Chandigarh

DF-I

CC/495/2020

Sh. Vikas Dureja - Complainant(s)

Versus

Fortis Healthcare Ltd. - Opp.Party(s)

Amarbir Dhaliwal

21 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/495/2020
Date of Institution	:	28/10/2020
Date of Decision	:	21/10/2024

 

 

1.   Vikas Dureja, S/o Late Sh. Sham Lal, R/o H.No. 402, Tower No.23. Royale Estate, Zirakpur, SAS Nagar Mohali (son of Late Sh. Sham Lal)

2.   Vishal Arora, S/o Late Sh. Sham Lal, R/o M025, DLF Capital Greens, Shivaji Marg, New Delhi-110015 (son of Late Sh. Sham Lal)

3. Sh. Amit Arora, S/o Late Sh. Sham Lal, R/o 2042, Sector-6, Urban Estate, Karnal, Haryana 132001(son of Late Sh. Sham Lal)

4. Smt. Sumitra Kumari W/o Late Sh. Sham Lal, R/o 2042, Sector-6, Urban Estate, Karnal, Haryana 132001 (Wife of Late Sh. Sham Lal)

5. Smt. Asha Kakkar W/o Bh. Surinder Kakkar R/o H.No. 458, BP Colony, Dr. Mukherjee Nagar, New Delhi-110009 (Daughter of Late Sh. Sham

6. Sh. Surinder Kakkar, son in law of Late Sh. Sham Lal, R/o H.No. 458, BP Colony, Dr. Mukherjee Nagar, New Delhi 110009(son in law of Late Sh. Sham Lal)

7. Smt. Manika Arora W/o Sh. Vishal Arora, R/o M025, DLF Capital Greens, Shivaji Marg, New Delhi 110015 (daughter in law of Late Sh. Sham Lal)

8. Smt. Richa Arora, W/o Sh. Amit Arora, R/o 2042, Sector-6, Urban Estate, Karnal, Haryana 132001 (daughter in law of Late Sh. Sham Lal)

 

9. Smt. Dolly Dureja, W/o Sh. Vikas Dureja, R/o H.No. 402, Tower No.83. Royale Estate, Zirakpur, SAS Nagar Mohali (daughter in law of Late Sh. Sham Lal)

10. Master Devansh Arora, S/o Sh. Vishal Arora, R/o M025, DLF Capital Greens, Shivaji Marg, New Delhi-110015 through his natural guardian Smt. Manika Arora (grandson of Late Sh. Sham Lal)

11. Ms. Nehal Arora, D/o Sh. Amit Arora, R/o 2042, Sector-6, Urban Estate, Karnal, Haryana 132001 through her natural guardian Smt. Richa Arora granddaughter of Late Sh. Sham Lal)

12. Master Guransh Arora, s/o Sh. Amit Arora, R/o 2042, Sector-6, Urban Estate, Karnal, Haryana 132001 through his natural guardian Smt. Richa Arora (grandson of Late Sh. Sham Lal)

13. Master Jagrit Dureja, S/o Sh. Vikas Dureja, R/o H.No. 402, Tower No. 23, Royale Estate, Zirakpur, SAS Nagar Mohali through his natural guardian Smt. Dolly Dureja (grandson of Late Sh. Sham Lal)

14. Master Kavish Dureja, S/o Sh. Vikas Dureja, R/o H.No. 402, Tower No. 23, Royale Estate, Zirakpur, SAS Nagar Mohali through his natural guardian Smt. Dolly Dureja (grandson of Late Sh. Sham Lal)

...Complainants

 

Versus

 

1. Fortis Healthcare Limited through its Director/Director/Chairman/AuthorizedSignatory/Authorized Person/Owner having its registered office at Sector-62 Phase-VIII, Mohali PB 160062 IN.

 

2. Medical Superintendent, Fortis Hospital, Sector-62 Phase-VIII, Mohali PB 160062 IN

3. Dr. J.D. Wig, Fortis Hospital, Sector-62 Phase-VIII, Mohali PB 160062 IN

4. Dr. Chitrang Bhargava, Fortis Hospital, Sector-62 Phase-VIII, Mohali PB 160062 IN

 

...Opposite Parties

 

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR SURESH KUMAR SARDANA	MEMBER MEMBER

                       

ARGUED BY	:	Ms. Prabhjot Kaur, Advocate proxy for Sh. Amarbir Dhaliwal, Advocate for complainants.
	:	Sh.Munish Kapila, Advocate for OPs.

