Haryana

Yamunanagar

CC/444/2011

Charan Kamal Chopra S/o Surjeet Lal Chopra - Complainant(s)

Versus

Dr.R.K.Gupta - Opp.Party(s)

Y.P.Sharma

06 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                             Complaint No.444  of 2011.

                                                                                             Date of institution:6.05.2011

                                                                                             Date of decision:  06.12.2016.

Charan Kamal Chopra aged about 60 years son of Sh. Surjeet Lal Chopra, resident of H. No. 1164, Durga Colony, Chhoti Line, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.     

                                                                                                                                  …Complainant.

                                    Versus

 

  1. Dr. R.K.Gupta, R.K.Gupta Hospital, Residence cum Hospital, Opp. Madhu Hotel, Gobindpuri Road, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar. 
  2. R.K. Gupta Hospital, Opp. Madhu Hotel, Gobindpuri Road, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar, through Dr. R.K. Gupta.
  3. United India Insurance Co. Ltd. through its Assistant Manager, 54, Janpath Connaught Place, New Delhi.

 

                                                                                                                                  …Respondents.     

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT,

                         SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Yash Pal Sharma, Advocate, counsel for complainant.   

               Sh. G.C.Verma, Advocate, counsel for respondents No. 1& 2.

               Sh. Anuj Jain, Advocate, counsel for respondent No.3.

 

ORDER

 

                        Complainant Sh. Charan Kamal has filed the present complaint under section 12 of Consumer Protection Act, 1986 praying therein that respondents (hereinafter referred as OPs) be directed to pay Rs. 15,00,000/- due to gross medical negligence and deficiency on the part of OPs and further to pay compensation as well as litigation expenses.     

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the mother of complainant was not feeling well and she was  taken to Sachin Hospital, Khalsa College  Road, Near Fountain Chowk, Yamuna Nagar on 10.11.2010 and after two hours mother of the complainant was taken away to home. Thereafter again, some weakness was felt by the mother of complainant and she was again taken to Sachin Hospital on 20.11.2010 and after a number of laboratory tests, ultimately she was “OK” but on 28.11.2010, mother of the complainant was taken to Hospital of Dr. R.K. Gupta  due to weakness and blood pressure where she was admitted and was told by Dr. R. K.Gupta that after conducting all the laboratory tests, after 2 days, after confirmation of the disease, she will be discharged from the hospital. Thereafter, on the same day 28.11.2010 ultrasound and echocardiography was done. However, the reports were given normal and as per the report, Global leuf was shown as 70%, which was normal and E.C.G. of patient was also normal. Thereafter, on 29.11.2010, the patient was kept in the hospital and blood test was conducted on 30.11.2010, Sodium, Potassium and Electrolytes tests were also conducted and these tests were conducted by Ramesh computerized laboratory were shown as normal, whereas these tests are not normal in the patients of kidney disease (if any) and on 30.11.2010 Dr. R.K. Gupta sent the patient for dialysis to Kapil Hospital whereas there was no complaint of any kind regarding kidney disease but everything was done as advised by Dr. R.K.Gupta and after dialysis, conducted at about 5.45 P.M. the patient came back to Hospital of Dr. R.K.Gupta  but at that time the patient was not discharged. If the patient was having kidney disease, then why injection Lasix i.e. medicine of kidney was not given.  On 30.11.2010 at about 7.00 P.M., the treatment was continued and at about 9.30 PM Lasix injection/treatment was given but ultimately on 01.12.2011 at about 2.00 PM the mother of the complainant died. Despite the fact that mother of complainant was smart card holder but even then, an amount of Rs. 2500/- was charged and electrolytes sodium potassium tests were conducted from outside i.e. from Ramesh computerized clinic laboratory and an amount of Rs. 500/- was paid. If the said tests would have been conducted from Civil Hospital, that might have been conduced free of costs. An amount  of Rs. 2600/- was charged for dialysis procedure from the complainant in Kapil Hospital, but if the procedure was got conducted from Satnosh Hospital or Kapoor Hospital, then being smart card holder, that tests would have been free of costs. The doctor on misguiding the complainant and the patient was not well at that time and they were not in a position to protest against the doctor due to stress and emotional grounds and Dr. R.K. Gupta took undue benefit of this thing. Thus, there were gross negligence on behalf of Dr. R.K.Gupta for treating his mother on the ground that the Echocardiography report was normal, ECG, Sugar, Blood Urea, Creatinine, electrolyte sodium potassium were normal. Ultrasound conducted on 28.11.2010 shows kidney size as 15-15 cm, whereas in case of chronic renal failure the same ought to have been less than 9 cm. As per the kidney size and time, the deceased was patient of acute renal failure and not a patient of chronic renal failure. Acute renal failure is always reversible and cannot be cause of death and as per encyclopedia the Acute Renal Failure occurred to the disease after her admission in the hospital and may be causing damage to the kidney, due to negligence on the part of doctor and due to giving wrong medicine and due to wrong treatment, due to giving medicines needlessly and due to conducting dialysis, because due to old age, the patient just could not bear the treatment of dialysis nor there was any necessity to give her dialysis and ultimately she expired. Hence, this complaint.       

