Punjab

Sangrur

CC/63/2015

Chamkaur Singh - Complainant(s)

Versus

Dr.Yashpal Singh - Opp.Party(s)

Shri Sukhwinder Singh Bassi

24 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

               

 

                                                Complaint No.    63

                                                Instituted on:      06.02.2015

                                                Decided on:       24.08.2015

 

Chamkaur Singh aged about 45 years son of Jangir Singh, resident of village Bhamabadi, Tehsil and Distt. Sangrur.

                                                                …Complainant.

                                Versus

1.             Dr. Yashpal Singh son of Niranjan Singh C/o Yash ENT Hospital, Street No.2, Mehal Mubarak Colony, Sangrur.

2.             United India Insurance Company Limited, Branch Office; Dhuri Road, Sangrur through its Branch Manager.

                                                                …Opposite parties

 

For the complainant    :       Shri S.S.Bassi, Advocate.

For OP No.1              :       Shri V.K.Singla, Advocate.

For OP No. 2             :       Shri Ashish Kumar, Advocate.

 

 

Quorum:    Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

Order by : K.C.Sharma, Member.

 

1.             Shri Chamkaur Singh, complainant (referred to as complainant in short) has preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that son of the complainant, namely, Randhir Singh aged about 18 years was suffering from enlargement of nasal bone from the left side, as such on 7.7.2014, the complainant had gone to check up his son Randhir Singh in the hospital of OP number 1, who after check up admitted him and advised the complainant that the nasal bone of the son of the complainant would be operated upon and accordingly on 7.7.2014 the operation upon the nasal bone of  son of the complainant was done and was discharged on 8.7.2014 and advised the complainant for follow up treatment to come up on 16.7.2014.  It is further stated that on 16.7.2014 the complainant went along with his son for check up, who prescribed some more medicine. It is further stated that after some days, the condition of son of the complainant became deteriorated and neck and face of son of the complainant swelled. After that the complainant went on 5.8.2014 to the hospital of OP number 1 for recheck, who advised some medical tests and after seeing the medical test reports of the son of the complainant, OP number 1 advised to get the medical treatment from Dr. Ravinder Bansal, who also got conducted some medical tests and after seeing the reports, Dr. Ravinder Bansal told that his son is suffering from blood cancer and advised the complainant to get further treatment from PGI Chandigarh.  It is further stated that on the advice of Dr. Ravinder Bansal, on 6.8.2014 the complainant took his son for medical treatment to PGI Chandigarh, where he remained admitted up to 17.8.2014 and was discharged on that date.  It is further stated that thereafter the complainant took his son to PGI Chandigarh for various occasions and the condition of his son became very critical and was again admitted in the PGI Chandigarh on 25.8.2014 and on 29.8.2014 he died.  It is further averred that the attending doctor of the PGI Chandigarh, who gave treatment to son of the complainant told that his son died due to infection by operating upon the nasal bone of son of the complainant and due to increase of infection, the son of the complainant suffered blood cancer. It is further stated that the complainant came to know that it was not a case of operation of nasal bone, rather the son of the complainant should have been immediately referred to PGI Chandigarh for the treatment.  Further the complainant approached the Ops to hand over the complete medical record of son of the complainant, but OP number 1 refused to do so. It is further stated that the complainant has spent an amount of Rs.15,00,000/- on his treatment.  It is further stated that on 26.9.2014, the complainant filed written application no.7786P dated 26.9.2014 to the SSP Sangrur, which was referred to DSP Sangrur, who referred the application to Civil Surgeon Sangrur for getting his opinion, where Board of Doctors inquired the matter and the penal of the doctors constituted by the Civil Surgeon, gave opinion in favour of OP number 1 by favouring OP number 1.   Thus, alleging deficiency in service on the part of the OPs, the complainant has prayed that the OPs be directed to pay him a compensation of Rs.15,00,000/- on account of medical negligence along with interest @ 15 % per annum and further claimed compensation and litigation expenses.  

 

