Punjab

Ludhiana

CC/19/506

Charanjit Singh - Complainant(s)

Versus

ESI Hospital - Opp.Party(s)

Devan Verma Adv.

31 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 506 dated 31.10.2019.                                                        Date of decision: 31.01.2023.

 

1. Charanjit Singh aged about 41 years S/o. S.Gurmukh Singh, resident of 45-A, Model Gram, Ludhiana.
2. Ekamjot Singh minor son of Charanjit Singh, resident of 45-A, Model Gram, Ludhiana through his real father, next friend and guardian ad litem, Charanjit Singh S/o.Gurmukh Singh, complainant No.1.                                                                                               ..…Complainants

                                                Versus

1. ESI Hospital, Ludhiana through its Chief Medical Officer or any other authorized person.
2.  Ministry of Labour and Employment, Govt. of India, New Delhi through its Secretary or any other competent authorized person.
3. Dr. Sawinder Singh Dhingra, E.S.I. Hospital, Ludhiana.                            
4. Dr. Anmol Rattan Kaith, E.S.I. Hospital, Ludhiana.
5. Dr. Amanpreet Kaur, E.S.I. Hospital, Ludhiana.                               
6. Dr. Saroop kaur, E.S.I. Hospital, Ludhiana.
7. C.M.C. Hospital, Ludhiana through its Incharge Medical Officer or any other authorized person.

…..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         Sh. Rishi Dutta, Advocate.

For OP1 to OP3, OP5    :         Sh. Amandeep Malhotra, Advocate

and OP6.                        :         (Defense of OP1 to OP3, OP5 and OP6 already                                          struck of vide order dated 22.11.2021)

For OP4                         :         Sh. Vijay Kumar Gupta, Advocate.

For OP7                         :         Sh. Ravison Mattu, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the complaint are that the wife of complainant No.1 namely Ramandeep Kaur was asthmatic patient and was suffering from major problem. The complainant is holder of ESI hospital card bearing No.2613418425 and he got admitted his wife Ramandeep Kaur in opposite party No.1 hospital on 08.10.2018. It was brought to the notice of Dr. Sawinder Singh Dhingra (opposite party No.3), Dr. Anmol Rattan Kaith (opposite party No.4) and Dr. Amanpreet Kaur (opposite party No.5) that Ramandeep Kaur is suffering from asthma upon which these doctors told the complainant that a minor operation is required to be done which would take 10 to 20 minutes only. The said doctors took Ramandeep Kaur into operation theatre at about 09.15 AM. After some time, the complainant observed some unusual movement in operation theatre and became apprehensive. He enquired about the welfare of his wife from these doctors but the complainant was kept busy by the doctors on one pretext or the other and also kept the complainant running on the pretext of brining medicine. On persistence of the complainant, the said doctors disclosed that Ramandeep Kaur had developed certain problems and she is required to be taken to CMC Hospital, Ludhiana. However, they could not give satisfactory reply to the complainant for reason of the problem but they started apologizing from him and his relatives. The doctors discharged Ramandeep Kaur at 10.40 AM from ESI Hospital, Ludhiana. They accompanied the complainant while shifting her to CMC Hospital, Ludhiana where she was admitted at about 02.30 PM. The time taken for shifting Ramandeep Kaur from ESI Hospital to CMC Hospital and the time which was consumed in generating P form and in providing pulse oxy meter and oxygen to Ramandeep Kaur  by opposite party No.3 to opposite party No.7, resulted in deterioration of the condition of Ramandeep Kaur. The said time gap was precious which was wasted by the said doctors which ultimately resulted into death of Ramandeep Kaur on 29.10.2018. Ramandeep Kaur was administered general anesthesia by opposite party No.3 to opposite party No.6 without the support of ventilator which could not have been given to her as she was a known patient of asthma. Further there is no provision of ventilator in ESI Hospital and she could not have been operated there. The act of the opposite parties was negligent which resulted in untimely death of Ramandeep Kaur at the young age of 37 years. Opposite party No.2 has been joined as necessary party for proper and effective adjudication of the matter in dispute.

