Punjab

Moga

CC/13/100

Vipan Chander Mehta - Complainant(s)

Versus

Dr.Seemant Garg - Opp.Party(s)

Sh.Vishal Jain

20 Jul 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM, MOGA.

 

                                      Complaint No.100 of 2013

                                                                 Instituted On: 12.11.2013

Decided On: 20.07.2015

 

Vipan Chander Mehta S/o Sh.Om Parkash Mehta S/o Sh.Ram Rakha Mal Mehta, age 62 years, R/o Ward No.14, H.No.683, Mohalla Kishan Pura, 9-New Town, Moga.

Complainant

 

Versus

 

1. Dr.Seemant Garg C/o Sham Nursing Home and Heart Centre, Railway Road, Moga District Moga.

 

2. Sham Nursing Home R/o Railway Road, Moga where Dr.Seemant Garg M.B.B.S (M.D.) working as a doctor in Sham Nursing Home and Heart Centre, Railway Road, Moga, District Moga.

         

Opposite Parties

 

 

Complaint under section 12 of the

Consumer Protection Act, 1986.

 

 

Coram:      Sh.S.S.Panesar, President

                    Smt Vinod Bala, Member

                    Smt Bhupinder Kaur, Member

Present:      Sh Vishal Jain, Advocate counsel for complainant.

                    Sh.Jasvinder Singh, Advocate counsel for Opposite parties

ORDER

(S.S.Panesar, President)

                  Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act’) against Dr.Seemant Garg C/o Sham Nursing Home and Heart Centre, Railway Road, Moga District Moga & another (herein-after referred to as opposite parties)- directing them to pay Rs.18 lacs as compensation on account of mental loss and agony due to the negligence, deficiency in service of the opposite parties.

2.                Brief facts of the complaint are that complainant felt heaviness in the centre of his chest and he met Dr.Seemant Garg, M.B.B.S (M.D.) Sham Nursing Home and Heart Centre, Railway Road, Moga on 15.09.12 for consultation about the disease, who told that complainant is suffering from heart disease without prior getting any diagnosis report. After two months the said doctor advised the complainant to get the report of TMT from the diagnostic laboratory and started giving him medicines since 15.09.12 to 31.5.13. Due to the wrong treatment giving by the doctor, complainant might have been collapsed any time. No doubt opposite party no.1 was a qualified doctor, but in reality he proved to be dishonest, money making, greedy and delinquent in his profession. He did not advise the complainant to do proper test like Angiography. Thereafter one day the complainant felt serious pain in the chest and he went to DMC and Hospital Unit-Hero DMC Heart Institute, Ludhiana for Angiography and got his report about heart blockage and also read the prescriptions slips issued by Dr.Seemant Garg. The doctor there advised the complainant to get himself admitted in the hospital immediately and also advised him to get the Angiography test done, as the complainant was having heavy blockage in his arteries. All this happened due to the negligence of the opposite parties. On 04.06.13 the complainant was advised for heart surgery immediately and the complainant got his heart surgery done from Fortis Hospital, Sector 62, Phase-VIII, Mohali, Punjab on 15.06.13. Due to the negligent act of the opposite parties, the complainant is suffering from mental agony, physical harassment.  Hence the present complaint.

