BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.216 of 2018
Date of Instt. 16.05.2018
Date of Decision: 03.07.2018
Mr. Khazan Singh S/o Sh. Naranjan Singh R/o 9-Rishi Vihar, Majitha Road, Amritsar.
..........Complainant
Versus
1. Fortis Escort Hospital, Majitha Verka Bypass Road, Amritsar Through its Chairman/Managing Director/Medical Superintendent.
2. Dr. Pankaj Goel C/o Fortis Escort Hospital, Majitha Verka Bypass Road, Amritsar.
3. Dr. Arun K Chopra C/o Fortis Escort Hospital, Majitha Verka Bypass Road, Amritsar.
4. United Insurance Company Limited, Himalya House, 7th Floor, 38-B, JL Nehru Road, Kolkata-700071 Through its Branch Incharge.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. Deepinder Singh, Adv Counsel for the Complainant.
Sh. Jatinder Nagpal, Adv Counsel for the OP No.1 to 3.
Sh. Surinder Mohan, Adv Counsel for the OP No.4.
Order
Karnail Singh (President)
1. The instant complaint is received by transfer from District Forum, Amritsar.
2. Brief facts of the complaint are that the instant complaint filed by the complainant Khazan Singh, wherein alleged that he got gross negligent medical treatment from OPs and OPs boost itself to be best cardiac treatment providers and complainant took treatment from OPs for valuable consideration and complainant is competent to file the present complaint against the OPs. The complainant is consumer of the OPs as provided under the act and is competent to invoke the jurisdiction of this Forum.
3. The complainant got heaviness in his chest area and got himself examined at OP No.1 from OP No.2 on 10.12.2013, who advised Coronory Angiography and conducted the same on 11.12.2013 in the hospital of OP No.1 and given his report as the complainant was suffering from 'Triple Vessel Disease' and advised CABG (Bypass Surgery). On advise of aforesaid OP No.3, the complainant opt himself admitted in the hospital of OP No.1 on 15.12.2013 where OP No.2 conducted CABG on complainant, on 17.12.2013 and discharged the complainant from the hospital of OP No.1 on 23.12.2013 with the remarks 'That complainant is stable', meaning thereby that Artiery grafting done and complainant is not now suffering from Triple Vessel Disease.
4. That the complainant thereafter followed with OPs No.2 and 3 regularly as advised, but he was still having heaviness in his chest and again got severe pain on chest, on 08.03.2014, where again complainant approached the OPs and he was advised again angiography coronery and same was conducted on 12.03.2014 and was advised by OPs on 13.03.2014 with the remarks 'That the complainant has got native Triple Vessel Disease and advised PTCA'. The complainant when confronted OPs that they have already done CABG on 17.12.2013 and has declared that he has been cleared of Triple Vessel Disease and how he can again develop same disease after a period of three months on aforesaid Bypass Surgery. The OPs used very harsh and un-parliamentary language against complainant, which has no place in civil society and much less from doctors and as such a organization where patients are to be given comforts, but they showed such a disrespect and used foul language to complainant and shown him door instead of giving any explanation for reoccurring of Triple Vessel Disease within three months of conducting CABG by OPs. The aforesaid acts of the OPs in providing negligent medical treatment to complainant has caused lot of mental agony and financial loss to the complainant for which OPs are liable to pay compensation to the tune of Rs.12,00,000/-, to the complainant and accordingly, the instant complaint filed with the prayer that the OPs be directed to pay Rs.12,00,000/- to the complainant as damages and compensation for causing mental harassment and further OPs be directed to return the entire medical expenses amount paid by the complainant to the OPs at the time of treatment i.e. Rs.4,00,000/- with interest @ 18% per annum from the date of its payment till its actual realization and further OPs be directed to pay cost of litigation.
