaded from Wikipedia and closed the evidence.

                   The counsel for OP2 to OP4 tendered affidavit Ex. OP2/A of Dr. Devinder Kumar Sandhu, Senior Medical Officer, Community Health Centre, Sudhar, Distt. Ludhiana along with documents Ex. OP1 to Ex. OP/24 and closed the evidence.

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

7.                           During the course of arguments, it has been vehemently argued by counsel for the complainants that it is a clear cut case of acute negligence on the part of the OP1 and other staff of the hospital in conducting the Laparoscopic Tubectomy surgery. The counsel for the complainants has further contended that as a result of this,  Smt. Jagdeep Kaur @ Mandeep Kaur died on 12.06.2018. According to the counsel for the complainant, this shows that the OP1 was negligent and reckless while performing Laparoscopic Tubectomy surgery Smt. Jagdeep Kaur @ Mandeep Kaur.

8.                On the other hand, counsel for the OPs has argued that no case of negligence on the part of the OP1 is made out nor the complainants have led any cogent or convincing evidence to prove the factum of negligence on the part of the OP1. According to the counsel for the OPs, Smt. Jagdeep Kaur @ Mandeep Kaur died due to negligence on the part of her family members who took her to Civil Hospital, Barnala instead of taking her to nearby Government Health Centre like CHC Sudhar, Civil Hospital, Ludhiana. Moreover, the complainants are guilty of concealment of facts as the complainants have also accepted the compensation of Rs.2,00,000/- issued by the Government and complainant No.1 accepted the said amount vide receipt Annexure-OP1/7 dated 16.03.2019 as full and final settlement of their claim. This fact has not been pleaded in the complaint as well as in the affidavit by the complainants. Moreover, no replication/rejoinder has been filed nor any additional evidence has been adduced to rebut the allegations/contentions made in the written statements as well as evidence of the OPs.

9.                In the present case, the complainants have invoked the jurisdiction of this Commission by raising consumer dispute with regard to the medical negligence of the opposite parties by claiming herself to be the consumer of the OPs. Section 2(7) of the Consumer Protection Act, 2019 provides:-

       “Consumer” means any person who:-

(i) of the Consumer Protection Act, 2019 the consumer means a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.”

Explanation. -For the purposes of this clause, -

(a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 (b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

                   Although statutory definition of “consumer” is wide and is having efficacious coverage but each case has to be determined on the basis of peculiar facts and circumstances.

10.              In this regard, reference can be made to 1996 AIR 550 in Indian Medical Association Vs V.P. Shantha & others whereby the Hon’ble Supreme Court has held that a medical officer who is employed in a hospital renders service on behalf of the hospital administration and if the service as rendered by the hospital does not fall within the ambit of 2(1) (o) of the Act being free of charge, same service cannot be treated as service under Section 2(1) (o) for the reasons that it has been rendered by medical officer in the hospital who receives salary for the employment in the hospital. Further the services rendered by employee-medical officer to such a person would therefore continue to be service rendered free of charge and would be outside the purview of Section 2(1) (o) of the Act. The Hon’ble Supreme Court further held that the services rendered to a patient by a medical practitioner or a hospital by way of diagnosis and treatment, both medicinal and surgical, would not come within the definition of 'service' in Section 2(1) (o) and a patient who undergoes treatment under a medical practitioner or a hospital by way of diagnosis and treatment, both medicinal and surgical, cannot be considered to be a 'consumer' within the meaning of Section 2(1) (d) of the Act. The Hon’ble Supreme Court in this case has concluded as under:-

(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.

2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

3) A 'contract of personal service' has to be distinguished from a 'contract for personal services'. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a 'contract of personal service'. Such service is service rendered under a `contract for personal services' and is not covered by exclusionary clause of the definition of 'service' contained in Section 2(1) (o) of the Act.

(4) The expression 'contract of personal service' in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1) (o) of the Act.

5) Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be "service" as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

6) Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position.

7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression 'service' as defined in Section 2(1) (o) of the Act.

8) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.

9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.

11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.

12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1) (o) of the Act.

11.              Further reference can be made to Civil Appeal No.103 of 2012 in Nivedita Singh Vs Dr. Asha Bharti and others whereby the Hon’ble Supreme Court of India has dismissed the said appeal in 07.12.2021 with the following observations:-

“45. In respect of the hospitals/nursing homes (government and non-government) falling in category (i), i.e., where services are rendered free of charge to everybody availing of the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does not fall within the ambit of Section 2(1)(o) of the Act insofar as the hospital is concerned, the said service would fall within the ambit of Section 2(1)(o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. There is no merit in this contention. the medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1) WWW.LIVELAW.IN LL 2021 SC 721 3 (o), being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing the service a "consumer" under Section 2(1)(d) in respect of the service rendered to him. The service rendered by the employee-medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o).”

12.              The Laparoscopic Tubectomy Surgery of the deceased Smt. Jagdeep Kaur @ Mandeep Kaur was conducted on 08.06.2018 by OP1 and she expired on 12.06.2018 at Rajindera Hospital, Patiala. At that time, OP1 was employed as doctor at a Community Health Centre, Gurusar Sudhar, District Ludhiana, being supervised by OP3 and OP4. OP2 is a Community Health Centre being run by State Government where free services are being provided for the welfare of the public without paying any charges to the treating doctors. As such, the complainants are not the consumers of the OPs as no consideration was paid to OPs for the operation of Smt. Jagdeep Kaur @ Mandeep Kaur either by the deceased herself or on her behalf.

13.              The other point of consideration is whether OP1 was negligent in treating the patient Smt. Jagdeep Kaur @ Mandeep Kaur on 08.06.2018 which ultimately led to her death on 12.06.2018.

14.              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 skin 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.

15.              Further to prove the factum of medical negligence on the part of OP1, complainant No.1 has only tendered in evidence affidavit Ex. CA along with documents Ex. C1 to Ex. C18. However, no medical expert or a doctor has been examined by the complainants to prove the allegations made in the complaint. Admittedly, the Laparoscopic Tubectomy Surgery of Smt. Jagdeep Kaur @ Mandeep Kaur was performed by OP1 on 08.06.2018 and she died on 12.06.29018 in the hospital. It is pertinent to mention that with regard to the alleged negligence on the part of the OP1 report was sought from the Civil Surgeon, Ludhiana which is Annexure-A15 = Annexure-OP1/17 on the file. In the report by board of doctors comprising of as many as three qualified doctors, who observed that “When the patient came to hospital for Laparo Tubectomy, she was medically fit and was not having any problem. The problem which the patient suffered, it appears that same occurred after Laparo Tubectomy Perforation which was performed on 08.06.2018 at CHC Sudhar. Keepint in view the statements of Doctors of Rajindera Hospital, Patiala and Civil Hospital Barnala, this Inquiry Committee has arrived to the conclusion that the complication which occurred after operation of the patient that can be Laparoscopic Perforation but it cannot be said exactly because the Laptomy done by Surgeon, Rajindera Hospital, Patiala no biopsy of perforation was taken which can confirm the cause of perforation? As there could be more causes for perforation.

Second: No post mortem of the body of Mrs.Jagdeep Kaur was conducted to ascertain the actual cause of death,

Third: Laproscoping rings of the fallopian tube were found at right place.”

There is no categorical finding in the report of board of doctors to the effect that any medical negligence has been attributed to the treating doctor while performing operation of the patient. It shows that the treating doctor made all possible efforts and utilized available resources in order to perform Laparoscopic Tubectomy of the patient.

16.              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.

 

17.              Further 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.”

18.              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.”

 

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

19.              As a result 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.            

20.              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:15.12.2023.

Gobind Ram.