2.             In written reply filed by OP number 1, legal objections are taken up on the grounds that the present complaint is wholly misconceived, groundless, frivolous, vexatious and has been filed to harass and defame the OP, that no specific, scientific, and justified allegations of deficiency in service on the part of the OPs are taken up. It is further stated that the patient, Randhir Singh came to the OP with a complaint of something projective in left nostril on 5.7.2014 and OP diagnosed him as caudal dislocation of nasal septum from left side and the Op advised him surgery for the same. OP operated the patient diligently, prudently with utmost due care and caution on 7.7.2014 under local anaesthesia and the OP corrected his caudal dislocation of nasal septum without any complication. The patient was investigated within normal limits except marginally increase in TLC and the patient was discharged on 8.7.2014 in satisfactory condition. It is further averred that the Op advised the patient for follow up check up after seven days and the patient came for follow up check up on 16.7.2014 and at that time the patient was not having any complaint of the nose.  It is further stated that the patient came again on 5.8.2014 with a complaint of pain in the throat, swelling on face and breathlessness from one day and the patient was examined and found clinically nose NAD. The OP advised the patient for blood investigation and after seeing the reports, the OP got suspicious of blood cancer, so the  OP advised the complainant to concern medical specialist and thereafter the patient never came to the complainant.  The complainant made the complaint before the SSP Sangrur regarding the death of the patient due to acute lymphoblastic leukemia on 29.8.2014.  It is stated that there is no negligence or deficiency in service on the part of the OP number 1.

 

3.             In reply filed by OP number 2, it is stated that on the request of the OP number 1, the United India Insurance Co. ltd. Branch New Delhi issued  a professional indemnity doctors policy w.e.f. 30.10.2013 to 29.10.2014 in favour of OP number 1 subject to confirmation and the terms and conditions of the policy. The sum insured under the policy was Rs.5,00,000/- only for one year. It is stated further that neither the complainant nor OP number 1 lodged any claim with the OP number 2.  The other allegations in the complaint have been denied.

 

4.             The learned counsel for the complainant has produced Ex.C-1 inquiry report, Ex.C-2 copy of application consisting of three pages, Ex.C-3 discharge slip, Ex.C-4 bed head ticket consisting of page, Ex.C-5 treatment slip, Ex.C-6 admission record of PGI consisting of twelve pages, Ex.C-7 statement of complainant, Ex.C-8 affidavit and closed evidence. On the other hand, the learned counsel for OP number 1 has produced Ex.OP1/1 affidavit of Dr. Yash Pal along with annexure R-1 to R-4, Ex.OP1/2 copy of report of DSP dated 23.11.2014 and closed evidence. The learned counsel for OP number 2 has produced Ex.OP2/1 copy of insurance policy and closed evidence.

 

5.             We have carefully perused the complaint, evidence of the parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits acceptance, for these reasons.

 

6.             In the present case, the son of the complainant was operated upon by OP number 1 on 7.7.2014 for enlargement of nasal bone from left side and after the operation, the OP number 1 discharged the son of the complainant on 8.7.2014  with the advice that for follow up treatment to come up on 16.7.2014.  Later on when the son of the complainant had problem of swelling on the neck and face, he again visited OP number 1 on 5.8.2014 and OP number 1 then advised medical tests and then referred the patient to Dr. Ravinder Bansal and subsequently as per the advice of Dr. Ravinder Bansal, the complainant took his son to Post Graduate Institute of Medical Sciences and Hospital Chandigarh (PGI in short) where he was treated for blood cancer.  The complainant then approached OP number 1 and requested him to hand over the complete medical record, but the OP number 1 refused to hand over the same.  The complainant also moved application with the police alleging that his son died due to medical negligence of OP number 1, but the medical board  constituted on the application of the complainant found no deficiency in service on the part of OP number 1.

 

7.             The OP number 1 has admitted having operated the son of the complainant on 7.7.2014 and subsequent follow up for 16.7.2014 and his visit on 5.8.2014 with the complaint of pain in the throat, swelling on face and breathlessness and on this the patient was advised some medical tests and then on seeing the reports of the tests, the OP number 1 became suspicious of blood cancer and then referred the patient to Dr. Ravinder Bansal for further treatment.  The OP number 1 has denied any medical negligence as the medical board constituted as per the application of the complainant to SSP Sangrur also have clean chit with OP number 1.

 

8.             The OP number 2 denied the allegations of the complainant for want of knowledge and had admitted having issued the policy to the OP number 1 under the professional indemnity documents policy.

 

9.             After hearing the arguments of the learned counsel for the parties and on the perusal of the documents placed on record, we find that the main point of controversy in the present complaint is whether the OP number 1 has committed any medical negligence while treating the patient from 7.7.2014 to 5.8.2014. The OP number 1 has admitted in the reply that the patient was under his treatment for 7.7.2014 to 5.8.2014.  In the affidavit document Ex.OP1/1, the OP number 1 has stated in para 6 that “I say that, I corrected his caudal dislocation of nasal septum without any complication. The patient was investigated were within normal limits except marginally increased TLC”.