                   The complainant further stated that the Civil Surgeon, Ludhiana conducted an inquiry regarding the illegal and negligent acts of opposite party No.1 and 3 to 7 by the board of doctors in pursuance of the report No.6 dated 29.10.2018 lodged with Police Post Kochar Market, Police Division No.5, Ludhiana. It was held in the said report that the above said doctors acted negligently and in a criminal way resulted into death of Ramandeep Kaur. The complainants further stated that complainant No.1 has suffered a loss of Rs.50 Lacs by the loss of his wife and complainant No.2 has suffered a loss of Rs.1 Crore on the account of death of his mother at the said young age of 37 years. The complainants further stated that as this Commission has pecuniary jurisdiction of Rs.20 Lacs only as such they claim only Rs.16 Lacs from the opposite parties i.e. Rs.4 Lacs for complainant No.1 and Rs.12 Lacs for complainant No.2. The complainants issued legal notices dated 30.07.2019 and 13.08.2019 upon the opposite parties but to no effect. Hence this complaint, whereby the complainants have claimed Rs.16 Lacs from the opposite parties along with Rs.55,000/- as litigation expenses.

2.                Upon notice, opposite party No.1 to 6 appeared through counsel Sh. Amandeep Malhotra, Advocate.

3.                Dr. Sawinder Singh Dhingra, opposite party No.3 appeared in person and submitted his written version stating therein that Ramandeep Kaur had to undergo Nasal Polyp surgery on dated 09.10.2018. She was a known case of bronchial asthma and was on treatment from last 4 years. Her pre-anesthesia checkup was done on 08.10.2018. The patient was proposed for surgery under moderate risk disclosed by chest physician. She and her relative both gave informed consent. On the day of surgery Dr. Saroop Kaur, Sr. Anesthesia, reassessed patient history, duly obtained signed consent of the patient and her relative.  After proper pre-operation examination, she started induction of anesthesia. All the necessary medicines were already present in the operation theatre from ESI supply and relatives of the patient were not asked to bring medicine from outside. During induction of anesthesia, there was deterioration of SPO2 & fall in BP and pulse rate. Opposite party No.3 immediately intervened and took best possible measures. In due process, detailed steps taken are written in anesthesia notes in file. Opposite party No.3 further stated that the patient was referred for long term ventilation & ICU care to higher centre. Since relatives of the patient were insisting for cashless treatment that is why P Form (referral form) was generated and the patient was kept on ventilator in operation theatre under observation. The decision to shift the patient to higher centre was taken and thereafter, necessary permissions for referral were taken. All the compulsory things for shifting the patient like bainz circuit, O2 cylinder and pulse oxy meter were arranged. During completion of all the referral formalities and making the arrangements for shifting, the patient was on ventilator and monitored in operation theatre itself. Meanwhile, relatives of the patient were informed repeatedly, but instead of cooperation, they were making noise. During transportation and arranging ICU bed in CMC Hospital, patient was accompanied by opposite party No.3 and Dr. Saroop Kaur. There is no time wasting in the referral, rather all the procedures were done as early as possible. The time lapse was in the traffic and after reaching CMC Hospital, on arranging ICU bed by CMC Hospital. During this time, opposite party No.3 and Dr. Saroop Kaur was with the patient and the patient was on bainz circuit with O2 cylinder and with the pulse oxy meter. The time of 02.30 PM was of file generation, not the time when the patient reached CMC Hospital emergency. So at no point of time, the patient was neglected or unattended. Moreover, the anesthesia department of ESI Model Hospital is well equipped and ventilators are available in work station (anesthesia machine) used for anesthesia. Major surgeries are being performed in department. Ventilators are available in work station used for anesthesia in department. Opposite party No.3 further stated that no such observations made by medical board, instead they quoted, doctors made maximum efforts to treat the patient with their available resources. Medical board also quoted that according to anesthesia text books, this incident can occur in 9% cases. In asthmatic patients the risk of complications as compared to normal patients is 4 times more. According to the board, the moderate risk is well explained to the patient and her relatives. In the end, opposite party No.3 denied any negligence in providing treatment to Ramandeep Kaur and prayed for dismissal of the complaint.