3.                     Upon notice, OP  No.1 & 2 appeared and filed their written statement jointly by taking some preliminary objections such as complaint discloses no cause of action related to acts of omission and commission of OPs No.1 and 2 and are totally vexatious and misconceived and complainant is not entitled to any relief as claimed or otherwise at all; present complaint is false and frivolous; the complainant has filed this case against OPs No.1 & 2 just to harass, defame and extort illegal sum by abusing the process and provisions of C. P. Act, 1986, so, the same is liable to be dismissed out rightly; this complaint is bad for non-arraignment and mis-arraignment of parties. The OP No.1 Dr. Ramesh Kumar Gupta (Dr. R.K. Gupta) is insured with United India Insurance Company Ltd. 54, Janpath, Connaught Place, New Delhi vide its professional indemnity policy bearing No. 040100/46/10/35/00000691 effective from 07.05.2010 to 06.05.2011 to OP No.1 (Annexure R-1). It has been further mentioned that everything was explained to the complainant. The treating doctor i.e. R.K. Gupta is well qualified doctor having qualification of MD Medicine and have a vast experience in his line. The Op No.1 Doctor was/is competent to treat all such patient and to perform all type of such tests. The patient Smt. Kamla Rani now deceased when admitted in the hospital of the OP No.2 was 78 years of the age and she had been brought to the hospital by 2-3 attendants of the patient holding her and giving heavy supports. The patient was admitted with the history of diabetes mellitus and hypertension for the last about 15 years and she had a complaint of pain in the chest and pain apigastrium 20-30 days breathlessness, nausea, vomiting, anorexia oliguria, loss of appetite for the last 12-13 days. No prescription or treatment records of any doctor treating her earlier were shown to OP doctor. Her BP was 220/100 mtg. Heart rate was 106mt, abdomen was distended and tender. The patient was hospitalized as she was in serious condition. Considering the seriousness of the patient, the various tests were got done on 28.11.2010 as the patient was passing very less urine despite injection lasix. having been given repeatedly in higher doses. The attendants of the patient were advised to shift the patient to higher institute like PGI Chandigarh but they did not want to harass the patient at this old age. There was no improvement in the patient condition and on 29.11.2010 again laboratory tests were repeated. Still there was no improvement in the condition of the patient, kidney function deteriorated further the lab test done on 30.11.2010 in our hospital shown blood Urea as 152 mg and S. creatinine as 8.2 mg.  Accordingly, it was decided that she should undergo Haemo dialysis. The attendants of the patient Kamla Rani brought Ambulance of Kapil Hospital and took the patient for dialysis. After dialysis she was brought back to the hospital of OP No.1  in very serious conditions as the BP was very low. Again on 01.12.2010, laboratory test was carried out. Even after Haemo dialysis there was no improvement in the condition of the patient and the patient ultimately expired on next day i.e. on 01.12.2010 at about 12.20 P.M.  It has been further mentioned by the Op doctor that as the patient was smart card holder, so not a single penny was taken by the Op doctor from the attendants of the patient. Lastly it has been prayed that the complaint of the complainant  is liable to be dismisses as there was no careless or negligence on the part of op no.1 &  2.

4.                     OP No. 3 was impleaded as party and notice was issued to the OP No.3 Insurance Company.  Upon notice, OP No.3 appeared and filed its written statement by admitting the fact that Dr. R.K.Gupta, was insured with “United India Insurance Company Ltd. 54 Janpath, Connaght Place, New Delhi-110001, during the period of insurance, the patient Smt. Kamala Rani was treated by OP No.2 on dated 28.11.2010 and prayed to accept the written statement of OP No.1 in totality and the same be considered as its written statement in the abovesaid matter.

5.                     In support of case, complainant tendered into evidence his affidavit as Annexure CW/A and documents such as Photo copy of prescription slip of Sachin Hospital as annexure C-1, Photo copy of diagnostic laboratory report dated 20.11.2010 as Annexure C-2 & 3, Photo copy of prescription slip of Dr. R.K. Gupta, Hospital as Annexure C-4 & C-5, Photo copy of laboratory report as Annexure C-6, Photo copy of prescription slip of doctor R.K.Gupta as Annexure C-7, Photo copy of laboratory report dated 30.11.2010 as Annexure C-8, Photo copy of receipt of Rs. 2600/- of Dr. Kapil Hospital as Annexure C-9, Photo copy of clinical laboratory report as Annexure C-10, Photo copy of discharge slip as Annexure C-11, Photocopy of prescription slip as Annexure C-12, Photo copy of treatment chart as Annexure C-13 to C-17, Photo copy of laboratory test report as Annexure C-18 to C-20, Photo copy of prescription slip of Sachin Hospital as Annexure C-21, Photo copy of laboratory test report of Sachin Hospital as Annexure C-22 & C-23, Photo copy of certificate issued by Sachin Hospital as Annexure C-24, Photo copy of laboratory test report as Annexure C-25, Photo copy of  literature of medical book as Annexure  C-26 and C-29 and closed his evidence.

6.                     On the other hand, counsel for OPs No.1 & 2 tendered into evidence affidavit of Dr. R.K.Gupta, as Annexure RW/A, Affidavit of Dr. D.P.Singh, MBBS, Senior Medical Officer, as Annexure RW/B, Affidavit of Doctor Kapil Dev Sharma as Annexure RW/C and tendered into evidence medical literature as Annexure R-1 to R-6, Photo copy of certificate issued by Navdeep Singh Khaira MD:DM alongwith report as Annexure R-7 and R-8, Photo copy of medical literature as Annexure R-9 to R-11, Photo copy of ECG as Annexure R-12, Photo copy of laboratory test report as Annexure R-13 to R-16 and closed the evidence on behalf of OPs No.1& 2.

7.                     Counsel for OP No.3 tendered into evidence affidavit of Suresh Chand Jangla, Assistant Manager as Annexure RW3/A  and document photo copy of insurance policy as Annexure R3/1 and closed the evidence on behalf of OP No.3.       