Per SURESH KUMAR SARDANA, Member

     Briefly stated that the negligent act and conduct of the OPs led to the death of an otherwise healthy ex-army veteran aged 74 years husband of complainant No.4 after unnecessarily hospitalizing him for a prolonged period of 58 days so as to make illegal gains at the expense of the patient's life and feed their own nest. It is alleged that the patient was suffering from symptoms of vomiting and loose motions and was otherwise overall generally fit. However, he was referred to Cardiac Care Unit or CCU instead of referring him to a gastro expert straightaway, which however was eventually done after keeping the patient for 3 days in the CCU. The OP hospital and its team of doctors recommended irrelevant and unnecessary tests and reviews and concealed facts so as to find a reason to prolong the hospitalization of the patient and mint money. Though at the patient was showing healthy vitals and other parameters with mild dehydration etc., the patient was being pushed towards an extreme and radical measure of abdominal surgery even though the patient could have been treated with a more conservative treatment. Instead of sticking with the conservative treatment through steroids the OP No.3 pressurized the complainants to give their consent and falsely assured the complainants that it is an emergency situation and the surgery must be performed otherwise it may lead to death of the patient due to abdominal burst. Any risk of infection or bleeding, as it turns out, developed later, was not informed to the complainants. No alternative treatment was suggested or explained. No risks and pros and cons of the surgery were explained to the patient or the complainants. Thus there was a complete and utter disregard of the requirement of informed consent of the patient and his family before the surgery. It is alleged that the OP No.3 and OP No.4 kept a very casual and negligent approach towards the patient during post-surgical care. The OP No.3 did not take care of the patient post surgery and just wrote general scripted observations without regularly attending the patient and without addressing any problamatic observations observed on his irregular visits. For instance, even though the TLC count was on the rise due to increase in infection and was not being monitored regularly, no suggestions were made on how to treat it, which further led to bacterial and fungal infections in the patient's body. The spirometry exercises were started very soon on the third day after the first surgery even though the blood saturation levels were already normal. The exercise put a lot of pressure on the abdomen and eventually it led to bursting of the abdomen stitches and stoma of the patient which brought the patient to the brink of death due to high loss of blood. Thereafter, a second surgery was performed wherein the patient was given sutures with ryles tube and the same was also inserted at his stoma site. The use of ryles tube is not recommended as it is a foreign body with a high risk of infection. The said use of ryles tube was an experiment performed by OP No. 3 as admitted by him to the complainants No. 1 & 2 wherein the said tube was not medically manufactured or medicated for internal use. The use of such experimental procedures led to grave infection in the body of the patient. Thereafter on 29th June 2019, in a highly unprofessional and negligent manner, the OP No.3 plucked two stitches from the abdomen and also the ryles tube that was inserted at the time of second surgery, because of which the blood vessels which got attached with the said tube got ruptured and the patient started bleeding profusely for almost another 27 days which finally led to his death on 26th July 2019. The next day, due to excessive bleeding the Hb of the patient reduced but to the utter surprise and dismay of the complainants there was no general surgery doctor present in the premises and one of the doctors was sleeping on duty. The OP No.3 visited the patient after a huge delay even when he was informed immediately. Moreover when he visited the patient no advice was given nor was any action taken by him. The patient became critically ill due to excessive bleeding from three sites:- tracheostomy site, nasal pipe/ryles tube and the stoma. However the OPs did not provide any medicine or support to stop the bleeding. The complainants were running from pillar to post requesting the doctors to take concrete steps but no action was taken and only more blood was transfused. Finally, the patient due to prolonged and unnecessary hospitalization for 58 days and excessive bleeding and infection caused by sheer negligent acts of omissions and commissions of the OPs from the start as detailed in the complaint, passed away on 26th July 2019. Furthermore, in general, no protocols for hygiene or sanitation were followed in the medical ICU of the OP hospital which became a high source of infection. Such unhygienic/insanitary conditions has caused many unjustified deaths in MICU during the said period. There was further delay in treatment after the patient acquired infection in the medical ICU of the OP hospital. The fungal treatment started late and kept on continuing on account of keeping the patient on high cost medicines. The patient was shifted from isolation to ward without consent of the complainants and neglecting risks of infection to both the patient in question and the other patients in the ward. There is inadequate infrastructure for keeping patients in isolation which should not be the case for