3.                Opposite party No.4 Dr. Anmol Rattan Kath appeared in person and filed written statement  whereby stating that the patient Ramandeep Kaur came to ENT OPD to the ESI Hospital, Ludhiana where he was posted as Senior Resident doctor on contractual basis in ENT department under Dr. Rajan Sayal (Head of Department). She was diagnosed with medical condition known as Nasal Polyps on CT scan for which she was advised to undergo FESS (Functional Endoscopic Sinus Surgery) under General Anesthesia which is a major surgery. The patient was attended by him during her initial OPD visits. She was admitted and, as told by her also, a known case of Bronchial Asthma, for which chest fitness by chest and TB department and pre-anesthesia checkup (PAC) by anesthesia department was undertaken by ENT team. The patient was posted for surgery on 09.10.2018. She was admitted one day prior to surgery under ENT department i.e. on 08.10.2018. On 09.10.2018, the ENT team consisting of Dr. Rajan Sayal, Head of the department, Dr. Amanpreet Kaur, Senior Resident, opposite party No.4 Dr. Anmol Kath, Senior Resident himself, Dr. Ramandeep Singh, Senior Resident were present in the operation theatre whereas opposite party No.4 was on floor duty (non operating) as per instructions of the said head of the department. Opposite party No.4 further certified that “being on floor duty” means that opposite party No.4 was just to assist the operating team, if called upon to do so. However, throughout, the assistance of opposite party No.4 was not called for by the operating team. The patient was shifted to the operation theatre on 09.10.2018 at around 09.15 AM and handed over to the anesthesia team. At around 09.45 AM , opposite party No.4 was told by HOD anesthesia team that some complication occurred during induction of anesthesia. The patient was not handed over to ENT team for surgery. As all the required medicines were provided by the ESIC hospital so the attendants were not asked to bring any medication from outside. As the patient Ramandeep Kaur was under anesthesia team who were managing the complication, they decided to refer the patient through ESI Referral system to CMC Hospital for further management. The above said situation was not under the purview of opposite party No.4. During the above mentioned process from complication, referral and during shifting the patient to CMC Hospital, the patient was under continuous monitoring and mechanical support by anesthesia team. Opposite party No.4 further alleged that he had examined the patient only during her initial OPD visits and performed his duties with full regard and responsibility for the well being of the patient in good faith and without any negligence at all. All due care and caution was taken which was required under the standard practice in normal medical parlance. Opposite party No.4 further alleged that the medical board in its report stated that the doctors made the best possible efforts with their available resources to treat the patient and the board has observed that the moderate risk factor was well explained to the patients and her relatives by the operating team. Moreover, the medical board did not find any medical negligence on the part of opposite party No.4. In the end, opposite party No.4 has prayed for dismissal of the complaint.

4.                Opposite party No.7 appeared through counsel Sh. Ravison Mattu, Advocate and filed written statement by stating that in fact patient Ramandeep Kaur, CMC Hospital, Ludhiana Unit No.C-7852029 was brought to Emergency Room at 02.20 PM on 09.10.2018 and was attended immediately by the doctors from emergency department. ENT department, intubated with Endotracheal Tube No.6.5 by Dr. Valsa, Senior Professor, Department of Anesthesia, Neurology Department and Internal Medicine. The paper work and making of admission file was made after the stabilization of the patient at 02.48 PM. Thereafter, the patient was shifted to intensive care unit on ventilator subsequently the patient was seen by the intensivist, physicians, neurologists and other doctors as needed. Opposite party No.7 in its written statement has reproduced the treatment notes from 10.10.2018 till 29.10.2018 with regard to the medical condition and the treatment given to Ramandeep Kaur. Opposite party No.7 further submitted that on 29.10.2018, the patient had been having intermittent tracheostomy tube block for which suctioning was done at regular intervals. Tracheostomy tube No.7.5 was then changed to No.7.0. The patient was not able to ventilate in spite of change of tube and had a cardiac arrest at 01.15 AM. CPR started, tracheoestomy tube No.7 changed under vision and CPR continued however, the patient could not be revived and she was declared dead at 02.15 AM.