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

9.                     The only grievances of the complainant is that the mother of the complainant was feeing some weakness and due to that she was taken to the Sachin Hospital on 20.11.2010 and after a number of laboratory tests she was found O.K. but on 28.11.2010 the complainant took his mother to the R.K. Gupta Hospital due to again weakness and blood pressure where she was admitted. Dr. R.K. Gupta told to the complainant that, after conducting all the laboratory tests, after 2 days after confirmation of the disease, she will be discharged from the hospital. On 28.11.2010 Ultrasound and Echocardiography of mother of the complainant was done however the reports were normal. As per report, Global Leuf was shown as 70% which is normal and Echo of patient was also normal. Thereafter, the patient was kept in the hospital on 29.11.2010 and blood tests were conducted on 30.11.2010. Sodium Potassium and electrolyte tests were also conducted from Ramesh Computerized Laboratory and all the tests were found normal. Inspite of that all the tests were normal, Dr. R.K. Gupta sent the mother of the complainant for dialysis to the Kapil Hospital whereas there was no complaint of any kind regarding kidney disease but everything was done as advised by the Dr. R.K.Gupta and after dialysis conducted at about 5.45 P.M. the patient came back to the hospital of Dr. R.K.Gupta but at that time the patient was not discharged. If the patient was having kidney disease, then why injection Lasix i.e. medicine of kidney was not given. On 30.11.2010 at about 7.00P.M. the treatment was continued and at about 9.30 P.M. Laxis treatment was given but ultimately on 01.12.2011 at about 2..00P.M. the patient/mother of complainant Smt. Kamla Rani died. Learned counsel for the complainant draw our attention towards the Oskar computerized diagnostic laboratory report dated 20.11.2010 (Annexure C-2) and Urine Examination report (Annexure C-3) and argued that in these reports S. Creatinine was 0.9, meaning thereby that there was no kidney problem on 20.11.010. Learned counsel for the complainant further draw our attentions towards the report dated 30.11.2010 conducted in the hospital of Dr. R.K,Gupta (Annexure C-8) wherein S. Creatinine has been shown as 8.2 and B.Uria has been shown as 152 Mg.  Learned counsel for the complainant argued that when as per reports and ultrasound conducted on 28.11.2010 the kidney size was 15-15 Cm. and creatinine was normal on 20.11.2010 then how it can be presumed that the patient was having any kidney problem. The Urea, Creatinine increases in Acute Renal Failure from 2 weeks to 1 month, whereas it increases within 3 months in Chronic Renal Failure and maximum as per the kidney size and time, so, the case of patient (now deceased) was of Acute Renal Failure and not the case of Chronic Renal Failure and referred the Literature Annexure  C-28. The Acute Renal Failure is always reversible and cannot be cause of death, even as per encyclopedia, the Acute Renal Failure occurs due to the disease after her admission in the hospital and may be causing damaged t the kidney due to the negligence on the part of treating doctor and due to giving wrong medicine or treatment or by giving medicines needlessly and due to conducting dialysis, because due to old age, the patient just could not bear the treatment and dialysis nor there was any necessity to give her dialysis.

            However, the OP doctor in order to fetch money from the complainant misguided the complainant and prepared wrong urea and creatinine report just to admit her in the hospital and give treatment on the basis of wrong reports, due to which the kidney became weak and caused death of the patient. Learned counsel for the complainant further draw our attention towards the cross examination of Dr. Navdeep Khaira RW.1 and argued that this doctor has admitted in his cross examination that opinion mentioned in report (Annexure R-8) has been given on the asking of treating Doctor R.K.Gupta. Learned counsel for the complainant referred the case law titled as V. Kishan Rao Versus Nikhil Super Speciality Hospital & Another, 2010 (2) RCR (Criminal) page 878 Supreme Court,  Niraj Awasthi(Dr.) Versus Jagdish Bharti (deceased through LRs) 2010 (3) CLT page 705, Jyoti Devi Vs. Suket Hospital & Others, 2015(3) CLT page 41, Venkati Versus Parkash M Bhandari (Dr), 2015(4) CLT Page 371 and Asha Abhi Versus Kanpur Medical Centre Pvt. Ltd. & Others 2015(4) CLT Page 375 NC and lastly prayed for acceptance of the complaint.

10.                   On the other hand, counsel for the Ops argued at length that neither there was any deficiency in service or unfair trade practice on the part of the Ops doctor. No truth is attached to the allegations leveled by the complainant in his complaint. It has been further argued that everything was explained to the complainant. The treating doctor i.e. R.K. Gupta is well qualified doctor having qualification of MD Medicine and have a vast experience in his line. The Op No.1 Doctor was/is competent to treat all such patient and to perform all type of such tests. The patient Smt. Kamla Rani now deceased when admitted in the hospital of the OP No.2 was 78 years of the age and she had been brought to the hospital by 2-3 attendants of the patient holding her and giving heavy supports. The patient was admitted with the known history of diabetes mellitus and hypertension for the last about 15 years and she had a complaint of pain in the chest and pain apigastrium 20-30 days breathlessness, nausea, vomiting, anorexia oliguria, loss of appetite for the last 12-13 days. No prescription or treatment records of any doctor treating her earlier were shown to OP doctor. Her BP was 220/100Mtg. Heart rate was 106 mt, abdomen was distended and tender. The patient was hospitalized as she was in serious condition. Considering the seriousness of the patient, Doctor got done the various tests on 28.11.2010, the patient was passing very less urine despite injection lasix having been given repeatedly in higher doses. The attendants of the patient were advised to shift the patient to higher institute like PGI Chandigarh but they did not want to harass the patient at this old age. There was no improvement in the patient condition and on 29.11.2010 again laboratory tests were repeated. Still there was no improvement in the patient condition, kidney function deteriorated further, lab test done on 30.11.2012 in our hospital shown blood urea as 152 mg and S.creatinine as 8.2 mg.  Accordingly, it was decided that she should undergo Haemo dialysis. The attendants of the patient Kamla Rani brought Ambulance of Kapil Hospital and took the patient for dialysis. After dialysis, she was brought back to the hospital of OP No.1 in very serious conditions as the BP was very low. Again on 01.12.2010, laboratory test was carried out. Even after Haemo dialysis, there was no improvement in the condition of the patient and the patient ultimately expired on 01.12.2010 at about 12.20 P.M.  It has been further argued by the learned counsel for the Ops that as the patient was smart card holder so not a single penny was taken by the Ops doctor from the attendants of the patient. Learned counsel for the Ops No.1 & 2 draw our attention towards the literature Diabetes Care in India Annexure R-1 to R-6 and R-9 to R-11 and argued that as per these literature also there was no carelessness or negligence on the part of the Ops Doctors. Learned counsel for the Ops further draw our attentions towards the report Annexure R-8 issued by Dr. Navdeep Khair, M.D. Professor of Nephrology CMC, Ludhiana and argued that the said doctor has also given the same opinion which he recommended to the patient Smt. Kamla Rani for dialysis. Learned counsel for the Ops further draw our attention towards the some laboratory tests carried out on 28.11.2010, 29.11.2010 and 1.12.2010 Annex. R-13 to R-16.  Lastly prayed that the OP doctor made efforts in all respect to save the patient and there was no carelessness or negligence on the part of op doctor, And referred the case law titled as Vinitha Ashok Versus Lakshmi Hospital and others, 2002(2) CLT page 52 Supreme Court wherein it has been held that Medical Negligence- A doctor will not be guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art and if he has acted in accordance with such practice merely because there is a body of opinion that takes a contrary view will not make him liable for negligence.

11.                       Learned counsel for OP doctor further relied upon the judgment delivered by the National Commission in consumer case titled as Ajay Gupta Versus Pradeep Aggarwal (Dr.) & others, IV (2007) CPJ page 64 (NC) wherein it has been held that “Treatment given contrary to established medical norms not proved-Expert evidence or medical literature in support of allegations not produced on record-Complaint dismissed-Appeal against order dismissed. Learned counsel for the OP further relied upon the judgment delivered by the Hon’ble Supreme Court in case titled as Kusum Sharma & Others Versus Batra Hospital & Medical Research Centre & Others, 1(2010) CPJ page 29 (SC) wherein it has been held that doctor not guilty of medical negligence as long as they perform their duties and exercise ordinary degree of professional skill and competence-Medical negligence not proved in view of settled principles of medical negligence. No relief entitled. Learned counsel for the OP doctor further relied upon the case law titled as Ramaiah Institute of Cardiology & Others Versus M. Pundalik Shenoy Since Dead by Lrs. & Others, 2012 (2) CPC Page 603 and case titled as Smt. Sujata Nath Versus Popular Nursing Home and others, 2011 CJ page 1039 (N.C.).  Learned counsel for OP doctor further relied upon another case law titled as H.R. Megh Versus Dr. Jasjit Chhachhi Nursing Home and others, 2011(2) CPC page 604 (NC.) wherein it has been held that “Medical negligence – Wrong treatment of cancer- Wife of complainant No.1 suffered from excessive virginal bleeding during menstruation period- Surgery was conducted by OP No.2 removed the uterus and right tube- Cancer was detected at later stage- But patient could not be saved- It was alleged that Op No.2 had not done Biopsy to determine more accurately condition of uterus and cervix before undertaking abdominal hysterectomy- As per conclusion of medical Board there was probability that deceased had developed cancer sometimes before conducting the surgery- Failure to detect negligence during medical examination does not constitute medical negligence on the part of OP- relief declined”.  

12.                    And also referred the case law titled as Sethuraman Subramaniam Iyer Versus Triveni Nursing Home and another, 1998(1) CLT page 242 NC, J.S. Kahlon Versus Dr. B.S. Bhatia 2006(1) CPC page 170 and Umed Singh Berwal Versus Sripal 2006(1) CLT page 257.

13.                   After hearing both the parties, we are of the considered view that there is a deficiency in service and unfair trade practice on the part of the Op Doctor as from the perusal of test report dated 20.11.2010 (Annexure C-2) conducted by Scar Computerized Diagnostic Laboratory, it is clearly evident that the S. Creatinine was 0.9 only (in normal limit) as on 20.11.2010 and all other tests were also in normal range. Even, the blood sugar was also 100 i.e. in normal limit. So, the version of the Op doctor that the patient was having diabetes mellitus and hypertension for the last 15 years is not tenable. Further, the plea that no prescriptions or treatment records of any doctor, treating her earlier were shown to the Op Doctor is also not tenable as from the perusal of prescription slips Annexure C-4 and C-5 when the patient Kamla Rani visited the Op doctor first time on 28.11.2010, Op Doctor had not prescribed any other tests except ECG and x-ray chest, meaning thereby that either Op Doctor had seen the earlier reports brought by the patient with her or was of the opinion that there was no need to carry out the same. Even from perusal of the prescription slips dated 29.11.2010 (Annexure C-7), it is evident that on 29.11.2010, the Op doctor had examined only these two reports i.e. Echo report as well as UGC report, as no such other tests have been mentioned in this OPD slips,even on that day also he has not prescribed any other test.  It seems that the Op doctor only prescribed for other tests on 30.11.2010 and after getting the report dated 30.11.2010 (Annexure C-8) in which B.Urea was shown as 152 mg and S. Creatinine was shown as 8.2 Mg, referred the patient Smt. Kamla Rani for Haemo Dialysis without getting report from the other independent laboratory of any other hospital/Lab, in respect that whether the patient Kamla Rani was having any problem in respect of her kidney or not? Even from the other angle also, the Op Doctor straightway referred the patient Kamla Rani ( now deceased) to get the Haemo Dialysis instead of referring the patient to get opinion of any nephrologists. Although, the Op Doctor has placed on file the lab reports of his own hospital dated 28.11.2010 (Annexure R-13), dated 29.11.2010 (Annexure R-15) in which S. Creatinine and Urea has been shown as 5.5 Mg and 6.6 respectively but it is not clear that when the OP doctor has not prescribed to get such tests conducted in the OPD slips Annexure C-4 and Annexure C-5 then how these lab reports came into the existence.  

