Haryana

Yamunanagar

CC/1262/2012

Somwati W/o Anant Ram - Complainant(s)

Versus

Dr.Parveen Jain - Opp.Party(s)

Sahib Singh Gurjar

17 Jul 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR.

 

                                                                                                Complaint No. 1262 of 2012

                                                                                                Date of institution: 07.12.2012     

                                                                                                Date of decision: 17.07.2017

 

Somwati wife of Shri Anant Ram- now deceased through her legal heirs.

1. Yashpal
2. Raj Kumar
3. Satish Kumar

 

sons of Late Somwati wife of Shri Anant Ram,

4. Rohit
5. Mohit

 

both sons of late Parveen Kumar son of Smt. Somwati wife of Anant Ram, residents of Aasha Wila, Bye Pass Chowk, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.

                          …Complainant.

                                    Versus

1. Dr. Deepan Jain c/o Jain Hospital, near District Courts, Jagadhri, Sector-17 HUDA, Jagadhri, District Yamuna Nagar.
2. The Oriental Insurance Company Limited, Opp. Madhu Hotel, Jagadhri Road, Yamuna Nagar.

 

                                                                                                                  …Respondents
 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

                        SMT. VEENA RANI SHEOKAND…..…… MEMBER.

 

Present:          Shri SS Gurjar, Advocate for complainant.

                        Shri Rameshwar Singh, Advocate for OP No.1

                        Shri Karnesh Sharma, Advocate for OP No.2

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

1.                     The present complaint was filed by complainant Smt. Somwati but lateron due to death of the complainant on 29.12.2011, her LRs have been impleaded as complainants vide order dated 10.03.2015.

2.                     Brief facts, as alleged in the complaint, are that complainant in the month of November, 2011 (in the month of May, 2011, wrongly mentioned as November) had received fracture in her leg and accordingly on 15.05.2011, the complainant along with he grandson Shri Pankaj visited the hospital of OP No.1 doctor and after proper checking it was told by the OP doctor that there is facture in the leg and needs to put rod therein. After believing upon the version of the OP No.1 doctor, the complainant agreed for suggested operation for fracture of the complainant and accordingly complainant was got operated  on 15.05.2011 and a rod was inserted  in the leg of the complainant and complainant was discharged from the hospital on 21.05.2011. The OP No.1 doctor prescribed some medicines and charged Rs.65,000/- from the complainant on account of treatment etc. After that, complainant remained continue with treatment of OP No.1 doctor, whereas since the very first day the complainant felt severed pain in the leg and she remained complaining to the OP doctor about the pain in the leg, but the OP No.1 doctor unusually advised the complainant that the pain was routine pain but no relief has ever been given to the complainant. Upon which, the complainant decided to get herself checked by the other doctor and accordingly along with her grandson Pankaj visited Dr. KB Gupta, Hospital Jagadhri and after proper checking it was revealed that operation conducted by the OP No.1 doctor  remained failed and screws fitted by the OP No.1 doctor in the leg of the complainant have clearly pain shown separated from the place in the x ray taken at the prescription of Dr. KB Gupta. After that, complainant along with her Grandson  Pankaj met the OP No.1 doctor  by showing him x ray either to re-operate or to pay the received amount as operation conducted by him remained failed, but firstly the OP No.1 doctor started lingering on the matter by making one or other pretext and ultimately refused to do the same. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed their written statement separately. OP No.1 filed its written statement taking some preliminary objections such as complaint is totally false, misconceived, groundless, vexatious  and scurrilous and has been filed just to harass, defame and to extract illegal money from the answering OP; the complainant has not approached this Forum with clean hands; complainant has not furnished the report of expert or orthopedician to prove his complaint; the complainant has not placed on file any expert view of subject specialists, even she has leveled false allegations without support of any scientific literature; no specific, scientific and justified allegations in regard to negligence in the treatment or deficiency in providing medical services has been made by the complainant; the OP No.1 doctor has more than 20 years experience as Orthopedic Surgeon and there is no medical negligence in the treatment of the complainant rather the complainant herself was negligent and has not properly followed the instructions and advise of the hospital given to her at the time of discharge. The complainant has not taken care of operated right hip and not reported in the OPD for follow up till today. The OP doctor has used his reasonable skill and due care to treat the patient; when the complainant approached the OP No.1 doctor and treatment in question was given in the good faith only after requisite investigation and explaining the diagnosis , prescribed line of treatment, prognosis, known complications and essential direction to be followed; complainant has not filed any expert report /opinion given by the Board of Doctors  regarding negligence of the OP No.1 doctor and on merit it has been admitted that Smt. Somvati Wife of Anant Ram, 85 years old was admitted with the alleged history on fall on 15.05.2011 and there was pain and loss of function of right hip. X ray examination showed trochanteric fracture right femur. Skin traction was immediately applied and investigation for medical fitness was carried out. Attendants were told regarding the prognosis and possible complications. She was operated on 16.05.2011 after medical fitness. Open reduction and internal fixation plus bone grafting of trochanteric fracture was carried out and fracture was fixed with 95 degree blade plate. Blood transfusion was given during her stay at hospital and the post operative progress was satisfactory and the complainant/patient was discharged on 21.05.2011. However, it has been specifically denied that amount of Rs.65000/- as hospital bills was charged from the complainant rather there was a hospital bill of Rs.39600/- including anesthesia, operation fee, bed charges, implants and medicines charges  and the attendant of the complainant has paid only 34,600/- towards total bill. There was balance of Rs.5,000/- and it was advised to the attendants to get the bill after making the entire payment. However, after that, the attendants or the complainant did not turn up to make the payment of balance amount or for OPD follow up after removal of stitches. It has been further denied that the operation conducted by the OP No.1 doctor failed and screws fitted in the leg were separated from the operated place as alleged in the complaint. The failure of the operation , if any, might be due to negligence of the patient herself and due to inadequate care by the attendants. The patient might have put weight on the operative limb against medical advise or had a fall on the injured limb. It has been further mentioned that the patient /complainant was 85 years old and she was living alone and her attendants /sons had a family feud as told by the attendants at the time of treatment. Further no record of Dr. KB Gupta has been shown or brought to the notice of the OP No.1 doctor and lastly prayed for dismissal of the complaint.

