Haryana

Yamunanagar

CC/900/2012

Kaki Devi W/o Jagdish - Complainant(s)

Versus

Dr.Sandeep Gupta ,Astha Hospital - Opp.Party(s)

S.D.Kishore

04 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                               Complaint No. 900 of  2012.

                                                               Date of institution: 24.08.2012

                                                               Date of decision: 04.08.2017.

 

Kaki Devi wife of Shri Jagdish, resident of Village Arriayanwala, Tehsil Jagadhri, Distt. Yamuna Nagar.                                                                                                                                                                                                                                                                                                                                                          …Complainant.

                             Versus

 

1. Dr. Sandeep Gupta, (Orthopedic Surgeon) Astha Hospital, Yamuna Nagar Road, Jain Nagar, Sapphire Hotel, Jagadhri, Tehsil Jagadhri, Distt. Yamuna Nagar.  
2. United India Insurance Company Ltd. 54, Jan Path Connaught Palace, New Delhi through its professional ideminity policy No. 040100/46/11/32/00000733 w.e.f 07-05-2011 to 06-05-2012.

 

…. Respondents.

                

                   BEFORE        SH. DHARAMPAL, PRESIDENT

                                          SH. S.C.SHARMA, MEMBER.

                                          SMT. VEENA RANI SHEOKAND, MEMBER.        

 

  

Present:       Sh. Shiv Dayal Kishore,  Advocate, counsel for complainant.   

                                           Sh. Sushil Garg, Advocate, counsel for OP No. 1.

                                           OP No. 2 already ex-parte vide order dated 14-02-2013. 

 

ORDER      (DHARAMPAL PRESIDENT)

 

1.                Complainant Kaki Devi has filed this complaint under section 12 of the Consumer Protection Act 1986 as amended up to date. 

2.                Brief facts of the complaint, as alleged by the complainant, are that on 22-07-2011, the complainant met with an accident at Bus Stop, Arriayanwala, Distt. Yamuna Nagar and she was taken to Civil Hospital, Yamuna ngar, where she remained up to 26.07.201  from where she was shifted to the hospital of OP No. 1. It is further submitted that OP No. 1 after examining the complainant told that she has to undergo an operation and directed the complainant to deposit a sum of Rs. 39,000/- before operation. The complainant and her family members somehow arranged Rs. 39,000/- and deposited the same with the OP No.1 before the operation as per his advise and directions and the OP No.1 conducted the operation of the complainant and discharged her after seven days of the operation without any observation and examination and due to the negligence of the OP No.1, infection arose in the leg of the complainant and ultimately she had to get admitted with Dr. Piyush Jain and the leg of the complainant has to be amputated and the complainant has to spend  a huge amount of Rs. 2 Lac on her treatments due to sole negligence of the OP No. 1, the complainant has become permanently disabled. The OP No. 1 has charged thousands of rupees form the complainant while under treatment. The husband of the complainant has also got served a registered AD legal notice dated 27-03-2012 requiring the OP to pay a sum of RS. 2,00,000/- which the complainant and her family members had to spend on the treatment of complainant due to sole negligence of the OP No. 1 but OP No. 1 did not reply the same. As such, it is prayed that the OPs may kindly be directed to pay a sum of Rs. 2,00,000/- on account of expenses of treatment and amputation of leg of the complainant and further to pay a sum of Rs. 1,00,000/- as compensation on account of pains & sufferings and Rs. 10,000/- as cost of legal proceedings to the complainant.

 3.               Upon notice, OP No. 1 appeared and filed his written statement and has taken some preliminary objections such as complaint is not maintainable, complainant has concealed and suppressed the material and relevant facts of this case. It is further submitted that the OP No. 1 is a well qualified and reputed surgeon having qualification M.S. (Orthopedic Surgeon) Further, the respondent has been running his hospital for the last number of years successfully and has performed a number of such operations with excellent results. The OP No. 1 has further submitted that the complainant has approached this Hon’ble Forum without support of any expert view of subject specialist and further the complainant has leveled these allegation without support of any scientific literature in this regard, which indicates/denotes/supports the allegations made by the complainant with clear stipulation of nature type, quality and quantity of negligence or deficiency in services. The patient met with a road accident on 22-07-2011 and was admitted in Civil Hospital, Yamuna Nagar, from where she was shifted to the OP Hospital on 26-07-2011. The OP No. 1 performed interlocking nail upon the patient and the patient was discharged on 03-08-2011 in a satisfactory condition. The patient visited the OP N. 1 only once for follow up and did not report back after that. Rest of the averments made in the complainant by the complainant are wrong and denied.