5. Notice of the complaint was given to the OPs and accordingly, OP No.1 to 3 appeared through its counsel and filed their separate reply. First of all OP No.1 took preliminary objections and contested the complaint that the complainant is not covered under the definition of 'Consumer' under the act and further alleged that the complaint is not maintainable either on facts or under the law against the replying OP. Since, no specific allegation has been levelled in the complaint against replying OP. The complainant is not entitled for any relief against replying OP No.1. That there has been no medical negligence, deficiency in service or lack of professional ethics by the replying OPs, instead the best possible treatment with due care was provided to the patient in this case. It is further averred that the present complaint is gross abuse of the process of this Forum as the complainant has not approached this Forum with clean hands. Various material facts have been concealed and distorted deliberately by the complainant just to pressurize and harass the replying OP No.1. The complainant has concealed material medical facts relating to the patient's condition. This is deliberate attempt to conceal vital information. Hence, the complainant's have not approached this Forum with clean hands, therefore, the complainant is not entitled for any relief. It is further alleged that there is no evidence worth its name to show that there is any negligence or deficiency or delay in service in the hands of the replying OPs during the course of treatment of the patient in the relevant time in OP No.1 Hospital, nor any act of deficiency or negligence or delay or omission or commission was conducted by the treating doctors, medico or para medico staff of the OP No.1 hospital during relevant times, the treatment was given by the treating doctors on standard medical jurisprudence adopting proper procedure as well as by qualified, experience and competent medical staff of OP No.1 hospital. It is further alleged that the process of 'Consumer Forum' cannot become a tool at the hands of unscrupulous persons, who filed complaint merely with a view to extract money in the garb of compensation. The mere oral and bald statement of the complainant that there was negligence or deficiency on the part of the replying OPs during the course of treatment of the patient in question, will not make replying OPs negligent on this regard. It is a settled law as well as requirement of equity that one who alleges must prove. The complainant cannot make this Forum to reach conclusion their way on the basis of distorted facts. It is further submitted that the present complaint is in fact filed, at the behest of certain vested interest, the complainant have filed the present complaint out of greed and lust for money and on account of the fact that certain cases have gone adverse to the medical professionals and that this complaint is alleged to be likely to meet the same fate and further alleged that mere absence of fruitful results or not succeeding in treatment gives no cause of action against the treating doctor or hospital. It is further alleged that the complainant has not mentioned in the complaint in what way replying OP was negligent while treating the said patient during relevant times, and how and what replying OP was supposed to do in that regard. Thus, complaint on vague allegations deserves to be dismissed and further averred that the complaint is bad for mis-joinder of parties. The replying OPs have been unnecessarily made party in the present complaint. Since, as per the allegations of the complainant in the complaint, the matter in dispute requires lengthy and detailed evidence/detailed trial to prove either way, the present matter cannot be disposed off in summary trial under the act ibid as the allegations are of complex and complicated nature, the matter can be tried by the Civil Court and further submitted that the Coronory Artery Disease has three type of treatments:- (a). Medical Management, (b). PCI: Percutaneous Coronary Intervention (c). CABG and accordingly, best treatment was given to the complainant and thus, there is no negligence on the part of the OP. On merits, the factum in regard to admission of the complainant and treatment given to the complainant is not denied rather the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.
6. The OP No.2 and 3 also filed their respective reply separately, who took the same preliminary objections as well as other pleas as taken by the OP No.1 and thus to avoid any repetition, we find there is no necessity to repeat the reply of the OP No.2 and 3.
7. OP No.4 appeared through its counsel and filed separate written reply and contested the complaint by taking preliminary objections that the OP No.4 has been impleaded in the present complaint at the instance of OP No.1 to 3 on the ground that they have obtained some Professional Indemnity Doctors Policy from OP No.4. Even otherwise this Forum cannot fix any direct liability qua OP No.4 because jurisdiction of this Forum is only to determine liability against OP No.1 to 3 and if any such liability is fixed, the same is to be considered by the competent authority of OP No.4 as per terms and conditions of the alleged policy. Moreover, as per said policies, there are certain deductions which are to be made and the liablity is to be considered as per said terms and conditions and sum insured under the particular policy. On merits, all the averments made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
8. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1 alongwith some documents Copy of the Discharge Summary consisting of 4 Pages dated 23.12.2013 as Ex.C-2, Copy of Discharge Summary consisting of 3 Pages dated 13.03.2014 Ex.C-3 and Copy of Angiography Report consisting of 3 pages as Ex.C-4 and then counsel for the complainant closed the evidence.