4.                     OP No.2 also appeared and filed its written statement taking some preliminary objections such as complainant is not maintainable; Forum has no territorial jurisdiction; complainant is bad for mis-joinder and non-joinder of necessary parties; complainant has no locus standi and on merit  it has  been admitted that insurance policy had been issued in the name of Dr. Deepan Jain under professional indemnity doctor’s policy vide insurance policy bearing No.261700/48/2011/3328 which was effective from 19.10.2010 to 18.10.2011 subject to its terms and conditions. Further, it has been mentioned that the complainant in para no.3 mentioned that the complainant sustained injury in the month of November, 2011 and admitted in the hospital for the said injury on 15.05.2011 i.e. prior to sustaining alleged injury which is not possible and further it has been mentioned that the present complaint is after though with malafide intention to defame the doctor and to fulfill her evils designs and lastly prayed for dismissal of the complaint.

5.                     In support of his case, learned counsel for the complainant tendered into evidence affidavit of Smt. Somvati  which was filed at the time of filing complaint as Annexure CW/A, photocopy of discharge slip of Jain Hospital dated 21.05.2011 as Annexure C-1, photocopy of OPD slip of Dr. KB Gupta, Hospital dated 21.11.2011 as Annexure C-2, X- Ray film as Annexure C-3, photocopy of death certificate of Smt. Somvati as Annexure C-4 and closed the evidence on behalf of complainant.

6.                     On the other hand, learned counsel for the OP No.1 tendered into evidence affidavit of Dr. Deepan Jain as Annexure R1/A and closed the evidence on behalf of OP No.1.

7.                     Learned counsel for the OP No.2 also tendered into evidence affidavit of Shri NK Goel, Sr. Divisional Manager, Oriental Insurance Company  as Annexure R2/1, photocopy of insurance policy as Annexure R2/1 and closed the evidence on behalf of OP No.2.  

8.                     We have heard the learned counsel for parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

9.                     The only grievance of the complainant is that the operation conducted by the OP No.1 on 15.05.2011 by inserting the rod in the leg of the complainant which was fractured, remained unsuccessful/failed due to medical negligence of the OP No.1 doctor and due to this the complainant has suffered severe pain and as well as financial loss which constitute the deficiency in service and unfair trade practice on the part of the OP No.1. Learned counsel for the complainant draw our attentions towards the photocopy of OPD slip issued by Dr. KB Gupta, hospital dated 21.11.2011 (Annexure C-2) x ray film (Annexure C-3) and argued that from these documents it is clear that the operation conducted by the OP No.1 doctor remained failed and screw put in the leg were lying separated from the operated place due to the medical negligence and carelessness of the OP No.1 doctor and prayed for acceptance of the complaint.

10.                   On the other hand, learned counsel for the OP No.1 doctor argued at length that there was no medical negligence or carelessness on the part of the OP No.1 doctor. Learned counsel for the OP No.1 doctor argued that the operation was conducted on 16.05.2011 and patient/complainant was discharged in satisfactory condition on  21.05.2011 and after that no complaint regarding any pain or dislocation of implant was ever made to the OP No.1 doctor. Learned counsel for the OP No.1 doctor further argued that the OPD slip was issued by Dr. KB Gupta, hospital (Annexure C-2) on 21.11.2011 i.e. after a period of near about 6 months. Meaning thereby that the operation conducted by the OP No.1 doctor was initially successfully but lateron it may have failed due to negligence or carelessness of the complainant herself as either the complainant had put the weight on the operated limb or had a fall on the injured limb. The failure of operation, if any, might be attributed to the inadequate and improper post operative care by the attendants because the patient was 85 years old and she was living alone. Learned counsel for the OP No.1 doctor further argued that no treatment record of the Dr. KB Gupta, hospital has been placed on file nor any expert report or opinion of Board of Doctors has been placed on file to prove any medical negligence on the part of the OP No.1 doctor. Learned counsel for the OP No.1 referred the case law titled as “Ajay Gupta Vs. Dr. Pardeep Aggarwal and other, 2007 (4) CPJ, P-64 (NC)” wherein it has been held that “treatment given contrary to established medical norms not prove – expert evidence or medical literature in the support of allegation not produced on record- complaint dismissed- Appeal against order dismissed”.