3.                On notice of the complaint, opposite parties appeared through their counsel Sh.Jasvinder Singh Advocate and filed written reply contesting the same. They took up certain preliminary objections therein interalia that the complaint is not maintainable; that the complainant has got no locus standi; that there is no deficiency in service on the part of the opposite parties; that the present complaint is false and frivolous; that a complicated question of law and facts are involved in the present complaint; that the complainant has not approached the Forum with clean hands; that opposite party no.1 has obtained a degree of M.B.B.S and M.D (Medicine) and has been serving the society in this noble profession with utmost devotion and dedication to the best of his ability and experience. On 15.09.12 the complainant came to the opposite party no.1 and had brought some test reports from outside. The opposite party no.1 examined the complainant and prescribed him required medicines. Thereafter the complainant came for check-up from the opposite party no.1 at intervals. After about two months the opposite party no.1 advised him to get the T.M.T (Tread Mill Test) from the Lab. The complainant got his tests done from Mitttal Lab and City Scan Centre, Moga and brought his reports dt. 09.11.12 to the opposite no.1 on 10.11.12. Blood pressure of the complainant was monitored which was 190/100. Based on the investigations, opposite party no.1 prescribed required medicines to the complainant mentioned in the outdoor slip dt. 10.11.12. Thereafter complainant made several visits to the opposite party no.1 on different dates for regular check-up. In medical management the complainant was given treatment for coronary heart disease which included two coronary vasdilators namely Glynet (Sorbitrate) and Trima Contin, blood thinner Caplor (Aspirin), Olma Sartan for hypertension and Ozo for hyperacidity (which may be caused by blood-thinner). Thus the complainant was given optimal treatment for the disease he was suffering from and he remained stable. Even the medicines prescribed by Hero D.M.C. (Hear Centre), Ludhiana on discharge matches the prescription of the opposite party no.1. Even the Anti Psychotropic Drugs are same. Even the enquiry committee formed by Guru Gobind Singh Medical College & Hospital, Faridkot, regarding the complaint of complainant on the orders of this Forum has analyzed as follows:

"The patient started treatment for his ailment from Sham Nursing Home, Moga from 15.09.12. After 2 months he was advised TMT which was done at Mittal Lab and CT Centre, Moga. The TMT was positive and the patient continued treatment of heart disease (CAD) from Sham Nursing Home, Moga, till 31.5.13. On 1.6.13 the patient consulted Hero DMC Heart Centre, Ludhiana, where he was advised Coronary Angiography which was done on 4.6.13 and it revealed double vessel disease. Finally the patient underwent PTCA with stenting at Fortis Hospital, Mohali on 15.6.13.

            The committee is of the opinion that the patient was being given optimal treatment and was stable on the same and therefore there is no negligence on part of the treating doctor of Sham Nursing Home, Moga"

                   Further the report dated 4.6.13 of the complainant from Hero DMC Heart Institute, Ludhiana shows that the complainant had a 'double vessel disease' in the final diagnosis as his left Anterior Descending Artery and Right Coronary Artery had 90% calcified lesion (blockade) and was recommended Myocardial revascularization. Interestingly the complainant got only one + stent to LAD (Left Interior Descending Artery), but his second Right Coronary Artery is still 90% blocked. This meant the complainant is still moving around with one of his major arteries of heart still having a 90% lesion proximally. On merits, all other allegations of the complaint have been denied and a prayer for dismissal of the complaint with cost has been made.

4.                In order to prove his case, the complainant tendered in evidence

his affidavit Ex.C-42 and copies of documents Ex.C-1 to Ex.C41 and Ex.C43 to Ex.C-61 and closed his evidence.

5.                To rebut the evidence of the complainant, the opposite party Nos.1 & 2 tendered affidavit of Dr.Seemant Garg, s/o Dr.Sham Sunder Garg C/o Sham Nursing Home Railway Road, Moga Ex.OP1, 2/1

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

7.                On the basis of evidence on record, Sh.Vishal Jain, Adv. Cl. for the complainant has vehemently contended that in the month of September, 2012 complainant felt some heaviness in the center of his chest and the complainant met Dr.Seemant Garg, M.B.B.S (M.D.) Sham Nursing Home and Heart Centre, Railway Road, Moga on 15.09.12 for diagnose of the disease. The said doctor advised the complainant that he is suffering from heart disease without prior getting any diagnosis report. Doctor advised him for earlier treatment of the disease. Complainant felt satisfied from the advice of the doctor, as doctor was the qualified one, soft-spoken and convincing in nature. After two months, the doctor advised the complainant to get the report of the TMT from the diagnostic laboratory. On the other hand, complainant requested the opposite party doctor that Angiography test of his heart was required, but doctor refused to do so, rather advised the complainant to get Angiography test lateron as his machine was going to be installed very shortly at his hospital. The doctor very well knew that the disease has already played mischief with the complainant. But opposite party doctor went on prescribing medicines only to the complainant w.e.f 15.09.12 to 31.5.13. Doctor was qualified, but dishonest, money making, greedy and as such he misguided the complainant by prescribing wrong treatment. The opposite parties did not advise the complainant to get proper test like Angiography. On 01.06.13 the complainant felt serious pain in his chest and he went to DMC and Hospital Unit-Hero DMC Heart Institute, Ludhiana for Angiography and got the report about heart blockage. The hospital authorities advised the complainant that he was having heavy blockage in his arteries and the same has happened due to the negligence of the opposite parties. The complainant was also advised for heart surgery immediately and complainant got his heart surgery from Fortis Hospital, Secto 62, Phase-III, Mohali, Punjab on 15.06.13. The complainant suffered both mental agony and physical shock. The complainant is legally entitled to get compensation of Rs.18 lacs on account of mental agony and physically injuries.

8.                A reference has been made to TMT Ex.C-26, wherein it is specifically mentioned that TMT mildly positive for inducible ischemia. The complainant had produced on record medical literature drawn from Google Search. Relevant questions therefrom have been referred to as under:-

Q. What does TMT mildly positive for inducible ischemia mean in report?

Ans. "TMT mildly positive for inducible ischemia means there is chance of blockage in the arteries of the heart. Inducible ischemia means an inadequate supply of oxygen (via blood flow) to the heart muscle occurring with physical or emotional stress. It suggests that there is demand-supply mismatch at high demand levels for blood supply to the heart. However there are chances of false positive results. You need clinical examination by a cardiologist. ECHO and angiography should be done. Angiography will exactly assess the status of coronary arteries."

 

                   Another query in the above said literature reads as under:-

          "Q. Does a mildly positive inducible ischemia need an angiogram?

Ans. Its an absolute must in case of inducible ischemia on treadmill test, which suggests reduced blood supply to heart under increased requirements like exercise. This procedure Angiography involves passing radiocontrast dye in the coronary blood to vessels to detect any block in the circulation. If found thrombolysis or stent placement can be the treatment option. Consult your cardiologist for further queries."

                   It is further contended that on the basis of the aforesaid medical literature, it become absolutely clear that the complainant required Angiography test for assessing the nature of the blockage in the arteries supplying blood to his heart. However, the opposite parties did not prescribe any such test. It amounted to negligence on the part of the opposite parties.

9.                Ld. counsel for the complainant has further contended that in a case, where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. Reliance has been placed on V.Krishan Rao- Appellant(s) Vs Nikhil Super Speciality Hospital & another- Respondent(s), Civil Appeal no.2641 of 2010 (Arising out of SL(C) No.15084/2009) D/d 08.03.2010

10.              On the basis of the aforesaid discussion, Ld. counsel for complainant has vehemently contended that complainant had to get himself admitted in DMC & Hospital Unit-Hero DMC Heart Institute, Ludhiana, where Angiography test was conducted on him and he was advised for heart surgery and the complainant got his heart surgery conducted from Fortis Hospital, Sector 62, Phase-III, Mohali, Punjab and stenting was installed in one of the arteries supplying blood to his heart on 15.06.13. It is apparently clear that opposite parties were negligent in giving proper treatment to the complainant and the complainant had incurred heavy expenses at Fortis Hospital, Mohali. It is therefore requested that complaint may be allowed and complainant may be granted compensation on account of mental and physical agony and mental pain to the tune of Rs.18 lacs, besides the cost of litigation.

11.              On the other hand, learned counsel for opposite parties have vehemently contended that there is no dispute that opposite party no.1 was a qualified doctor and was competent to treat the patient. This fact stands admitted in the complaint itself filed by the complainant. Further fact as to whether the patient was provided proper treatment or not, a reference has been made to the report dt. 12.12.13 of Guru Gobind Singh Medical College and Hospital, Faridkot, received on the motion of this Forum, which reads as under:-

            "the patient started treatment for his ailment from Sham Nursing Home Moga from 15.09.12. After two months he was advised TMT which was done at Mittal Lab and CT Centre, Moga. The TMT was positive and the patient continued treatment of heart disease (CAD) from Sham Nursing Home, Moga till 31.05.13. On 01.06.13 the patient consulted Hero DMC Heart Centre Ludhiana, where he was advised Coronary Angiography which was done on 4.6.13 and it revealed double vessel disease. Finally the patient underwent PTCA with stenting at Fortis Hospital, Mohali on 15.6.13.

