Haryana

Yamunanagar

CC/668/2012

Surinder Kumar S/o Kidu ram - Complainant(s)

Versus

Dr.Sumesh Garg - Opp.Party(s)

Mam Chand

08 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                             Complaint No.  … .668  of 2012.

                                                                                             Date of institution: … 21.6.2012.

                                                                                             Date of decision: …..8.5.2015.

Surinder Kumar son of Shri Kidu Ram, resident of V & PO Kalawar, Tehsil Jagadhri, District Yamuna Nagar.   

                                                                                                                       …Complainant.

                                    Versus

 

1. Dr. Sumesh Garg, Vignesh Hospital, Malviya Nagar, Ambala Road, Jagadhri, Distt. Yamuna Nagar.
2. United India Insurance Company Ltd., Branch Office at 60, Janpath, Connaught Place, New Delhi-110001 insurer of Vignesh Hospital, Jagadhri under policy No. 040100/46/11/35/00003796 effective from 30.9.2011 to 29.9.2012.

 

                                                                                                                 …Opposite parties.

                        Complaint under section 12 of

                        the Consumer Protection Act.

 

CORAM:          SH. A.K.SARDANA PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Mam Chand, Advocate, counsel for complainant.   

              Sh.Sushil Garg, Advocate, counsel for OPs No.1 & 2.    

 

ORDER

 

                        Brief facts causing to the institution of the present complaint are that the complainant had fallen ill on 1.2.2012 and was suffering from pain and visited hospital of OP No.1 for his treatment. The OP doctor started his treatment and advised for Ultrasound & X-ray. The complainant approached the Chaudhary Ultrasound & X-ray Centre, Jagadhri for requisite test/report and after receiving the ultrasound as well as x-ray report, the OP doctor started his treatment. Thereafter, the complainant was given glucose in the hospital due to which heavy swelling was noticed on the left hand of the complainant. After seeing this swelling, the OP No.1 had expressed his inability to continue further treatment and had advised him to go to PGI Chandigarh for the same. The complainant after discharge from the hospital of OP doctor, visited PGI Chandigarh for further treatment. On checking in the PGI, it was revealed and found by the doctors of PGI that septic had taken place in the said hand of complainant due to wrong treatment given in the hospital of OP and on 18.2.2012 four fingers of left hand of complainant were cut during the course of treatment in the PGI Chandigarh.  Due to wrong treatment given by the OP No.1 to the complainant, he has suffered a great mental agony and harassment and has become handicapped by his left arm and thus is not able to do work in future due to loss of four fingers of his hand.  It has further been submitted by the complainant that he was earning Rs. 20,000/- per month and since February 2010 onward, he has not done any work due to loss of four fingers of left hand. Thereafter, the complainant also served a legal notice upon the OP No.1 through his counsel but the OP doctor sent a false and frivolous reply of the said notice dated 19.5.2012. In the end, complainant has prayed for issuing a direction to the OP No.1  to pay a sum of Rs. 10,00,000/-( Rs. Ten lacs)  to complainant as compensation on account of financial loss as well as Rs. 5,00,000/- as compensation for mental agony & harassment  and also to pay Rs. 11000/- as litigation expenses etc.

2.                     Upon notice, OP No.1 appeared through counsel and filed written statement raising preliminary objections that the present complaint is wholly misconceived, groundless, false, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law as the same has been filed without jusitified reason/cause against the answering OP just to harass, defame and extort money from him by abusing the process and provisions of Consumer Protection Act, 1986. No specific, scientific and justified allegations with regard to negligence or deficiency in providing services, has been made by the complainant against the answering OP and the complainant has totally failed to explain as to how OP Doctor was negligent, hence the complaint being based on non specific, unscientific and layman conjectures, is liable to be dismissed in limine. In this case, the patient was properly examined, investigated, diagnosed and treated by answering OP as per the prescribed norms of medical practice, which are mentioned in the text books and journals of the subject concerned without deviating from the normal/prescribed line of treatment. The answering OP is a well qualified and reputed surgeon having qualification MBBS, M.S. Despite giving best possible treatment to the patient/complainant using his highest degree of skill to the best of his abilities with due care and caution, no warranty or guarantee was ever given by the answering OP to the complainant about result of treatment since the procedural complication/result is a matter of fact and not a matter of speculation. This complaint is bad for non arraignment and mis-arraignment of parties as the OP No.1 Hospital is insured with United India Insurance Company ltd. 60, Janpath, Connaught Place, New Delhi through its professional indemnity policy No. 040100/46/11/35/00003796 effective from 30.9.2011 to 29.9.2012. On merit, it has been urged that the patient Surender Kumar came to the hospital of answering OP with the complaints of pain. The patient was treated by the answering OP diligently, prudently with due care and caution. The patient and his attendants were explained the poor general condition and the course of illness right from the time of admission in the hospital till the patient was referred to higher centre for further management and treatment. The copy of treatment records alongwith medical literature is attached with the case file. In the end, the answering OP has prayed for dismissal of complaint with exemplary costs.

3.                     In view of the objection raised by OP No.1 in the written statement that his hospital is insured with the United India Insurance Company Ltd. New Delhi, the complainant impleaded the United India Insurance Company as OP No.2 by filing amended title and they were also summoned in this case to put their version, if any.