 

10.            Now, the question arises if the TLC of the patient was on the increased side, then as a prudent doctor, the OP number 1 should have become suspicious and should have first treated the patient to bring down the TLC within the normal limits or should have consulted some medical expert as has been done by him on 5.8.2014 as the OP number 1 is a surgeon.  Then if on 5.8.2014 after seeing the clinical reports, the OP number 1 became suspicious of blood cancer then why on 7.7.2014 he could not see the clinical reports in the right perspective and have not referred the patient to medical expert.  The OP number 1 had himself stated in the document Ex.OP1/1 at para 9 that “ I say that, the patient again came to me on 5.8.2014 (one month after surgery) with a complaint of pain in the throat, swelling on face and breathlessness from one day.  I advised the patient for blood investigation and after seeing the reports, I got suspicious of blood cancer. So I advised the patient party to consult concerned medical specialist because this was not a case of my speciality”. The OP number 1 has not been able to place on record as to what new tests were advised by him on 5.8.2014 which was not done on 7.7.2014.  If the medical tests were the same, then the OP number 1 should have referred the patient to medical expert on 7.7.2014 instead of operating his nose and had the doctor diagnosed the disease well within the time before operating the nasal bone then perhaps the life of the patient could have been prolonged because of early and timely treatment.

 

11.            Further the report of the medical board is based on whatever the record was supplied by the complainant, but then the version of the complainant is that he was not supplied all the relevant record by OP number 1.

 

12.            The board of doctors in the report annexure R-4 has also observed that in the disease the range of TLC depends at the stage of the disease and to diagnose this disease many tests are required just like, complete blood count, peripheral blood film, ultrasound abdomen, imaging chest, bone marrow study and tissue biopsy.  This all shows that when the OP number 1 found increased TLC, then why he had not recommended all these tests which the medical board has mentioned in the report dated 14.11.2014.

 

13.            The OP number 1 has cited the judgment of the Hon’ble Supreme Court of India delivered in the Civil Appeal No.1385 of 2001, decided on 10.02.2010 in the case of Kusum Sharma and others versus Batra hospital and Medical Research Centre and others, in which the Hon’ble Court has given certain guidelines for deciding medical negligence cases.  We have gone through the judgment and find that the OP number 1 has not been able to look into the gravity and risk involved on 7.7.2014 and had operated the patient.

 

14.            Further the complainant has also cited the judgment of Hon’ble National Commission New Delhi delivered in Revision Petition Number 698 of 2008, decided on 16.5.2013 in the case of Jyotshna Rani Ghosh and others versus Sanjukta Curatives (Nursing Home) 2013(3) CPJ (NC) 150, in which the Hon’ble National Commission has also referred the judgment of Hon’ble Supreme Court of India. Para 19 of the judgment is reproduced below:-

“19.  The mere fact that Expert Committee has observed that Physician initiated proper and adequate treatment, is of no help to the respondent in the present case as there is over whelming evidence on record which lead to the only conclusion that it is respondent alone who was carelessness and gross negligent in attending the patient. In V. Kishan Rao versus Nikhil Super Speciality Hospital and another III (2010) CPJ 1 (SC), Apex Court observed:-

18. In the opinion of this court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion.  This court makes it clear that in these matters no mechanical approach can be followed by these Fora.  Each case has to be judged on its own facts.  If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.”  In the present case also, it is the OP number 1 which is negligent and careless in handing the patient.

 

 

 

15.            The learned counsel for the complainant has cited judgment of Hon’ble Supreme Court of India decided on 14.5.2009 in Civil Appeal no.4119 of 1999 in Nizam’s Institute of Medical Sciences vs. Prasanth S. Dhananaka and others, in which the Hon’ble Apex court of India has held that ‘once the initial burden has been discharged by the complainant, by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts to the hospital or attending doctors. It is for the hospital to satisfy the court that there was no lack of care or diligence.  Further the Hon’ble National Commission in First Appeal No.19 of 2009, decided on 24.4.2014 in Dr. Baidyanath Chakraborty and others versus Chandi Bhattacharjee and others, in which the Hon’ble National Commission has held “The Law of negligence applies to doctors, as it applies to other professionals like lawyers, architects, etc. as they are required to perform the task assigned to them with the requisite skill and expertise possessed by them for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution.”

 

16.            In the light of above discussion, we are of the opinion that the OP number 1 is deficient and is guilty of medical negligence as he was careless and was gross negligent in attending the patient.

 

17.            So, keeping in view the above facts, we allow the complaint and direct Ops number 1 and 2 to pay to the complainant a sum of Rs.5,00,000/- being the amount of compensation on account of medical negligence and further direct them to pay an amount of Rs.10,000/- being the amount of litigation expenses. The above amounts shall be paid by the Ops jointly and severally.

 

 

18.            This order of ours be complied with within a period of thirty days of its communication. A copy of this order be issued to the parties free of charge. File be consigned to records.

                Pronounced.

                August 24, 2015.

                                                    (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

 

                                                                (Sarita Garg)

                                                                    Member