a super-speciality hospital. Furthermore, the patient was unnecessarily injected with tubes such as urinary catheter tube, flatus tube, use of Total Parenteral Nutrition or TPN C-13 on the very start which is suggested only on critically ill patients, general and un-medicated/unhygienic ryles tube during the second surgery etc. The whole 58 days of the hospitalization period leading to death of the patient has caused immense mental trauma, stress and grief to the patient's family. The Complainant No. 4 i.e. the wife of the patient has been suffering from mental trauma and depression due to the loss of her husband. Alleging the aforesaid negligent act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Parties  in their joint reply while admitting the factual matrix of the case stated that the patient was brought to the hospital in a state of low blood pressure, septic shock with volume depletion. He had multiple co-morbidities. He had chronic long standing, refractory Crohns disease along with its sequelae in the form of terminal ileum stenosis. It is denied that the patient was health before approaching the OPs. It is averred that Patient's family members including his son Vishal Arora were informed about the clinical status of the patient on telephone. Patient developed cardiac arrest and could not be resuscitated. He was declared dead at 2:09 AM and post death counseling was done. It is averred that the complainant has failed to show as to how the answering Opposite Parties including Opposite Party No. 3 have been negligent in any manner whatsoever. The complainant has failed to produce an iota of evidence or material on record to show that there has been any negligence whatsoever on the part of the Opposite Parties while advising or conducting surgical procedure or post operative care. The complainants have not produced any documentary evidence or expert evidence to prove that there was any negligence on part of Opposite Parties. In absence of any evidence to the said effect and there being no allegation in the entire complaint that there was any deviation from the acceptable and recognized medical practice or line of treatment by Opposite Party No. 3, complaint is liable to be dismissed on this short ground. It is settled law and as has been reiterated in case of C.V.S.R. Prasad Vs Sri Vasuda Nursing Home & Others 2007(3) CPR 283 (NC) by the Hon'ble National Commission that where medical negligence is being alleged it is incumbent on the complainant to give specific instances of the act of omission and commission on the part of the doctor and the hospital and onus of proof lies on the complainant. A perusal of the complaint clearly reveals that it has nowhere been stated as to what were the acts of omission and commission committed by Opposite Parties, which constituted negligence. In absence of such pleadings, the complaint deserves to be dismissed. It is averred that Dr. JD Wig is MS, FRCS and is duly skilled at performing surgical procedures. It has been held by the Hon'ble Supreme Court of India that a medical professional can be held guilty of negligence only if he did not possess 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 possesses. In the present case it is not the case of the Complainants that Opposite Party No. 3 did not possess the skill to conduct the surgery nor anything has been brought on record to show that Opposite Party No. 3 has not exercised the skill possessed by him.  All other allegations made in the complaint has been  denied being wrong.
3. Rejoinder was filed and averments made in the consumer complaint were reiterated.
4. Contesting parties led evidence by way of affidavits and documents.
5. We have heard the learned counsel for the contesting parties and gone through the record of the case.
6. The main grievance of the complainants is that the late husband of complainant No.4  was hospitalized unnecessarily by the OPs for a prolonged  period of 58 days so as to make illegal gains and complainants were pressurized to give their consent for  undergoing surgery. Moreover, no risk, pros and cons of the surgery were explained  either to the patient (since died) or to the complainants by the OPs. The complainants further alleged that OP No.3&4 kept very casual and negligent approach during post surgical care towards the patient which further led to bacterial fungal infections and led to the death of patient due to dealing of the case in a highly unprofessional & negligent manner by the OPs.
7. On perusal of record it is observed that the patient was admitted in  emergency  who had a past history of cerebral stroke (CVA) in 2007 and heart surgery (CABG) in 2013, long standing chronic obstructive pulmonary disease and Crohn’s disease.
8. As far as the allegation of the complainants that they   were pressurized to give their consent about the patient to undergo surgery, we are not constrained to believe this version to be correct as they have failed to adduce any such documentary evidence to this effect and right from the day one the doctors of the Hospital were in direct contact  with the complainants.
9. From the available records, it is observed that on 6.6.2019, patient’s son was given a copy of the undated clinical summary for a 2^nd opinion indicating of the fact that patient family was always kept aware of the patient’s condition.
10. We have perused note sheet of Dr. Arvind Sahni and Dr. J.D. Wing and the relevant  portion of Dr. Arvind Sahni noting which is reproduced as under:-

"I feel patient will need an EL and proceed for SAIO.