4.                     OP No.2 filed written statement wherein it was admitted that the OP No.1 Dr. Sumesh Garg,  was insured with the answering OP during the period the patient was treated by OP No.1 on 1.2.2012 and has issued professional indemnity policy No. 040100/46/11/35/00003796 effective from 30.9.2011 to 29.9.2012 whose standard terms& conditions with its exclusion are applicable in the present case. The answering OP accepts the written statement of OP No.1 in totality and the same be considered as its written statement. It has been prayed that the complainant is not entitled to get any alleged amount of compensation in view of the above facts and circumstances of the case.

5.                     To prove his case, complainant has tendered in evidence his Affidavit as Annexure CX and documents as Annexures C-1 to C-20 and closed the evidence whereas on the other hand, OP No.1 has tendered in evidence his affidavit as Annexure RX, and documents as Annexures R-1 to R-17  and closed his evidence.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on the file. Learned counsel for the complainant argued that the OP No.1 doctor had administered glucose to the complainant, due to which heavy swelling developed on his left hand. After seeing the swelling on the hand of complainant, the treating doctor had expressed his inability for further treatment and had advised him to go to PGI Chandigarh for further treatment. After discharge from the hospital of OP No.1, the complainant visited  PGI Chandigarh for further treatment. On checking, it was revealed by doctors of PGI that septic had taken place in the hand of complainant due to wrong treatment given in the hospital of OP No.1and on 18.2.2012 four fingers of left hand of complainant were cut during the course of treatment in PGI Chandigarh. Due to wrong treatment given by OP doctor to the complainant, he has suffered a great mental agony and harassment and has become handicapped by his left arm and is not able to do work in future due to loss of four fingers of his left hand due to negligence of treating doctor.

7.                     On the other hand, counsel for OP No.1 argued that the patient was properly examined, investigated, diagnosed and treated by the treating doctor as per prescribed norms of medical practice which are mentioned in the text books and journals of the subject concerned without deviating from the normal prescribed line of treatment. Counsel for OP No.1 further argued that the version of complainant is not believable at all since in the complaint, he is alleging that “ it was revealed & found by the doctors at PGI Chandigarh that septic had taken place in the left hand of the complainant due to wrong treatment given in the OP Hospital” whereas as per discharge & follow up card tendered by the complainant as Annexures C-4 & C-5, he has never been treated by doctors at PGI Chandigarh as alleged rather has been treated by doctors at Government Medical College Hospital, Sector 32, Chandigarh.  Counsel for OP No.1 further argued that the complainant has also failed to explain as to how the OP No.1 doctor was negligent in providing the treatment and has drawn the attention of this Forum towards the case law delivered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as G. Ravender Rao & Others Versus Ghulam Dastagir & Others, 2013 (1) CLT page 594, wherein it has been held that “the appellants, who are well qualified doctors treated the patient as per their best professional judgment and on the basis of diagnostic and clinical tests from a well equipped laboratory-Held, there is no medical negligence or deficiency in service in the treatment of patient.

                        Learned counsel for OP No.1 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 No.1 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 No.1 further relied upon another case law titled as V. Bhavani Vs. Dr. S.Siva Subramaniam, 1(2013) CPJ page 584 (NC) wherein it has been held that respondent, a well qualified doctor, used his best professional judgment and required medical skills to diagnose appellant’s illness and thereafter conducted required surgery and also took due post operative care, including referring her to higher medical institution when it was considered necessary-Negligence not proved. Learned counsel for OP No.1 further relied upon the case law titled as N. Krishna Reddy Vs. Christian Medical College & Hospital, 2007 (2) CPR page 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 the complainant, no negligence or deficiency in service could be found against the hospital and doctors”.

8.                     From the facts narrated above, it is clearly established that the complainant has failed to prove medical negligence on the part of OP doctor qua treating him 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. Besides this, the complainant in his complaint has alleged that it was revealed & found by doctors at PGI Chandigarh that septic had taken place in the left hand of complainant due to wrong treatment given by OP doctor whereas there is no any document on the file to prove that the complainant got his treatment from PGI Chandigarh and septic had taken place due to wrong treatment of OP doctor. Moreover, the complainant was referred by the OP No.1 to sector 32 Medical College & Hospital Chandigarh for further management as clear from Annexure C-2 and not to PGI Chandigarh and entire record of treatment tendered by complainant Annexure C-4 to C-20 relates to Government Medical College Hospital, Chandigarh and thus the present complaint is also defective one for the reasons recorded above.  So, in these circumstances, we are unable to hold that OP No.1 doctor was ever negligent or deficient in providing proper medical services to the complainant as alleged in the complaint. Further, the authorities G. Ravender Rao & Others Versus Ghulam Dastagir & Others, Ajay Gupta Versus Pradeep Aggarwal (Dr.) & others, Kusam Sharma & Others Versus Batra Hospital & Medical Research Centre & Others, V. Bhavani Vs. Dr. S.Siva Subramaniam and N. Krishna Reddy Vs. Christian Medical College & Hospital (supra) tendered by the counsel for OP No.1 is fully applicable in the present case. Hence we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. File be consigned to the record room after due compliance.

Announced: 8.5.2015.

                                                                                          (A.K.SARDANA)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER