Sh.Amrinder Singh Sidhu, President
1. The complainant has brought the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that Kuljit Kaur wife of the complainant was admitted in Rajiv Hospital, Moga on 10.06.2017 for delivery purpose. Three issues were born on 10.06.2017. Concerned Authority of Rajiv Hospital, Moga sent these issues to Garg Hospital, Zira Road, Moga without the consent of complainant on 10.06.2017. The complainant was told after one hour that the children are weak, so it is necessary to send them in Garg Hospital, Zira Road, for medical treatment. When complainant came to know about the said fact, he rushed to Garg Hospital, Zira Road, Moga. The complainant noticed that proper medical treatment was not provided to the children as required. At night the condition became more critical and physical condition of children became worst. Then the complainant requested to Dr. Ram Sethi who was incharge and handling the said case that the complainant was not satisfied with the treatment provided by them, but the then Dr. Ram Sethi has mis-behaved with the complainant and proper diagnose was not provided to the children. On the next date i.e. 11.06.2017 in the early morning, the condition of the children became more critical due to negligence at Garg Hospital. The opposite parties charged Rs.76,608/- from the complainant illegally, unjustly and in violation of rules and turned out the complainant as well as children. When the complainant told the hospital staff that your diagnose is not proper and opposite parties charges are in excess, then Dr. Ram Sethi told that if complainant does not bear these expenses then they will not discharge the children. The complainant was threatened that in case he did not make the payment, they will call the police as they are influential persons. Thereafter, the complainant has to admit children in the hospital at Suresh Nursing Home, Akalsar Road, Moga. The services rendered by the opposite parties are deficient one. They have not done proper diagnose and they have also charges the abovesaid amount in excess to the rates as provided. Due to the aforesaid acts and conduct and deficiency in service on the part of the Opposite Parties, the Complainant has suffered mental tension, harassment as well as financial loss. Vide instant complaint, the complainant has sought the following reliefs.
- To direct the Opposite Party to refund a sum of Rs.76,608/- received by the opposite parties and to pay a sum of Rs.2,00,000/- on account of compensation, damages, mental tension and deficient services, to the complainant.
- Or any other relief to which this Commission may deem fit and proper be also granted.
Hence, this complaint.
2. Upon notice, opposite party no.1 & 2 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that this is not a case of medical negligence, but a case where complainant does not want to pay after getting the dramatic result during the night by benefitting from Insure Technique used for life threatening lung immaturity causing oxygen de-saturation in room air; that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law and has been filed without any justified reason/cause against the answering opposite parties just to harass, defame and extort illegal sum of money from the answering opposite parties; that no specific, scientific and justified allegation in regard to negligence or deficiency in providing services has been made by the complainant against the answering opposite parties and the complainant has miserably ailed to explain the cause of action against the answering opposite parties; that the complainant has filed this complaint with false allegations of negligence to this Commission by claiming exorbitant amounts without any basis, just to waste the valuable time, harass and defame the answering opposite parties; that no cause of action arose against the answering opposite parties in this case, nor negligence of deficiency in services has been provided by the answering opposite parties to the patient while providing the said services in question. It is further submitted that Dr. Ram Sethi was called by the Gynaecologist of Rajiv Hospital during and after delivery of babies all babies were resuscitated. During emergency to save life, no consent is required. All three babies had life threatening lack of oxygen due to immaturity of the lung, but one of the baby did not cry and was cyanosed and this baby was intubated immediately and was taken on bag and mask ventilation. Thus, anyhow all the three babies were revived. Other two babies cried immediately, but had difficulty in breathing with a silveman score of about 8. All the babies were premature and their condition was critical with life threatening oxygen de-saturation due to lung immaturity and were shifted to Garg Hospital after duly proper information and oral consent of the father of the babies. All the three babies were shifted to the Garg Hospital in the ambulance of Garg Hospital. During transport babies were accompanied by Dr. Ram Sethi and the trained staff of Garg Hospital. The complainant came to the hospital alongwith the babies in the Garg Hospital's ambulance in a critical condition and life threatening de-saturation of oxygen if kept off the oxygen supply. Babies were admitted in hospital at 11 pm on 10.06.2017 in very life threatening critical condition and they were not able to maintain oxygen saturation in room air. All the three babies were given surfactant separately by Insure technique and then each baby was put on non-invasive mode of ventilator support without which none of the three babies would have survived. Each baby required surfactant, which was given by Dr. Ram Sethi after showing the separate three vials, one for each to be used for three babies separately and the same were shown to the father of the babies. Father had no money at that time in spite of that all babies were managed. Dr. Ram Sethi was present in the NICU for the whole night to take care of three very critical and sick babies with help of NICU staff without which the three babies would not have survived. Dr. Ram Sethi was present in the NICU for the whole night for the treatment and the condition of all three babies improved dramatically in the morning. All the three babies were maintaining saturation in room air and general condition of babies became dramatically better in one night. Next morning since all three babies were alright and the complainant did not want to pay the bill therefore asked for LAMA discharge for all the three babies. Everything has done diligently by opposite party no.1 & 2, prudently with utmost due care and caution in treating the said patient. There was no negligence at least from their side. In this case, the applicants filed an application for directing the complainant for supply the copies of the medical record of Suresh Nursing Home, Moga because in the present case the complainant has not submitted the above refer Medical record in the court when he filed the present complaint. The abovesaid medical record produced by the complainant lateron but from the above referred medical record there is no medical negligence. The answering opposite parties also filed an application for supply the copy of opinion given by Medical Board constituted by this Commission as records medical of children of complainant which is still pending as before admitted the present complaint this Commission did not obtained the opinion from Medical Board which is required under the law. On merits, it is submitted that where the delivery took place the doctor there had called opposite party no.2 since they expected triplets were going to deliver and definitely all of them will need paediatric care, hence Dr. Ram Sethi was called by the Gynaecologist of Rajiv Hospital during delivery and after delivery of babies. It is true that babies were going to be born weak and need help of a qualified children's doctor hence Dr. Ram Sethi was called by the Gynaecologist of Rajiv Hospital during delivery and after delivery of babies, all babies were resuscitated. During emergency to save the life, no consent was required. All three babies had life threatening lack of oxygen due to immaturity of the lung, but one of the baby did not cry and was cyanosed and this baby was intubated immediately and was taken on bag and mask ventilation. Thus anyhow all three babies were revived. Other two babies cried immediately but had difficulty in breathing with a Silverman Score of about 8. All the babies were premature and their condition was critical with life threatening oxygen de-saturation due to lung immaturity and was shifted to Garg Hospital after duly, proper information and oral consent of father of the babies. All the three babies were shifted to Garg Hospital. During transport babies were accompanied by Dr. Ram Sethi and the trained staff of Garg Hospital. It has been further submitted that Dr. Ram Sethi was present in the NICU for the whole night to take care of three very critical and sick babies with the help of NICU staff without which the three babies would not have survived. Dr. Ram Sethi was present in the NICU for the whole night for the treatment and the condition of all three babies improved dramatically in the morning. All the three babies were maintaining saturation in room air and general condition of babies became dramatically better in one night. Next morning since all three babies were alright and the complainant did not want to pay the bill therefore asked for LAMA discharge for all the three babies. But he was asked to clear all the dues mainly of Surfactant and CPAP circuits, he started creating false allegation that only one vial was open and given to all three babies. Answering opposite parties demanded the payment of three vials, then the patient party threatened the hospital staff to call the mob to ransack the hospital. At that time the opposite parties showed him all three vials which were used in the night and all the 3 CPAP circuits were attached to the babies. At this point he started creating nuisance and mis-behaved with the owner of the hospital Mr. Padam Sain, who is 80 year old and with Dr. Ram Sethi and other staffs of Garg Hospital. So, it is not the treatment from which he was dissatisfied, it is the complainant's ill intention to cheat the hospital to take the babies without paying the bills. All the charges were displayed at Garg Hospital reception and the respective wards. All the expenses were explained to the complainant in the presence of referring gynaecologist to the father beforehand prior to the shifting the babies to the Garg Hospital. Three discharge cards for three babies were handed over to the complainant which clearly mentioned the diagnosis of each bay and condition of the babies at the time of admission and at the time of discharge, which shows that the condition of babies was much better at the time of discharge. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with special costs has been made.
3. Opposite party no.3 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objection therein inter alia that the complaint is not maintainable; that the complainant has got no locus standi to file the complaint against the answering opposite party; that no cause of action arose to the complainant against the answering opposite party; that the complainant is not a consumer of answering opposite party, therefore, the complainant cannot file the complaint against the answering opposite party; that complaint is bad for non-joinder and mis-joinder of necessary parties. Rajiv Hospital and its concerned officials who sent the issues (newly born children) to Garg Hospital without the consent of the complainant are necessary parties; that Opposite party no.1 & 2 did not comply with the provisions of the AML policy of the answering opposite party no.3; that there is no deficiency in service on the part of answering opposite party; that voluminous evidence is required in this complaint, so the Consumer Commission has got no jurisdiction to try the complaint. The civil court has got jurisdiction to try such complaints. Thus, the complaint is not maintainable. On merits, all other allegations made in the complaint have been denied and a prayer for dismissal of the complaint has been made.