EL will be high risk as patient is immunosuppressive treatment. on

2. Secondary Sepsis will be a risk.

3. Stop Azathioprine and continue hydrocortisone.

4. Will discuss with Dr. Wig

5. Option of going to PGI Chandigarh/Medanta

given to patient's relatives"

 Similarly the relevant portion of daily progress note of Dr. JD Wing is reproduced as under:-

"Discussed with the patient's relatives last evening in the out- patients department:

1.Need for surgery -pain abdomen, abdominal distension, no passage of flatus. Plain X-ray abdomen showing air fluid levels.

2. Exact surgical procedure to be decided on the operation table after exploration ie. Resection small bowel or hemicolectomy.

3. Need for stoma formation-the risk of stoma explained.

4. Problem of associated co-morbidities.

5. Risks of anesthesia and surgical procedure.

6.Post-operative-recurrence of disease, adhesions, wound problem, stoma problems,

7. Financial aspects- to be decided by the IPD.

8. Given a choice of consultation with other hospitals.

9. Worried about cardiac problems- Dr Arun Kochhar to be consulted.

10. Timing of surgery after pre-anesthesia check up and clearance by various specialties.”

 

"Got a phone call from Bombay- Reliance hospital doctor. The whole aspect was discussed. He suggested for transfer to Bombay.

Got a phone call from patient's relatives at 10.30 PM. They have decided for surgery at Fortis hospital, Mohali. They were told that things will be set in motion like pre-anaesthesia checkup. Exact timing of operation to be decided after consultation with anaesthesiologists.”

 

11. From the above it is very clear that the patient’s relatives were given the option for going either to PGI or Medanta hospital but it was their decision to continue treatment further. Hence, the allegations of the complainants are not substantiated.
12. We are supported by the ratio of law laid down by the Hon’ble Supreme Court of India in Dr. Harish Kumar  Khurana Vs. Joginder Singh  &  Ors., Civil   Appeal   No. 7380  of  2009  decided  on 07.09.2021. Relevant part of the said order is reproduced hereunder:-

 “….To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception. In the instant case, apart from the allegations made by the claimants before the NCDRC both in the complaint and in the affidavit filed in the proceedings, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctors who, on their own behalf had explained their position relating to the medical process in their affidavit to explain there was no negligence ….”

13. Here we may also like to refer case titled as Dr.Laxman Balkrishna Joshi vs. Dr.Trimbark Babu Godbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, wherein, it was laid down by the Hon’ble Supreme Court that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the aforementioned case, the apex court interalia observed that negligence has many manifestations – it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence, or negligence per se. Black's Law Dictionary defines negligence per se as “conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of statute or valid Municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.” Thus, it has been made clear by the Hon’ble Supreme Court of India that a doctor owes to his patient certain duties of care in deciding whether to undertake the case and duty of care in the administration of that treatment and any breach thereof may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the present case, the OPs did not fail in their duties to take due care of the Complainant. 
14. Moreover, it is well settled legal position in medical negligence law that only expectation from a treating doctor is that whether he has discharged his duty of reasonable care and skill and treated the patient as per standard medical protocol and thereafter, irrespective of the consequence of such treatments the courts cannot hold the doctor guilty of any medical negligence solely on the basis of the outcome of such treatment. Record shows, the OPs No. No. 3&4 had given treatment to the deceased patient with all responsible skills and competence. In these conditions, no negligence can be attributed on the part of the OPs, unless certain practice or procedure by the doctor is proved by the Complainants which gives rise to an interpretation that the doctor was negligent in treating the patient.
15. In Devarakonda Surya Shesh Mani and Ors. Vs. Care Hospital, Institute of Medical Sciences and Ors., IV (2022) CPJ 7 (SC), the Hon’ble Supreme Court held that the mere allegations of medical negligence are not sufficient but the Complainant should prove it by positive evidence which leads to conclusion that the doctor failed in his duty towards the patient in a case of medical negligence.
16. Relying upon the aforesaid judgment of the Hon’ble Apex Court, we are of the view that the Complainants have not given ample evidence from which it may be concluded that any medical negligence has been committed by the OPs  No. 3&4 on the treatment of the patient, hence, to our mind it would be hypothetical assumption to form a view of lack of due medical care or that the Ops No. 3&4 were negligent to perform their duties or any treatment.   