9. Similarly, counsel for the OP No.1 to 3 tendered into evidence affidavit of Dr. Arun Chopra as Ex.OP1,2,3/1, affidavit of Dr. Pankaj Goel as Ex.OP1,2,3/2 and affidavit of Aman Samuel as Ex.OP1,2,3/3 and further tendered into evidence File 1 Medical Record as Ex.OP1,2,3/4 consisting of 1 to 54 Pages, File 2 Medical Record as Ex.OP1,2,3/5 consisting of 1 to 151 Pages, File 3 Medical Record as Ex.OP1,2,3/6 consisting of 1 to 49 Pages and Medical Literature Ex.OP1,2,3/7 consisting of 1 to 27 Pages and then counsel for the OP No.1 to 3 further tendered affidavit of Dr. Pankaj Goel as Ex.OP1,2,3/8 and then closed the evidence.
10. Similarly, counsel for the OP No.4 tendered into evidence affidavit of Sh. Surinder Singh, Divisional Manager as Ex.OP4/1 and copy of insurance policy Ex.OP4/2 and then closed the evidence.
11. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the written arguments already placed on the file by all the counsel for the parties and also scanned the file very minutely.
12. The simple allegations of the complainant are that the complainant was having heaviness in chest area and thus, he got medically examined himself from the hospital of OP No.1, from OP No.2 on 10.12.2013, who advised Angiography, which was got done and copy of the Angiography Report is available on the file Ex.C-4 and thereafter, the complainant was admitted in the hospital on the ground that the Angiography Report shows the complainant is suffered from Triple Vessel Disease, which required CABG (Bypass Surgery) and accordingly, he was admitted and CABG was done by the OP No.2 on 17.12.2013 and therefore, the complainant was discharged on 23.12.2013, after giving a certificate that the complainant is stable and now he is not suffering from Triple Vessel Disease, but after conducting a CABG on 17.12.2013, the said disease was again developed within a period of 3 months of the date of CABG, which was got confirmed from the second medical examination of the complainant conducted by the OP No.2 and 3 on 12.03.2014 and again they got conducted Angiography on 13.03.2014. It is also alleged by the complainant that he is getting regular treatment from OP No.2 and 3 despite that the OP No.2 and 3 did not bother regarding development of the said disease again and as such, there is a negligence on the part of the OP for providing a medical treatment and claimed compensation of Rs.12,00,000/- as well as return of the treatment amount of Rs.4,00,000/- and litigation expenses. In support of his version, the complainant made reliance upon a pronouncement of Hon'ble Punjab State Commission, cited in 2018 (1) C.P.J. 142, titled as “Dr. G. S. Gill C/o Pragma Hospital, Bhatti Road, Bathinda Vs. Gurnam Singh S/o Sh. Gopal Singh R/o Village Raj Rana, Tehsil Sardulgarh, Distt. Mansa”.
13. On the other hand, the OP No.4/Insurance Company took a plea that this Forum cannot fix any direct liability qua OP No.4 because jurisdiction of this Forum is only to determine liability against OP No.1 to 3 and if any such liability is fixed, the same is to be considered by the competent authority of the OP No.4 as per terms and conditions of the alleged policy. So, accordingly this complaint is not maintainable against OP No.4.
14. Whereas OP No.1 to 3 took a plea that there is no negligence in providing a medical treatment to the complainant rather the best treatment was provided to the complainant and it was made aware to the complainant that this type of disease can be occurred again, regarding that the OP No.1 to 3 placed on the file Medical Literature as Ex.OP1,2,3/7, wherein categorically mentioned that the treatment given to the complainant i.e. Vein Graft Failure and Occlusion may be also according to Graft Quality, Target Vessel and Target Vessel Quality. A very small percentage of vein grafts may become blocked within the first two weeks after CABG surgery due to blood clotting. Blood clots form in the grafts usually because of small arteries beyond the insertion site of the graft causing sluggish blood run off. Another 10% of vein grafts close off between two weeks and one year after CABG surgery. Use of aspirin to thin the blood has been shown to reduce these later closings by 50%. The 50% grafts become narrowed after the first five years as cells stick to the inner lining and multiply, causing formation of scar tissue and actual atherosclerosis. After 10 years, only 2/3 of vein grafts are open and ½ of these have at least moderate narrowings. Internal mammary grafts have a much higher (90%) 10 year rate of remaining open. This difference is longevity has caused a shift in surgical practices toward greater use of internal mammary and other arteries as opposed to veins for bypasses. It has been shown that in CABG patients with elevated LDL cholesterol (bad cholesterol) levels, use of cholesterol-lowering medications to lower LDL levels to below 80 will significantly improve long-term graft patency as well as improve survival benefit and heart attack risk. Reasons for early graft failure, which is know aftermath are many, the most common being uncontrolled BP; or abnormal blood pressure, smoking, uncontrolled diabetics or blood sugar; irregular heart rhythms, fever after surgery; release of debris including bits or blood cells, tubing and plaques etc. The above said medical history has been explained to the complainant prior to conducting a CABG and thus, there is no negligence in providing medical treatment to the complainant, therefore, complainant is not entitled for any compensation or any other relief.