                   On merits, opposite party No.7 reiterated the crux of averments made in the preliminary objections and has denied any negligence or deficiency in service on its part and in the end, has also prayed for dismissal of the complaint.

5.                Opposite party No.1 to 3, opposite party No.5 and 6 failed to file written statement despite grant of numerous opportunities and as such, their defence was struck of 22.11.2021.

6.                The complainants filed rejoinder to the written statement of opposite party No.4 Dr. Anmol Rattan Kath by reiterating the facts mentioned in the complaint and controverting those mentioned in the written statement filed by opposite party No.4. However, it has been added that Ramandeep Kaur was not properly treated and was administered excess amount of anesthesia in the operation theatre by the anesthesia team which created complications to Ramandeep Kaur. Opposite party No.1 and 3 to 6 have treated Ramandeep Kaur in a negligent manner. It is further added that Ramandeep Kaur was negligently handled and the time gap was wasted by the opposite parties in shifting her from ESI Hospital to CMC Hospital, Ludhiana which adversely affected the health of the deceased. The deceased was not provided P Form, pulse oxy meter and oxygen etc. within the required time. So the stand taken by the doctors in their respective written statements is self contradictory.

7.                The complainants have also submitted rejoinder to the written statement filed by opposite party No.7 by reiterating the facts mentioned in the complaint and controverting those mentioned in the written statement filed by opposite party No.7.                 

8.                In support of their claim, the complainant No.1 Sh. Charanjit Singh tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainants also tendered documents Ex. C1 is the copy of undated complaint addressed to SHO, Police Station Division No.5, Ludhiana against Dr. Surinder Dhingra, Dr. Anmol Rattan Kath, Dr. Aman and their other unknown companions and staff for registration of FIR Under Section 304, 506 and 34 IPC, Ex. C2 is the letter addressed by Civil Surgeon, Ludhiana to Commission of Police, Ludhiana for sending enquiry report of the board of doctors in pursuance of report N.6 dated 19.10.2018, under Section 174 Cr.P.C., Police Post Kochhar Market, Police Station Division No.5, Ludhiana, Ex. C3 is the medical board report, Ex. C3/A is the statement of the complainant dated 13.12.2018 recorded during inquiry conducted by the medical board whereby he stated that my complaint may be treated as my statement, Ex. C3/B is the copy of statement of complainant Charanjit Singh dated 19.03.2019 stating therein that he was not made aware of the details before obtaining his signatures on the consent form, the word ‘moderate risk’ on the consent form was written subsequently, Ex. C3/C is the cross examination of Dr. Sawinder Lal by the complainant, Ex. C3/D is the cross examination of doctors of ESI Hospital, Ex. C3/E is the reply by Dr. Sawinder  Singh Dhingra dated 17.12.2018 to the Enquiry Committee, Civil Surgeon, Ludhiana, Ex. C3/F is the copy of reply submitted by Dr. Amanpreet Kaur to the Enquiry Committee, Civil Surgeon, Ludhiana, Ex. C3/G is the  reply submitted by Dr. Amanjeet Singh to the Enquiry Committee, Civil Surgeon, Ludhiana, Ex. C3/H is the copy of reply submitted by Dr. Anmol Rattan Kath to the Enquiry Committee, Civil Surgeon, Ludhiana Ex. C3/I is also the reply submitted by Dr. Saroop Kaur to the Enquiry Committee, Civil Surgeon, Ludhiana, Ex. C4 and Ex. C5 are the legal notices dated 13.08.2019 and 30.07.2019, Ex. C5, Ex. C7 to Ex. C12 are the postal receipts, Ex. C13 is the copy of e-Penchan Card issued by Employees State Insurance Corporation in the name of the complainant and closed the evidence.

