Chandigarh

StateCommission

CC/238/2019

Raghav - Complainant(s)

Versus

Governmental Medical College and Hospital - Opp.Party(s)

Anirudh Gupta, Preeti Kalia & Dhruv Gupta Adv.

21 Sep 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/238/2019
Date  of  Institution	:	22/10/2019
Date   of   Decision	:	21/09/2022

 

 

 

 

 

Raghav S/o Sh. Ashish Kumar, Resident of House No.1341, Sector 9, Ambala City, Haryana.

…. Complainant

 

Vs.

 

 

Government Medical College & Hospital, Sector 32, Chandigarh.

…… Opposite Party

 

 

BEFORE: JUSTICE RAJ SHEKHAR ATTRI   PRESIDENT

PADMA PANDEY                             MEMBER

                RAJESH K. ARYA                           MEMBER

 

PRESENT	:	Sh. Tushar Arora, Advocate for the Complainant.
	:	Sh. Rajinder Singh, Govt. Pleader for the Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

 

 

                In brief, the facts necessary for the disposal of the instant Consumer Complaint are, the Complainant alongwith his father was going towards Sadhora as a Pillion rider from Ambala City on motor cycle bearing registration number PB10BK 4900 which was being driven by the father of the complainant i.e. Ashish Kumar. The father of the complainant was driving at a moderate speed and on correct left hand side of the road and when they reached near Mithapur Bus Stand, a Sonalika Tractor coming from the opposite side being driven by Labh Singh in a very rash and negligent manner hit the motor cycle of the complainant which was driven by the father of the complainant. Thereafter the father of the complainant fell down on the Kucha Berm of the road and the complainant was run over by the rear tyres of the tractor which resulted in various injuries on the various body parts of the complainant and lower limbs was badly injured. The complainant was taken to the Civil Hospital, Ambala Cantt by his father and some other persons and from thereon the complainant was referred to the hospital of the OP i.e. GMCH Sector 32. The complainant was admitted to the hospital of the OP on 15.02.2016 and after a month of treatment the complainant was discharged on 07.03.2016. The total expenditure incurred by the complainant was of Rs.2 lacs approx for the above treatment. The doctors of the OP hospital were not able to control the fluid discharge of the complainant that was coming from the leg of the complainant. Moreover the doctors of the OP hospital performed a test namely D-Dimer test whose report was also positive which clearly showed that there was clot in the arteries of the complainant. The complainant was suffering from Pulmonary Embolism which means one or more arteries in the lungs are blocked by the blood clot that travel from legs or any other part of the body. The doctors kept on negligently delaying the surgery of the complainant and which resulted into more fluid discharge from the legs and the arteries were getting blocked. After seeing the careless attitude of the doctors of the OP hospital, the family members of the complainant got him discharged on 07.03.2016 after clearing all the dues of the OP hospital (admission & discharge book Annexure C-1). On 08.03.2016, the complainant was taken to the PGIMER and there he was diagnosed with fracture in ACETABULUM on right side, there was some inflicted wound in the left knee and some other injuries which were not taken care of by the OP hospital at the time when they were preparing for operating the complainant, but which was later on operated by PGIMER (PGIMER admission & discharge book Annexure C-2). Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Party, the Complainant has preferred the instant Consumer Complaint.

 

2.         Notice of the complaint was sent to Opposite Party seeking its version of the case. 

 

3.         Opposite Party filed written statement, inter alia, admitting the basic facts of the case. It has been pleaded that the Complainant was brought to emergency on 15.02.2016 at around 12.30 p.m. after being referred from Civil Hospital, Ambala following an alleged road side accident. The Complainant had suffered multiple injuries including multiple suspected fractures and was examined by the Doctors on duty from Surgery and Orthopaedics Department. The vital parameters of the Complainant, at presentation, were recorded in para no.2 of the preliminary submissions. After initial management as detailed in para no.3 of the preliminary submissions, the Complainant was admitted and kept under close observation. On 16.02.2016, the Complainant was planned for possible surgery of his limb fractures and implants were arranged. Though some of his parameters have improved, but he continued to remain unstable due to which he was not fit for surgery at that stage. Surgery was therefore deferred as it could cause further deterioration because of blood loss and various other intra-operative events. The Complainant was shifted to High Dependency Unit (HDU) with ventilator on standby for closer monitoring and further management. D-Dimer test was done and as per the test report it was positive. On 17.2.2016 myoglobinuria test was done and it was deranged. This further substantiated the poor and unstable general condition of the Complainant with renal derangement and coagulopathy. It was further pleaded that when the parameters of the Complainant improved pre-anaesthetic check up was done on 23.02.2016 for possible surgery on 24.02.2016. However as he still had persistent difficulty in breathing, pulmonary medicine and medicine consultation were taken. The Complainant was suspected to be suffering from deep vein thrombosis (DVT) with pulmonary embolism. He was started on treatment for DVT with blood thinning agents – low molecular weight heparin. D-Dimer test and CT angiography was done to confirm the diagnostics. CT confirmed that the Complainant had bilateral subsegmental thrombosis and bilateral lung consolidation. Therefore, the Complainant was continued on treatment for DVT. As the parameters and general conditions of the Complainant had improved, therefore, again surgery was planned on 2.3.2016. Accordingly, pulmonary consultation was taken and clearance for surgery by chest physician was given only for urgent life saving surgery in view of CT pulmonary angiography findings, which were explained to the Complainant and his attendant. When the condition of the Complainant improved then he was shifted from HDU to ward. Due to medicines for DVT, blood oozing from degloved skin injury increased which resulted in fall in Haemoglobin on 2.3.2016. The Complainant was given further blood transfusion 2 units on 3.3.2016 and 1 unit each on 4.3.2016 and 5.3.2016. When the condition of the Complainant was gradually improving then on 7.3.2016 he took discharge on request. Thus, it has been asserted that the Complainant was treated by the Opposite Party well in time and proper treatment was given to him by the doctors of the Opposite Party. Pleading that there was no deficiency in service or unfair trade practice on its part, a prayer has been made for dismissal of the complaint.