15. We have considered the case of both the parties and find that the OP has not denied regarding providing medical treatment to the complainant i.e. Bypass Surgery of the complainant has been conducted, which is known as CABG and it is also not denied by the OP that after three months, the complainant again come with the problem of chest pain and again Angiography was conducted and it was found that the orally graft failure and accordingly, the complainant was advised for further treatment regarding that two discharge summary have been placed on the file by the complainant, which are Ex.C-2 and Ex.C-3 and the same have been also produced on the file by the OP with a complete record of the treatment i.e. Discharge File Ex.OP-5 dated 15.12.2013 and Discharge file Ex.OP-6 dated 12.03.2014. It is not concealed by the OP No.1 to 3 that the said problem was again occurred to the complainant, but for that purpose, the plea taken by the OP No.1 to 3 is on the basis of Medical Literature produced on the file as Ex.OP1,2,3/7, the said Medical Literature is not contradicted by the complainant by producing any alternative Medical Literature. So, in the absence of any other Medical Literature, we are constrained to confine with this Medical Literature Ex.OP1,2,3/7 and as per said Medical Literature, there is a failure rate of small percentage of vein grafts become blocked within the first two weeks after CABG surgery due to blood clotting and other reasons and further an other 10% of vein grafts close off between two weeks and one year after CABG surgery and further 50% grafts become failure after 1-5 years as cells stick to the inner lining and multiply, causing formation of scar tissue. As per Medical Literature, there are chances of reoccurring of the said disease i.e. Triple Vessel Disease, which was treated by the OPs.
16. Now, we have to adjudge whether there is any negligence attributed to the doctors i.e. OP No.2 and 3, for that it is primary duty of the complainant to prove the medical negligence because simple averment in the complaint, is not sufficient to prove the medical negligence until the same is not supported by any cogent and convincing evidence, but in this case except the bald statement of the complainant, there is no other supporting evidence came on the file to prove that in what manner there is any negligence or deficiency in service on the part of the OPs. It is not the case of the complainant that the OP No.2 and 3 did not perform their duties with reasonable skill and competency nor the complainant challenged the skill competency as well as qualification of the doctors, if so then, the method chooses by the doctor for performing an operation cannot be put in a doubtful track of manner. So, accordingly, we conclude that the doctor did their professional duty as per their reasonable skill and competency.
17. Furthermore, the complainant has not examined any counter doctor to prove and establish that there is any negligence for providing a treatment on the part of the OP, if so then, we are of the considered opinion that there is no negligence on the part of the OP.
18. Further, we have considered the judgment of the learned counsel for the complainant (Supra) 2018 (1) C.P.J. 142, titled as “Dr. G. S. Gill C/o Pragma Hospital, Bhatti Road, Bathinda Vs. Gurnam Singh S/o Sh. Gopal Singh R/o Village Raj Rana, Tehsil Sardulgarh, Distt. Mansa” and find that in that judgment, the record of treatment including CD of angiography was not provided to the complainant by the hospital despite demanded through RTI Act, but the facts of this case are not similar to the facts of the aforesaid judgment and moreover, in this case, the complainant himself placed on the file report of the angiography Ex.C-4 and thus, the aforesaid judgment is not helpful to the complainant being not having an identical facts to the case in hand.
19. So, for the question of liability of OP No.4 is related. We find that the submission of the learned counsel for the OP No.4 is virtually a true and correct that this Forum is to determine liability against the OP No.1 to 3 in this complaint and directly we cannot fix any liability of the Insurance Company.
20. In the light of above detailed discussion, we find no merits in the case of the complainant, therefore, the complaint of the complainant is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.
21. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
03.07.2018 Member President