9.                On the other hand, counsel for opposite party No.4 tendered affidavit Ex. Ra/A of Dr. Anmol Rattan Kath along with documents Ex. RW4/1 is the copy of the certificate dated 10.09.2016 issued by Dayanand Medical College & Hospital, Ludhiana, Ex. RW4/2 is also the copy of certificate dated 24.03.2017 issued by Employees State Insurance Corporation Model Hospital Baddi, Ex. RW4/3 is the copy of experience certificate dated 07.12.2018 issued by ESIC Model Hospital, Ludhiana, Ex. RW4/4 is the certificate issued by University of Kerala, Ex. RW4/5 is the copy of certificate in Master of Surgery issued by Baba Farid University of Health Sciences, Ex. RW4/6 is the registration certificate of additional medical qualification issued by Punjab Medical Council in the name of Dr. Anmol Rattan Kath and closed the evidence.

                    The counsel for opposite party No.7 tendered affidavit Ex. RW7/1 of  Dr. Allen Joseph, Medical Superintendent, Christian Medical College & Hospital, Ludhiana and affidavit Ex. RW7/2 of Dr. Vikas Loomba, Professor, Medicine Department of Christian Medical College & Hospital, Ludhiana  along with documents Ex. R7/1 is the copy patient record of Ramandeep Kaur, Ex. R7/2 is copy of profile of Dr. Vikas Loomba containing his academic achievements and publications etc. and closed the evidence.

10.              We have heard the arguments of the counsel for the parties and also gone through the complaint, rejoinders, affidavit and annexed documents and written statements along with affidavits and documents produced on record by both the parties. We have also gone through the written arguments submitted by the complainant as well as opposite party No.1 to 3, 5 and 6. 

11.              The complainants Charanjit Singh and Ekamjot Singh, being husband and minor son of the deceased Ramandeep Kaur have invoked the jurisdiction of this Commission by raising consumer dispute with regard to the medical negligence of the opposite parties. Dr. Sawinder Singh Dhingra, opposite party No.3 and Dr. Saroop Kaur, opposite party No.6 are the Anesthetists, Dr. Anmol Rattan Kath, opposite party No.4 is the ENT specialist, Dr. Amanpreet Kaur, opposite party No.5 is Senior ENT specialist. At the relevant time they were posted in the ESI Hospital i.e. opposite party No.1.  Opposite partyNo.7 i.e. CMC Hospital, Ludhiana is an empanelled hospital under ESI Hospital where the deceased Ramandeep Kaur was referred by opposite party No.1 hospital and remained admitted till her death on 29.10.2018.

12.              Uncontroverted facts that emanates from the pleadings and the evidence on record are that Ramandeep Kaur, a woman of 37 years of age was a known case of Bronchial Asthma and was already under treatment for the last four years. Dr. Anmol Rattan Kath, opposite party No.4 has been attending to her during her initial OPD visits. She was diagnosed with medical condition known as Nasal Polyps and she was advised to undergo FESS surgery (Functional Endoscopic Sinus Surgery) under general anesthesia. Ramandeep Kaur as well as complainant No.1 were made aware of the fact that surgery involves moderate risk. Her pre-anesthetic checkup (PAC) was undertaken by the anesthesia department of opposite party No.1 hospital on 01.10.2018 and surgery was posted on 09.10.2018. Ramandeep Kaur was admitted one day prior to her surgery i.e. on 08.10.2018 under ENT department of opposite party No.1 hospital. 

13.              On 09.10.2018 i.e. on the day of surgery, medical condition of Ramandeep Kaur was reassessed and consent of patient Ramandeep Kaur and one of her relative were obtained. As the operation began, medication was given to Ramandeep Kaur and when anesthesia was being inducted, condition of the patient started deteriorating. Services of medical specialist Dr. Tejinder Singh were also availed. When the condition did not improve, it was decided to refer Ramandeep Kaur for long term ventilator and ICU care to higher centre i.e. opposite party No.7 at 10.40 AM. During transit, she was accompanied by opposite party Dr. Sawinder Singh Dhingra and opposite party Dr. Saroop Kaur.

14.              Ramandeep Kaur was shifted to the emergency room at opposite party No.7 hospital at 02.20 PM and later on she was shifted to intensive care unit on ventilator. She was treated there for about 20 days. On 29.10.2018, at about 01.15 AM, she was declared dead due to cardiac arrest.