                   OP No. 2 did not come before the court despite of notice issued against him through registered post, hence, he was proceeded against ex-parte on 14-02-2013.    

4.                To prove his case, counsel for the complainant tendered into evidence the affidavit of the complainant as Annexure CX and documents such as Discharge Ticket as Annexure C-1, photocopy of USG abdomen as Annexure C-2, Test report as Annexure C-3, blood bank receipt as Annexure C-4 to C7, consultation fee slip as Annexure C8, OPD card as Annexure C-9, OPD card of Mytle Hospital as Annexure C-10 to C12, OPD card of Jain Hospital as Annexure C-13, OPD card of Mytle Hospital as Annexure C-14 to C-15, OPD card of Bhandari Hospital as Annexure C-16, photocopy of legal notice as Annexure C-17 and photocopy of postal receipt as Annexure C-18 and closed evidence on behalf of complainant.

5.                On the other hand, counsel for the OP No. 1 tendered into evidence affidavit of Sh. Dr. Sandeep Gupta as Annexure RW1/A and documents such as photocopy of Bed Head Ticket as Annexure R1, photocopy of History and examination as Annexure R-2, photocopy of treatment record as Annexure R-3 to R-5, photocopy of degree and certification of registration as Annexure R-6 and R-7 and closed the evidence on behalf of OP No. 1.   

6.                We have heard learned counsel for the parties and have also perused the record available on the file.

7.                Counsel for the complainant has argued that the complainant met with an accident and she was taken to Civil Hospital, Yamuna Nagar, where she remained up to 26.07.2011 thereafter, she was shifted to the hospital of OP No. 1 and OP No. 1 after examining the complainant, conducted the operation of the complainant and discharged her after seven days of the operation without any observation and examination and due to the negligence of the respondent, infection arose in the leg of the complainant and ultimately she had to re-operate herself with Dr. Piyush Jain and the leg of the complainant has to be amputated. As such, the complainant has become permanently disabled due to the sole negligence of the OP No. 1.

8.                On the other hand counsel for the OP No.1 has argued that the patient met with a road accident on 22-07-2011 and was admitted in Civil Hospital, Yamuna Nagar, from where she was shifted to the OP Hospital on 26-07-2011. The OP No. 1 performed interlocking nail upon the patient and the patient was discharged on 03-08-2011 in a satisfactory condition. The patient visited the OP No. 1 only once for follow up after operation.

9.                From the perusal of the record it is clear that after discharge from the hospital of OP No.1, the complainant  got his treatment from Goel Hospital (Annexure C-9), Mytle Hospital from 16.08.2011 to 31.01.2012 and refer to the PGI Chandigarh (Annexure C-10 to C-12, C-14 and C-15), Jain Hospital (Annexure C-13), Bhandari Hospital (Annexure C-16) and lastly got his treatment from Dr. Piyush Jain and the leg of the complainant amputated. It cannot be ascertain which of the hospital was negligent.

10.               The law of the land, on point of fixture of liability for medical negligence, was announced by the Hon’ble Apex Court in 2009 (4) RCR (Criminal) 1 (Malay Kumar Ganguly vs. Dr.Sukumar Mukherjee and others) and 2009 (3) BCR 202 (Martin F.D Souza vs. Mohd. Ishfaq). In Malay Kumar Ganguly s case (supra), the Hon ble Apex Court categorically held that:

i.       Mere deviation from normal professional   practice is not necessarily evidence of negligence.

ii.       Mere accident is not evidence of negligence.

iii.     An error of judgment on the part of a medical      professional is not negligence per-se, an

iv.      Simply because a patient has not favourably      responded to a treatment given by a physician         or surgery has failed, the Doctor cannot be held        liable per-se by applying the doctoring of res      ipsa loquitor.