4. In his bid to prove the case, the complainant tendered into evidence his duly sworn affidavit Ex.C1 in support of the allegations made in the complaint and also produced copy of documents Ex.C2 to Ex.C23 and closed the evidence.
5. On the other hand, to rebut the evidence of the complainant, the Opposite Parties No.1 and 2 tendered into evidence affidavit of Dr. Sandeep Garg, Ex.OP-1,2/1, affidavit of Dr. Ram Sethi Ex.OP-1,2/2 and copies of documents Ex.OP-1,2/3 to Ex.OP-1,2/6 and closed the evidence. Whereas, opposite party no.3 tendered into evidence affidavit of Sh.Jasvinder Singh, Senior Divisional Manager Ex.OP-3/1 and copy of Doctors Policy Schedule Ex.OP-3/2 and closed the evidence.
6. We have heard the ld. counsel for the parties and have carefully gone through the written arguments filed by all the Parties as well as evidence on record.
7. During the course of arguments ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that
Kuljit Kaur wife of the complainant was admitted in Rajiv Hospital, Moga on 10.06.2017 for delivery purpose and three issues were born on 10.06.2017. Further contended that Concerned Authority of Rajiv Hospital, Moga sent these issues to Garg Hospital, Zira Road, Moga without the consent of complainant on 10.06.2017. The complainant was told after one hour that the children are weak, so it is necessary to send them in Garg Hospital, Zira Road, for medical treatment. When complainant came to know about the said fact, he rushed to Garg Hospital, Zira Road, Moga. The complainant noticed that proper medical treatment was not provided to the children as required. At night the condition became more critical and physical condition of children became worst. Then the complainant requested to Dr. Ram Sethi who was incharge and handling the said case that the complainant was not satisfied with the treatment provided by them, but the then Dr. Ram Sethi has mis-behaved with the complainant and proper diagnose was not provided to the children. On the next date i.e. 11.06.2017 in the early morning, the condition of the children became more critical due to negligence at Garg Hospital. Further contended that the opposite parties charged Rs.76,608/- from the complainant illegally, unjustly and in violation of rules and turned out the complainant as well as children. When the complainant told the hospital staff that your diagnose is not proper and opposite parties charges are in excess, then Dr. Ram Sethi told that if complainant does not bear these expenses then they will not discharge the children. The complainant was threatened that in case he did not make the payment, they will call the police as they are influential persons. Thereafter, the complainant has to admit children in the hospital at Suresh Nursing Home, Akalsar Road, Moga. The services rendered by the opposite parties are deficient one as the Opposite Parties have not done proper diagnose and they have also charges the abovesaid amount in excess to the rates as provided. Due to the aforesaid acts and conduct and deficiency in service on the part of the Opposite Parties, the Complainant has suffered mental tension, harassment as well as financial loss.
8. On the other hand, ld.counsel for the Opposite Parties have repelled the aforesaid contention of the ld.counsel for the Complainant on the ground that it is not a case of medical negligence, but a case where the Complainant does not want to pay after getting the dramatic result during the night by benefitting from INSURE technique used for life threatening lung immaturity causing oxygen de-saturation in room air. Moreover, Opposite Party No.1 is insured with The Oriental Insurance Company Ltd. Through professional Indemnity Policy of M/s.Garg Hospital & Super Speciality Centre vide policy No. 272200/48/2017/5471 effective from 11/06/2016 to 10/06/2017 and Opposite Party No. 2 Dr.Ram Sethi through its Professional Indemnity Policy Vide policy No. 27200/48/2017/24686 effective from 04.03.2017 to 03.03.2018. Ld.counsel for Opposite Parties No.1 and 2 contended that Dr.Ram Sethi Opposite Party No. 2 was called by the Gynaecologist of Rajiv Hospital during delivery and after delivery of babies and after the delivery of the babies all babies were resuscitated and during the emergency to save life, no consent is required. All the three babies had life threatening lack of oxygen due to immaturity of the lung, but one of the baby did’t cry and was cyanosed and this baby was intubated immediate and was taken on bag and mask ventilation, whereas other two babies cried immediately, but had difficulty in breathing with a Silveman Score of about 8. All the babies were premature and their condition was critical with life threatening oxygen de-saturation due to lung immaturity and were shifted to the Garg hospital after duly, proper information and oral consent of the father of the babies. All the three babies were shifted to the Garg Hospital in the ambulance of Garg Hospital and the Complainant came to the hospital alongwith the babies in the Garg Hospital ambulance, in a critical condition and there was chances of life threatening de-saturation of oxygen if kept off the oxygen supply. The babies were admitted in hospital at 11 PM on 10.06.2017 in a very life threatening critical