            The committee is of the opinion that the patient was being given optimal treatment and was stable on the same and therefore there is no negligence on the part of the treating doctor of Sham Nursing Home, Moga."

12.              Now the question arises as to whether all patients with positive exercise stress test (EST) undergo coronary angiogram? Answer to this query has been given by Dr.S.Venkatesan MD in the literature submitted by the opposite parties, which states as under:-

            "Exercise stress test (also called treadmill test) is an important investigation not only in patients with suspected CAD but also in established CAD. In the former group, it helps us to exclude CAD in patients with chest pain and in the later group, it helps us to assess functional capacity, risk stratification and to detect any additional (New or residual).

            Stress test being a physiological test, has a huge advantage of assessing the adequacy of myocardial blood flow without even knowing the coronary anatomy, while Coronary angiogram (CAG) has a zero physiological value in spite of excellent assessment of the coronary anatomy.

            It is irony, in the assessment of angina we are expected to assess the physiological adequacy of myocardial blood flow, we have kept coronary angiogram as a gold standard over and above the much neglected physiological stress test.

            In the above statistics, coronary angiogram was considered gold standard. The problem with this data is that, CAG is not the real gold standard, but it was nominated as a gold standard. We now know normal coronary angiogram is not equivalent to normal coronary arteries and vice versa.

            While both test have limitations, it is logical to believe CAG has an edge over stress test since it visualizes the anatomy. But, once an obstruction is demonstrated by CAG, stress test scores over in assessing the physiological impact of the lesion.

            Stress test will gave vital information to answer this question. If this patient performs 10-12 Met exercise without symptoms it means, the obstruction is not impeding the flow even during stress. He may do well with medical therapy.

            Final message: Every patient, who has positive stress test, (Please note, it could even be true positive) need not undergo CAG. Most interventional cardiologists could feel otherwise, but one should also remember, There is one more role for the interventional cardiologist ie, to intervene when inappropriate interventions are done to their patients.

13.              Not only that the complainant was responding well to the prescribed medicines. The complainant has also failed to dispel the medical report of Guru Gobind Singh Medical College and Hospital, Faridkot. Not only that even no report of the Fortis Hospital, Mohali has been produced on record to prove, if there was any negligence on the part of the opposite parties in giving treatment to the complainant. Even the report dated 9.11.12 obtained from the Mittal Lab and City Scan Centre produced on record by the complainant Ex.C25 reveals that Blood pressure of the complainant was monitored was 150/100. Thereafter on 14.11.12, 20.11.12, 26.11.12, 04.12.12, 14.12.12, 19.12.12, 28.12.12, 15.01.13, 24.01.13, 02.02.2013, 13.02.13, 22.02.13, 07.03.13, 22.03.2013, 10.04.2013, 26.04.2013 and 13.05.2013 the complainant came to opposite parties for regular check-up and the medical slips of the same were produced by the complainant on record, which are Ex.C-5 to Ex.C23. Blood pressure of the complainant was within range of 150/80 mmhg and the complainant responded well to the prescribed treatment and was stable and was not having any problem. Simply because the treatment given by the opposite parties could not ultimately cure the complainant fully, the same is no ground to presume that doctor was negligent. Reliance has been placed on judgement Indian Medical Association, Appellant Vs V.P.Santha and others, Respondents III 1995 (6) SCC 651, whereby in para no.22 it has been observed that that in the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In case Martin F.D'Souza Appellant Vs Mohd. Ishfaq Respondents - 2009 (2) CLT 381, Supreme Court guidelines have been laid down regarding medical negligence:-

1. The professional may be held liable for negligence on the ground that he was not possessed of requisite skill which he professes to have. Thus a doctor who has a qualification in Ayurvedic treat which causes 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 medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an important opinion 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 becaue 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 304-A Indian Penal Code the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings.

                   But in the case in hand, learned counsel for opposite parties has vehemently contended that there is no negligence on the part of the opposite parties in providing medical treatment to the complainant. The complainant has failed to prove his case and the evidence on record produced by the complainant is totally devoid of any merit, rather the evidence produced by the opposite parties, in support of the case, shows that the complaint is false and frivolous and is liable to be dismissed.