14.                   As per the version of the OP Doctor, the patient Kamla Rani aged about 78 years, was very serious and 2-3 attendants got her admitted in his hospital, from this angle also, when the patient was having such type of condition then she should not have been advised to get the Haemo Dialysis rather treated by the medicines. The OP doctor has himself admitted that the patient was also having problem of Ischemic heart disease (heart attack) as per echocardiography report, then also the patient should not have been referred to get Haemo Dialysis.

15.                   The arguments advanced by the learned counsel for the Op doctor that everything was discussed with the complainant have also no weightage as the OP doctor has not placed on file any consent obtained from the complainant or her attendants, before referring her to get the dialysis. Whereas as per law referred in case of Sumitra Kohli versus Dr. Prabha Manchanda and another, 2008(2) Supreme Court Cases wherein principles relating to consent laid down has been discussed as under:

We may now summarize Principles relating to consent as follows:

  1. A doctor has to seek and secure the consent of the patient before commencing a ‘treatment’ (the term ‘treatment’ includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.

(ii)       “The adequate information to be furnished by the doctor (or a member of his team) who treats the patient should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to be particular treatment or not. This means that the doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effects; (b) alternatives if any available (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.”

16.                   The case laws referred by both the counsels are not disputed but not relating to the facts of the present case because each and every case has its own fats and circumstances.

17.                   Having considered the matter in its entirety, we are of the considered opinion that there is a negligence on the part of the OPs doctor  although the OPs Doctor is having M.D Qualification but even then he has no specialization in the field of Nephrology and inspite of that, without getting the opinion or getting lab reports from other independent lab, referred the patient Kamla Rani in old age for getting the Haemo Dialysis, due to which she died on the very next day after getting the Haemo Dialysis, we are of the considered view that this act of the treating doctor shows his carelessness, negligence which constitute the deficiency in service and unfair trade practice on the part of OPs Doctor.

18.                   Having held that there was carelessness and negligence on the part of the OPs Doctor in giving the treatment to deceased Kamla Rani, the ultimate question is as to what should be the reasonable compensation to which the complainant is entitled in the present case. What is meaning by compensation within the meaning of section 14 of the Consumer Protection Act 1986 has been considered and answered by the Hon’ble Supreme Court in case of Gaziabad Development Authority Versus Balbir Singh 2004 Volume 5 Supreme Court Case page 65 wherein it has been defined in the legal sense that it may constitute actual loss or expected loss and may extent to physical, mental or even emotional suffering and insult injury and loss, thus the Forum in the act is entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him. In the present case, the complainant has claimed a sum of Rs. 15,00,000/- on account of mental agony, harassment, torture and financial loss as well as Rs. 11000/- as litigation expenses but no cogent evidence been placed on file. It is admitted  case of the complainant that the mother of the complainant was smart card holder. So, we have no option except to grant the compensation by way of guesswork keeping in view the circumstances of the case as well as age of the deceased Smt. Kamla Rani. We are of the view that a lump sum compensation of Rs.100,000/- ( one lac only) would be adequate to meet the end of justice in this case.

19.                   Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the OPs to pay a lump sum of Rs. 1,00,000/-  jointly and severally to the complainant and further to pay Rs. 5000/- as litigation expenses. It is made clear that as the OPs No. 1 & 2 were insured with the Op No.3, so, the OP No.3 United India Insurance Company will pay the awarded amount, being insurer of the OPs No.1 & 2, within a period of 30 days failing which complainant shall be entitled to recover interest at the rate of 6% per annum for the defaulting period. It is also made clear that the awarded amount will be paid to the complainant as the complainant has filed complaint alone. However, other LRs are also entitled to get their share from the complainant as per law.  Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 06.12.2016.

 

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT

                                                                                    DCDRF, Yamuna Nagar.

 

 

 

                                                                              (S.C.SHARMA)

                                                                               MEMBER

 

 

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