condition and they were not able to maintain oxygen saturation in room. The babies were put on non invasive made of ventilator support without which none of the three babies would have survived. Each baby required surfactant, which was given by Opposite Party No. 2 after showing the separate three vials, one for each to be used for three babies separately and the same were shown to the father of the babies. Opposite Party No. 2 was present in the NICU for the whole night for the treatment and the condition of all the three babies improved dramatically in the morning. Next morning since all three babies were alright and the Complainant did not want to pay the bill, therefore, asked for LAMA discharge for all the three babies, but he asked to clear all the dues mainly of Surfactant and CPAP circuits, he started creating false allegation that only one vial was open and given to all three babies. However, the Opposite Parties showed him all three vials which were used during the night and all the 3 CPAP circuits were attached to the babies. The discharge card for three babies were handed over to the Complainant which clearly mentioned the diagnosis of each baby and condition of the babies at the time of admission an at the time of discharge. Further contended that everything was done diligently, prudently, with utmost due care and caution in treating all the three babies and there is no negligence, deficiency of service or unfair trade practice and hence prays for dismissal of the complaint.
9. Ld.counsel for Opposite Party No.3 also contended that admittedly, Opposite Party No. 2 is insured with them vide policy Ex.OP3/2, but there no negligence on the part of Opposite Party No. 2 proved on the record. In the complaint, it is not specifically mentioned to whom the Complainant has made the payment either to Garg Hospital or to Rajiv Hospital. Opposite Party No. 2 has no role to play in receiving the payment and he is not liable to pay any amount, therefore Opposite Party No.3 is not liable to pay any compensation and hence, the complaint against Opposite Party No.3 deserves dismissal.
10. The case of the Complainant is that his wife Kuljit Kaur was admitted in Rajiv Hospital, Moga on 10.06.2017 for delivery purpose. Three issues were born on 10.06.2017. Concerned Authority of Rajiv Hospital, Moga sent these issues to Garg Hospital, Zira Road, Moga without the consent of complainant on 10.06.2017 and he was told after one hour that the children are weak, so it is necessary to send them in Garg Hospital, Zira Road, for medical treatment. When complainant came to know about the said fact, he rushed to Garg Hospital, Zira Road, Moga. The complainant noticed that proper medical treatment was not provided to the children as required. At night the condition became more critical and physical condition of children became worst. Then the complainant requested to Dr. Ram Sethi who was incharge and handling the said case that the complainant was not satisfied with the treatment provided by them, but the then Dr. Ram Sethi has mis-behaved with the complainant and proper diagnose was not provided to the children. On the next date i.e. 11.06.2017 in the early morning, the condition of the children became more critical due to negligence at Garg Hospital. The opposite parties charged Rs.76,608/- from the complainant illegally, unjustly and in violation of rules and turned out the complainant as well as children. On the other hand, ld.counsel for Opposite Parties No.1 and 2 argued that the babies were difficulty in breathing with a silveman score of about 8 and since all the babies were premature and their condition was critical with life threatening oxygen de-saturation due to lung immaturity and were shifted to Garg Hospital after duly proper information and oral consent of the father of the babies. But perusal of the record shows that no written consent was ever obtained by Opposite Parties No.1 and 2 from the Complainant before admitting the babies in their hospital, whereas Consent is a legal requirement of medical practice and not a procedural formality. Getting a mere signature on a form is no consent. If a patient is rushed into signing consent, without giving sufficient information, the consent may be invalid, despite the signature. Often medical professionals either ignore or are ignorant of the requirements of a valid consent and its legal implications. Instances where either consent was not taken or when an invalid consent was obtained have been a subject matter of judicial scrutiny in several medical malpractice cases. This article highlights the essential principles of consent and the Indian law related to it along with some citations, so that medical practitioners are not only able to safeguard themselves against litigations and unnecessary harassment but can act rightfully. Hon’ble Karnatka High Court at Bangalore, in case titled as Dr Ramcharan Thiagarajan Facs vs Medical Council Of India on 3 April, 2014 has also held as under:-
“The doctor before performing any procedure must obtain patient's consent.[