15.              After few days, the complainant moved an application Ex. C1 to SHO, Police Station Division No.5, Ludhiana for registration of FIR against Dr. Sawinder Singh Dhingra, opposite party No.3,  Dr. Anmol Ratan Kath, opposite party No.4, Dr. Amanpreet Kaur, opposite party No.5 and their companion doctors and staff under Section 304/506/34 IPC alleging that the doctors of ESI Hospital were negligent at the time of performing the operation due to which his wife died on 29.10.2018. They had tried to conceal medical condition of Ramandeep Kaur. A DDR no.6 dated 29.10.2018 under Section 174 Cr.P.C. was registered at Police Post Kochhar Market, Police Station Division No.5, Ludhiana. At the request of the police, Civil Surgeon, Ludhiana constituted a board of senior doctors in order to ascertain the causes of death of Ramandeep Kaur. Civil Surgeon, Ludhiana constituted a board of senior doctors consisting of Dr. Sunil Katya, Professor and head (Anesthesia), DMC Hospital, Ludhiana, Dr. Neelam (M.S. Anesthesia), Civil Hospital, Ludhiana, Dr. Neeraj Sood, M.O. (ENT), Civil Hospital, Raikot, Dr. Harpreet Singh Bains, M.O. (Chest and TB), Civil Hospital, Ludhiana, Dr. Gurvinder Singh, M.O. (Forensic Medicine), Civil Hospital, Khanna. Dr. Balwinder Singh, Assistant Civil Surgeon, Ludhiana as well as Sh. Parvinder Pal Singh Sidhu, Civil Surgeon, Ludhiana also associated themselves in the inquiry. Board of doctors recorded statements of the complainant Charanjit Singh and opposite party doctors and opportunity for cross examination was also afforded to complainant No.1 Charanjit Singh. The complainant also suffered supplementary statement on 29.03.2019 and suffered a statement that he was not made aware of the facility of non-existing of ventilator at ESI Hospital and the factum of moderate risk has been scribed later on. The board of doctors also examined relevant record and gave their report Ex. C3. It was concluded by the board of doctors that on 09.10.2018 at about 10.40 AM, the decision was taken for sending Ramandeep Kaur in ICU care at CMC Hospital, Ludhiana and as per CMC hospital record, she was attended at 02.30 PM It was long time gap which was wasted in generating P form and for arranging pulse oxy meter and oxygen in the ambulance. This long time gap was most precious for such a serious patient which has been wasted in shifting patient from ESI Hospital to CMC Hospital.

16.              Primarily based upon the observation of report Ex. C3, the complainants have field the present complaint alleging that without support of ventilator, Ramandeep Kaur could not have been given a general anesthesia when the opposite party doctors were fully aware that the patient Ramandeep Kaur is a known case of bronchial asthma. However, in rejoinder(s) submitted to written statements of the opposite parties, the complainant for the first time stated that Ramandeep Kaur was administered excess amount of anesthesia which created complications to Ramandeep Kaur instantaneously. Further she was not provided with P form, pulse oxy meter and oxygen etc. within the required time and the said omissions, commissions and negligence of opposite party doctors have resulted into untimely death of Ramandeep Kaur.

17.              The point of consideration is whether the opposite parties were negligent in treating the patient Ramandeep Kaur on 09.10.2018 or thereafter  which ultimately led to her death on 29.10.2018.

18.              Legally speaking, Medical negligence is a breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skin resulting an injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient.

19.              Now adverting to the facts of the case in hand, Ramandeep Kaur was diagnosed of Nasal Polyp. As per medical science, Polyps are noncancerous (benign growth) farther back in the sinuses and removal of nasal polyp is known as nasal polypectomy. Nasal polyps happens most often in people with Asthma allergies repeated infections, inflammation in nasal passage. The Nasal Polyp can be treated with medications and if it does not shrink or eliminate the Nasal Polyp then Endoscopic surgery to remove the pulp and to correct the problem with sinus is carried out. In Endoscopic surgery, the surgeon inserts a narrow tube with a lighted magnifying lens or tiny camera (endoscope) in the nostrils and guides into sinus cavities and removes polyps and other substances that block the flow of fluids from your sinuses.