 

4.         Parties led evidence by way of affidavits and documents.

 

5.         We have heard the learned counsel for the Complainant and Ld. Govt. Pleader for the Opposite Party and gone through the record of the case, including the written arguments advanced on behalf of both the parties.

 

6.         After scanning of record, including written arguments, our findings are as under:-

 

7.         From the records, we observed that the Complainant was brought to the emergency of Govt. Medical College and Hospital, Sector 32, Chandigarh on 15.02.2016 at around 12:30 p.m. after being referred from Civil Hospital, Ambala following an alleged road side accident. The Complainant had suffered multiple injuries including multiple suspected fractures. The Complainant was given multiple blood transfusions and was put on supplementary oxygen by mask. Surgical consultation was taken to rule out injuries to solid organs. Dressings of limb wounds were also done. His left lower limp fractures were stabilized with above knee slab and traction. The patient was given necessary medicines and kept under observation. It is further observed that the Complainant was planned for possible surgery of his limb fractures and implants were arranged. But, his condition was unstable since his oxygen saturation remained low and his kidney functions were also showing some derangement. Therefore, the Opposite Party deferred the surgery and the patient was shifted to High Dependency Unit [HDU] with ventilator on standby for closer monitoring and further management.   The Opposite Party also maintained that D-Dimer test was done and as per the test report it was positive, which further substantiated the poor and unstable general condition of the Complainant with renal derangement and coagulopathy. Again, he was taken care of and his parameters gradually improved. The OP-Hospital contemplated a possible surgery on 24.02.2016, but the Complainant still had persistent difficulty in breathing and the Opposite Party was of the opinion that the Complainant was suspected to be suffering from Deep Vein Thrombosis [DVT] with pulmonary embolism for which effective treatment was given. Again, when the parameters and general conditions of the Complainant improved, surgery was planned on 02.03.2016. However, when pulmonary consultation was taken, clearance for surgery by chest physician was given only for urgent life saving surgery in view of C.T pulmonary angiography findings and the same was explained to the Complainant and his attendant. When the condition of the Complainant improved, he was shifted from HDU to ward where medication was given due to which the condition of the Complainant started improving gradually, but he took discharge on request on 07.03.2016 from the OP-Hospital.

 

8.         The Complainant after taking the discharge from the OP-Hospital on 07.03.2016 went to PGIMER, Chandigarh on 08.03.2016 where he was diagnosed with fracture in ACETABULUM on right side and there were some inflicted wound in the left knee and some other injuries, for which surgery was performed at PGIMER and the Complainant was discharged on 18.05.2016.

 

9.         It is the case of the Complainant that the Opposite Party kept on negligently delaying his surgery, which resulted into more fluid discharge from the legs and the arteries were getting blocked. A meticulous perusal of the record placed before us shows that the Opposite Party slated the surgery on three occasions, but could not perform the same due to unstable health parameters of the Complainant. To our mind any Doctor/Hospital would never take the risk of performing a surgery upon a patient whose parameters did not allow them to do so. In this case also, the oxygen saturation of the Complainant remained lower than the desired level and his kidney functions also showed some derangement and surgery if done, could lead to further deterioration because of blood loss and various other intra-operative events. Many a times during the admission of the Complainant in the Hospital the Complainant was put on ventilator. There was thus, no carelessness and negligence on the part of the doctors of the OP-Hospital. In fact, the Complainant had life threatening conditions which were adequately managed and taken care of by the Opposite Party.

 

10.         It is worthwhile to note that medical negligence can be attributed to a doctor or to a hospital only when they fail to do or carry out a treatment which they are supposed to do and not otherwise. In other words, a professional may be held liable for negligence on one of the two findings: either he is not possessed of the requisite skills, which he claims or he does not exercise, with reasonable competence in the given case, the skill which he possesses. 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. 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. In the instant case, aforesaid discussion goes a long way to prove that there was no element of medical negligence on the part of the Opposite Party.

 

11.         Furthermore, the complainant has led no evidence of experts to prove the alleged medical negligence except his own affidavit. A perusal of the medical record produced does not show any omission in the manner of treatment. The experts of different specialties were available to treat the course of treatment of the patient. There was never a stage when the Complainant was left unattended and thus, blame cannot be passed on to the Hospital and the Doctors who provided all possible treatment within their means and capacity.

 

12.         Needless to mention here that no doctor can assure life to his patient but can only attempt to treat his patient to the best of his ability, which was being done in the present case as well. Therefore, we do not find that the Hospital and the Doctors guilty of any negligence, much less medical negligence.
13.         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 ….”

14.         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 Opposite Party did not fail in its duty to take due care of the Complainant and rather, it acted very cautiously not to conduct surgery under unstable health parameters which might have further cost serious repercussions and even loss of life.

 

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

 

16.         Taking into consideration all the facts and circumstances of the case, we have no hesitation to hold that the Complainant has failed to prove that there has been any deficiency in service on the part of the Opposite Party. As such, the Complaint is devoid of any merit and the same is hereby dismissed, leaving the parties to bear their own costs.

 

17.         Certified copies of this order be sent to the parties, free of charge.

 

18.         The file be consigned to Record Room, after completion.

Pronounced

21^st Sept., 2022                                                   

Sd/-

                                                (RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

Sd/-

                                                        (PADMA PANDEY)

MEMBER

 

 

Sd/-

                                                        (RAJESH K. ARYA)

MEMBER

“Dutt”