 

17.      Before coming to a conclusion, it is necessary to mention here that the skill of a medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. The Hon’ble Apex Court in catena of cases has held that the Courts should be slow in attributing negligence on the part of a doctor, if he has performed his duties to the best of his ability and with due care and caution. The negligence must be established and not presumed. A bonafide mistake is excusable, but a mistake which would tantamount to negligence cannot be pardoned. If it is an error that such a man, acting with ordinary care might have made, then it is not negligence. Balom’s test, which is recognized in various pronouncements of Hon’ble Supreme Court, makes it clear that the medical practitioner must do his take with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. However, gross medical mistake will always result in finding of negligence and in some situations principle of Res ipsa loquitur can be applied. In Bolam Vs. Friern Hospital Management Committee, (1957) 1 WLR 582, it was held that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body or medical men skilled in that particular field.
18. In Martin F.D’Souza Vs. Mohd. Ishafq, I (2009) CPJ 32 (SC), the Hon’ble Supreme Court in Para 17 has held that: -

“Medical practitioner not liable for negligence simply because things went wrong from mischance/ misadventure through error of judgment and the medical practitioner would be liable only where his conduct fell below that of standards of reasonably competent practitioner in his field and simply because patient not favourable responded to the treatment given by doctor or surgery failed, doctor cannot be held straightaway liable for medical negligence by applying doctrine of Res ipsa loquitur.”

 

19.  Further, in Jacob Mathew Vs. State of Punjab & Anr., III (005) CPJ 9 (SC) 122, the Hon’ble Supreme Court realizing that doctors have to be protected from frivolous Complaints of medical negligence, laid down certain rules in Para 49 of its judgment:-

“49. (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.” 

 

 

20.      In Dr. (Mrs.) Chanda Rani Akhouri and Others Vs. Dr. M.A. Methusethupathi & Others, Civil Appeal No. 6507 of 2009 decided on 0.04.2022, the Hon’ble Supreme Court observed 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.”

 

 

21.      In Ms. Ins. Malhotra Vs. Dr. A. Kriplani & Others, II (2009) PJ 18 (SC), the Hon’ble Apex Court laid down principle for assessing negligence of a doctor. Relevant part of the judgment is extracted below:-

“Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional 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.” 

 

 

22.      In “Kusum Sharma Vs. Batra Hospital and Medical Research Centre”, 2010 (3) SCC 480, the Hon’ble Supreme Court held as under: -

 

 “……….As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence.”

 

23.      In “V. Kishan Rao Vs. Nikhil Super Speciality Hospital”, (2010) 5 SCC 513, , the Hon’ble Supreme Court held as under: -

 “47. In a case where negligence is evident, the principle of Res ipsa loquitur operates and the Complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the Respondent to prove that he has taken care and done his duty to repel the charge of negligence.”

 

 

24.      In the instant case, we do not find any concrete evidence available on record from which we can come to a conclusion that any medical negligence has been committed by the OPs No. 3&4 while treating the patient in the hospital. Whatever the treatment was provided to the deceased patient the same was as per the line of treatment prescribed under the medical norms.  

15. In these set of circumstances, it can safely be concluded that there has been no deficiency in service on the part of OPs  and the whole gamut of facts and circumstances leans towards the side of the Ops. The case is lame of strength and therefore, liable to be dismissed.

25.     Taking into consideration all the facts and circumstances of the case, we have no hesitation to hold that the Complainants have failed to prove that there has been any medical negligence on the part of the OPs. As such, the Complaint is devoid of any merit and the same is hereby dismissed, leaving the parties to bear their own costs.
26. Pending miscellaneous application(s), if any, also stands disposed off.
27.      Certified copies of this order be sent to the parties free of charge. The file be consigned.

			[Pawanjit Singh]
			President
			[Surjeet Kaur] Member
21/10/2024			[Suresh Kumar Sardana]
mp			Member