14               We have given thoughtful consideration to rival contentions.

15.              In this case there is no dispute between the parties regarding the qualification or competence of the doctor to deal with heart ailment. Dispute regarding the parties pertained to methodology adopted by the doctor to treat the complainant. It is case of the complainant that on 9.11.12 his TMT test was found positive for inducible ischemia and in such case complainant was required to be referred for Angiography. But, however, opposite doctor did not refer him for Angiography, rather he went on treating the complainant by medicines for about one year. In the meantime, the condition of the complainant got deteriorated and he went to DMC and Hospital Unit-Hero DMC Heart Institute, Ludhiana, where he was advised to undergo Angiography and it was found that two coronary arteries were blocked to the extent of 90%. Ultimately complainant had to get himself admitted in Fortis Hospital, Mohali and underwent PTCA with stenting.

16.              Now the question arises as to what is meant by medical negligence? Reference in this context can be made to the observations in Jacob Mathew Vs. State of Punjab and another- 2005 (6) SCC I:-

          "Negligence in the context of the 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 consideration 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 the 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 of Method of treatment was also available or simply because a more skilled doctor would not have chose to follow or resort to that practice or procedure which the accused followed."

                   The question of medical negligence also came up for hearing before the Hon’ble Apex court in Kusum Sharma & others Vs. Batra Hospital & Medical Research Centre 2010 AIR (SC) 1050, wherein following principles were laid down as under:-

“a.     Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

b.       Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

c.       The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what and law requires.

d.       A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. 

e.       In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

f.       The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

g.       Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by

him was acceptable to the medical profession.

h.       It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. 

i.        It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

j.        The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

k.       The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”

 

                   Not only that in V.Krishan Rao appellant(s) Vs. Nikhil Super Speciality Hospital & another Respondent(s), Civil Appeal No.2641 of 2010 decided on 08.03.2010 by Hon’ble Apex court, it has been laid down that:-

“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible

body of medical men skilled in that particular art”….(See page

122 placitum ‘B’ of the report)”      

                  

18.     It has also been held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care (See page 122, placitum ‘A’ of the report)

 

17.              Applying the principles of the judgements ‘supra’ to the facts of the present case, there is no dispute regarding the qualification and skill of the doctor in dispute in providing the treatment to the complainant. Since the dispute pertains to methodology and there is nothing on record to reach to the conclusion that the methodology adopted by the opposite party no.1 was not applicable in ordinary course of treatment, therefore, opposite party no.1 cannot be held guilty for the negligence. One of the queries regarding TMT test positive for inducible ischemia produced on record by the complainant states that Angiography was required to be advised. But, however, the literature produced by the opposite parties on record states that CAG is not Real Gold Standard. Moreover there is report of Guru Gobind Singh Medical College and Hospital, Faridkot, which was called by this Forum before initiating the proceedings, also states that patient was being given optimal treatment and was stable on the same and therefore there is no negligence on the part of the treating doctor of Sham Nursing Home, Moga. There is nothing on record for reaching the conclusion to the contrary. No opinion of the doctors attended on the complainant in DMC and Hospital Unit-Hero DMC Heart Institute as well as Fortis Hospital, Mohali has been produced on record for reaching the conclusion that the attending doctor i.e. opposite party no.1 was negligent in providing the treatment to the complainant. All the medical treatment slips produced on record by the complainant themselves reveal that during the treatment his heath was stable and Blood pressure was normal keeping in view of age of the complainant. In such circumstances, the contention that doctor attending on him i.e. opposite party no.1 did not provide proper care is not proved. The law relied upon by the complainant does not advance the case of the complainant in any manner. Simply because the complainant could not get the desired result, negligence on the part of the opposite parties cannot be presumed.

18.              From the aforesaid discussion, it becomes absolutely clear that the complainant has miserably failed to prove any negligence on the part of the opposite parties. There is no force in the complaint, therefore the same fails and is ordered to be dismissed accordingly. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

 

                   (Bhupinder Kaur)          (Vinod Bala)        (S.S. Panesar)

                   Member                         Member                   President

 

Announced in Open Forum.

Dated:20.07.2015.