11. In the instant case, when the Complainant was not ready to shift his babies to some another hospital i.e. Opposite Parties No.1 and 2 which is not the child hospital, then what was the hurry for Rajiv Hospital as well as for Garg Hospital Opposite Parties No.1 and 2 to admit the babies of the Complainant without any consent. Second contention of the Complainant is that when he told the hospital staff that your diagnose is not proper and opposite parties charges are in excess, then Dr. Ram Sethi told that if complainant does not bear these expenses then they will not discharge the children. The complainant was threatened that in case he did not make the payment, they will call the police as they are influential persons. Thereafter, the complainant has to admit children in the hospital at Suresh Nursing Home, Akalsar Road, Moga and under the compelling circumstances, he had paid the exorbitant amount of Rs.76,608/- to the Opposite Parties No.1 and 2 for admission of his babies in the hospital of Opposite Parties No.1 and 2 admittedly for one day i.e. 10.06.2017 (11 PM) to 11.06.2017 which appears very excessive which is allegedly only for giving oxygen and giving for vials. The intention of Opposite Parties No.1 and 2 also shows from Discharge Card Ex.C4 in which the treating doctor has specifically ticked against the Result LAMA (means Leaving against Medical Advice), on the other hand, on the patient history of Ex.C5, the same doctor has mentioned that baby need further NICU care but parents of baby want to take their bay to another hospital. Then, how it can be said that the Complainant has taken his babies in LAMA and in this way, to prove its versions, Opposite Parties No.1 and 2 are blowing hot and cold in same breath and forgotten that he has already given in writing to the complainant something else. Moreover, no human being will ever leave the present treating hospital in LAMA on the stake of life of his newly born babies, if he feels that the treating doctor is giving best treatment to his babies and rather he only leave the present hospital, when he feels that the present treating hospital is not giving proper treatment and due care to his wards and when he feels no faith upon the treating doctor/ hospital.
12. Furthermore, perusal of the record shows that except, affidavit of Dr.Sandeep Garg Ex.P1,2/1, affidavit of Dr.Ram Sethi Ex.OP1,2/2, copies of polices Ex.OP1,2/3 and Ex.OP1,2/4 and medical Paediatrics Ex.OP1,2/5 and Ex.OP1,2/6, no other medical treatment of patient (babies) is placed on record. It is highly unfathomable that such a reputed doctor will not keep the record of treatment given to his patients. The medical records are the best evidences for doctors to prove their innocence, as such Opposite Parties No.1 and 2 for the reasons best known to them has withheld the medical record from the court scrutiny. In view of the law laid down in Dr.N.J.Karnavat-Petitioner Vs. Patel Ishwarlal Mangalal & Ors.-Respondents 2015(1) CPJ 161 (NC) it has been held that it is very important for the treating doctor to properly document the management of a patient under his care. Medical records form an important part of the management of a patient, to decide the issue of allegedly medical negligence. The legal system relies mainly on documentary evidence, particularly in a situation, where, medical negligence is alleged by the patient or the relatives. In an accusation of negligence, this is very often the most important evidence deciding on the sentencing or acquittal of the doctor. Since, Opposite Parties No.1 and 2 have not produced any of its medical record to prove the averments given in their reply as such bald statement of the Opposite Partiesy that he has treated the complainant as per standard procedure cannot be accepted. Hence, we feel that there is definitely deficiency in service on the part of Opposite Parties No.1 and 2 by not treating the babies of the Complainant properly and moreover for charging in excessive and for admitting the babies of the Complainant without his consent hurriedly as mentioned above. For this, the Complainant must be compensated in this account.
13. Perusal of the copies of the bills Ex.C6 to Ex.C11 shows that out of total paid up amount of Rs.76,608/- and out of which Rs. 48,108/- are paid against medicine purchased and remaining Rs.28,500/- are appears to be charged exorbitant against rooms charges, doctor visits, nursing charges, monitor charges, consultation charges, consumable/ disposal charges, oxygen charges etc. only for one day i.e. i.e. 10.06.2017 (11 PM) to 11.06.2017 which are very excessive besides Rs.48,108/- charged for medicines.
14. Resultantly, in view of the aforesaid facts and circumstances of the case, the complaint of the complainant is partly allowed and the Opposite Parties No.1 and 2 are jointly and severally directed to make the compensation of Rs.28,500/- (Rupees twenty eight thousands five hundred only) as detailed above to the Complainant within 45 days from the date of receipt of copies of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this District Consumer Commission. However, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs.Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
15. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Faridkot and furthermore due to non-sitting of this District Commission virtually for a long period due to pandemic of COVID-19.
Announced in Open Commission.
Dated: 14.09.2021.