13                    Further In citation as titled as “Kusum Sharma vs. Batra Hospital and medical Research Centre and other, 2010(1) CPJ, P-29 (SC), wherein it has been held that doctor not guilty of medical negligence long as they performed their duties and exercise ordinary degree of professional skill and competence- medical negligence not proved in view of the settled principle of medical negligence. Relief entitled. Another case titled as V.Bhawani Vs. Dr. S. Shiva Subramanium 2013(1) CPJ, P-584 (NC) wherein it has been held that respondent, a well qualified doctor used his best professional judgment and required medical skill to diagnosed illness and thereafter contacted required surgery and also took due post operative care, including referring her to higher medical institution when it was stated necessary- negligence not proved. Another case law has also been referred titled as “N. Krishana Reddy Vs. Christan Medical skills 2007(2) CPR 260, (NC), wherein it has been held that medical negligence must be established and not presumed. In the absence of expert evidence on behalf of complainant, no negligence or deficiency in service could be found against, the hospital and doctor. And lastly prayed for dismissal of the complaint.

11.                   After hearing both the parties and after going through the case law referred above, we are of the considered view that the complainant has totally failed to prove any medical negligence on the part of OP No.1 treating doctor. From the perusal of OPD slip issued by Dr. KB Gupta, hospital (Annexure C-2) it is duly evident that report regarding failure of the operation and implant has been made on 21.11.2011 whereas the operation was conducted on 16.05.2011 i.e. 06 months prior to the report of failure. The complainant has not placed on file any OPD slip of any hospital or any doctor prior to the OPD Slip (Annexure C-2) issued by Dr. KB Gupta, hospital so the version of the complainant that she was feeling severe pain in her leg and she remained complaining to the OP No.1 doctor about the pain in her leg since it is operation i.e. 16.05.2011 is not tenable. Furthermore the complainant has not placed on file any expert report /opinion issued by Board of Doctor and in the absence of any expert opinion it cannot be held that the OP No.1 doctor was negligent or carelessness in treating the complainant. Further, it can also be not overlooked the patient /complainant was more than 85 years old at the time of operation. Although the screw implanted in the leg of the complainant clearly shows the pin separated from the operated placed in the x-ray film (Annexure C-3) but it cannot be presumed that these were due to the medical negligence or carelessness on the part of the OP No.1 treating doctor as it may be due to weight put on the operated limb against the advise of the treating doctor or due to fall on the injured limb. Further, the complainant has not placed on file further treatment taken from any hospital or doctor except the OPD Slip of Dr. KB Gupta, hospital (Annexure C-2) so in the absence of any cogent evidence, this forum is unable to hold that there was any medical negligence on the part of the OP No.1 treating doctor. Even, it is also not the case of the complainant that OP No.1 doctor was not so qualified or was not having any experience.

12.                   Resultantly, from the facts and law narrated above, it is establish that complainant has failed to prove medical negligence on the p[art of OP No.1 doctor qua his treatment/operation by tendering any documentary evidence or expert opinion in support of his case, whereas the specific burden to prove or show “as to what should have been done by the OP doctor which was not done or what was done, which should not have been done” was upon the complainant. So in the circumstances noted above and after going through the case law titled  as “Ajay Gupta Vs. Dr. Pardeep Aggarwal and other, 2007 (4) CPJ, P-64 (NC)”, “Kusum Sharma vs. Batra Hospital and medical Research Centre and other, 2010(1) CPJ, P-29 (SC), V.Bhawani Vs. Dr. S. Shiva Subramanium 2013(1) CPJ, P-584 (NC), “N. Krishana Reddy Vs. Christan Medical skills 2007(2) CPR 260, (NC), we are of the considered view that there is no merit in the present complaint and the same is hereby dismissed with no order as to cost. Copy of this order be supplied to the parties free of cost as per rules. File be consigned to the record room after due compliance.

 

Pronounced in open court.                                         

Dated: 17.07.2017.

 

                                                                       

                                                                                    (ASHOK KUMAR GARG),

                                                                                    PRESIDENT, DCDRF

                                                                                    YAMUNA NAGAR AT JAGADHRI

 

 

                        (VEENA RANI SHEOKAND)           (S.C. SHARMA)          

                         MEMBER                                           MEMBER