20.              Since Ramandeep Kaur deceased was a known case of bronchial asthma which appears to be the root cause for the diagnosis.  The opposite party doctors were fully aware with the past medical history of Ramandeep Kaur and she was advised surgery for removal of the Nasal Polyp. So the opposite party doctors followed a professionally acceptable practice in advising the surgery considering her medical condition and moderate risk involved therein.

21.              It can be borne out from the record that there was pre-anesthetic checkup on 01.10.2018 i.e. about eight days ago prior to conduct of operation. On the day of operation, relatives and family members of the patient were also present which shows that the complainant and his family members were fully aware of the moderate risk involved in the operation. The allegations of the complainant that the moderate risk has been scribed later on the consent form is devoid of any force.  Rather it implies that signatures on consent form were duly appended. So it cannot be said that there was no informed consent.

22.              It is a fact that the decision to refer Ramandeep Kaur to hospital of opposite party No.7 CMC Hospital at 10.40 AM in the operation theatre itself but she was never taken out of the operation theatre till pulse oxy meter, oxygen and other life supporting equipments were arranged in the ambulance. The operation theatre of opposite party No.1 hospital is well equipped and ventilators are available in the  in work station (anesthesia machine) used for anesthesia and major surgeries are usually performed. Dr. Swinder Singh Dhingra and Dr. Saroop Kaur accompanied Ramandeep Kaur  while shifting her to CMC Hospital in ambulance itself. All these facts were also appreciated by the board of doctors in the report Ex. C3. So it is evident that the patient was continuously being monitored by the opposite party doctors from the time of referral till the time of her admission in opposite party No.7 hospital. As such, it cannot be concluded that during the time gap reflected in papers, the patient was left unattended by the opposite party doctors.

23.              Board of doctors have also observed in the report that necessary medication was provided to the patient Ramandeep Kaur during the course of operation by the opposite  parties. There is no categorical finding in the report of board of doctors to the effect that anesthesia administered in excess of the required dose. It has also come on record that when the condition of the patient started deteriorating in the operation theatre before insertion of narrow tube in the nasal cavity, the services of medical and surgical specialist were requisitioned and availed. It shows that the treating doctors made all possible efforts and utilized available resources in order to improve the condition of the patient but ultimately when it did not happen to their expectations, they decided to shift the patient to a better equipped multispecialty hospital i.e. CMC Hospital, Ludhiana an empanelled hospital of ESI.

24.              A reference can be made to case titled as Jacob Mathew Vs State Of Punjab & Anr. 2005(2) Apex Court Judgments 136 (SC) whereby the Hon’ble Supreme Court of India summed up the law on medical negligence in the following words:-

“48. (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

(2) Negligence in the context of 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 considerations 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 a 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 or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

 

25.              Further reference can be made to case title Bombay Hospital & Medical Research Centre Vs Asha Jaiswal & others I (2022) CPJ 3 (SC) whereby the Hon’ble Supreme Court of India has held in paragraphs 32 and 34 of judgment, which is reproduced as under:-

32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam12, this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. This Court held as under:

“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the in- violable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta robanda as well as the facta probantia.”

34. Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others (2021) SCC Online SC 673  held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence.”

26.              Further, reference can also be made to the case title Dr. (Mrs.) Chandarani Akhouri and others Vs Dr. M.A. Methusethupathi & others in II (2022) CPJ 51 (SC) whereby it has been held by the Hon’ble Supreme Court of India in para No.27 of its judgment which is reproduced as under:-

27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable 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. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

 

By applying the ratio of above citations, the complainants have failed to prove medical negligence against the opposite parties conclusively.

27.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

28.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:31.01.2023.

Gobind Ram.

 

 

Charanjit Singh Vs ESI Hospital                                     CC/19/506

Present:       Sh. Rishi Dutta, Advocate for complainants.

                   Sh. Amandeep Malhotra, Advocate for OP2 to OP3, OP5 and OP6.

                   (Defense of OP1 to OP3, OP5 and OP6 already struck of vide order           dated 22.11.2021)

                   Sh. Vijay Kumar Gupta, Advocate for OP4.

                   Sh. Ravison Mattu, Advocate for P7.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

                

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:31.01.2023.

Gobind Ram.