11.                 Further, the Hon ble Apex Court also held that no guarantee is given by any doctor or surgeon that the patient would be cured. All that is required is that the Doctor must undertake a fair, reasonable and competent degree of skill which may not be the highest skill. If a Doctor adopts one mode of treatment out of many available but treats the patient with due care and caution, it would not constitute any negligence on his part (even if the complete cure does not come about).

12.                 Further, in Martin D Souza’s case, the Hon ble Apex Court enumerated the various eventualities wherein a Doctor can be held guilty of medical negligence:

(1)     The professional may be held liable for negligence on the ground that he was not possessed of the requisite skill which he professes to have Thus a doctor who has a qualification in Ayurvedic or Homeopathy medicine will be liable if he prescribes Allopathic treatment which caused some harm.

2)      A private complaint should not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.

3)      The investigating officer should, before proceeding against the doctor accused of rash or negligence act or omission, obtain an independent and competent opinion preferably from a doctor in Government service qualified in that branch of medical practice who can normally be expected to given an important option applying the Bolam test.

4)      A doctor accused of negligence should not be arrested in a routine manner simply because a charge has been leveled against him unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested.

5)      Medical practitioner is not liable to be held negligent 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 He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field For instance he would be liable if he leaves a surgical gauze inside the patient after an operation.

6)      To fasten liability in criminal proceedings e.g. under Section 304A Indian Penal Code the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings.

13.            Having noticed the eventualities of determinative content in taking a view in an identical matter, we proceed to examine whether the complainant has been able to prove any negligence/deficiency of service on the part of the OPs.

14.            The onus was clearly upon the complainant to place on file the material to prove that there was an act of cognizable deficiency/negligence on the part of OP No. 1 in the matter of undertaking of her treatment. Except bald averments in the complaint, the complainant has not been able to place on record any material to convince this Forum to record a finding in her favour.

15.            Though each and every litigation has to be adjudicated upon on the basis of its peculiar facts and circumstances and in relatability to the law of the land, it cannot be denied that if liability were to be fastened upon a treating surgeon in a trivial manner, the according of treatment by a Doctor to a patient would become very difficult. It can safely be culled out from the above discussion that if a Doctor is duly qualified and he treats a patient with adequate care and skill, no liability can be fastened upon him just because total cure does not come about. A complainant, in order to succeed in proving a charge of negligence, must prove on record a finding recorded by people duly qualified in the field of medicine and having expertise in the field, indicating the treating medical professional. The complainant has not done that in the present case.

16.              That the Doctor who treated the complainant at OP No.1 Hospital is professionally qualified is not in dispute. The complainant has not been able to invite our attention to any cognizable negligence on the part of the treating Doctor at OP No.1 Hospital which could persuade us to hold that there was deficiency in service on the part of the treating Doctor. There is no expert opinion as well on the record to buttress the plea of the complainant about deficiency of service on the part of the treating Doctor. If any law in support of that view is required, reference may be made with advantage to Kusum Sharma vs. Batra Hospital and Medical Research Centre (2010 (2) JT 7 and Martin F. D’souza Vs. Mohd. Ishfaq 1 (2009) CPJ 32 (SC).

17.              In the light of foregoing discussion, we are not persuaded to find force in the plea made be the complainant in the complaint. Accordingly, the present complaint is, hereby, dismissed. The parties shall bear their own costs of the cause in the peculiar facts and circumstances of the case.

18.            A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced in open court. 04.08.2017

 

                                                     ( DHARAMPAL)

                                                     PRESIDENT

                                                     D.C.D.R.F.YAMUNA NAGAR

                                                     AT JAGADHRI

 

 

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

      MEMBER                                                    MEMBER

 

 

Note: Each and every page of this order has been duly signed by me.

 

 

(DHARAMPAL)

                                                             PRESIDENT

                                                     DCDRF, YAMUNANAGAR