Haryana

StateCommission

A/698/2015

DR.M.R.MAKKAR - Complainant(s)

Versus

HEERA LAL - Opp.Party(s)

LOKESH SHARMA

24 Feb 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :     698 of 2015

Date of Institution:     26.08.2015

Date of Decision :     24.02.2016

 

1. Dr. M.R. Makkar, Makkar Hospital & Nursing Home, Narnaul.
2. Dr. Smt. Chander Kanta Makkar, Makkar Hospital & Nursing Home, near Sainik Rest House, Narnaul, District Mahendergarh.

                                      Appellants/Opposite Parties No.1 & 2

Versus

1.      Heera Lal s/o Sh. Hardev Singh, Caste Harijan (Chamar), Resident of Village Navdi, Tehsil Narnaul, District Mahendergarh, Haryana.

                                      Respondent/Complainant

2.      Dr. Hemant Kumar, Resident of Hemant Hospital, Mahendergarh Road, Narnaul.

3.      Dr. S.S. Sharma, Krishna Diagnostic Centre, Ultrasound, X-Ray and Laboratory, Mahavir Chowk, Mahendergarh Road, Narnaul, District Mahendergarh.

4.      The Oriental Insurance Company Limited, through Branch Manager, Mahendergarh Road, Narnaul, District Mahendergarh.

Respondents/Opposite Parties No.3 to 5

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

 

Argued by:          Shri Aditya Sanghi, Advocate for appellants.

                             Shri Mukesh Yadav, Advocate for respondent No.1.

                             Service of respondents No.2 to 4 dispensed with.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

           This appeal has been preferred against the order dated July 27^th, 2015, passed by District Consumer Disputes Redressal Forum,  Narnaul (for short ‘the District Forum’) in Consumer Complaint No.135 of 2005.

2.                Heera Lal-complainant (respondent No.1 herein), filed complaint under Section 12 of the Consumer Protection Act, 1986, with the allegations that his wife Santra Devi-since deceased (hereinafter referred to as ‘the patient’), was admitted in the hospital run by Dr. M.R. Makkar and Dr.(Mrs.) Chander Kanta Makkar-Opposite Parties No.1 & 2/appellants, on 18.04.2005 with complaint of abdominal pain. She was subjected to ultrasound and remained admitted till 21.04.2005. During these dour days, she was wrongly diagnosed as collection of fluid in the abdomen and was discharged stating that water had been removed and was prescribed medicines. She had growth in the uterus. The complainant has spent Rs.18,000/- on the treatment. The patient not getting any relief, was taken to Hemant Hospital, Narnaul on 26.04.2005, where Rs.9,000/- were charged for tests and ultrasound, however, was wrongly diagnosed. The patient was referred to Zenana Hospital, S.M.S. Medical College, Jaipur. The complainant also sought opinion from Getwell  Hospital at Narnaul who after ultrasound examination diagnosed that the patient had growth in the uterus and was referred to Zenana Hospital, S.M.S. Medical College, Jaipur. She was operated, however, on account of delay in diagnosis, the patient died. Thus, alleging medical negligence and deficiency in service on the part of the opposite parties, the complainant sought compensation of Rs.4,95,000/- on account of expenses incurred by him, alongwith interest @ 18% per annum from the date of filing complaint till its realization.

3.                Opposite Parties contested complaint. Opposite Parties No.1 and 2/appellants, in their joint reply stated that the patient was brought to their Nursing Home on 18.04.2005 in serious condition. On examination, it was found that she had a prolonged illness and was in critical condition. She had difficulty in breathing; her uterus was found swollen. On ultrasound, she was found having lot of fluid in abdomen and was found suffering from T.B. and cancer. Thus, denying any medical negligence and deficiency in service, it was prayed that the complaint be dismissed.

4.                Opposite Party No.3-Dr. Hemant Kumar, in his reply took plea that only tests were conducted by him. Same was the reply of Opposite Party No.4- Dr. S.S. Sharma.

5.                Opposite Party No.5-The Oriental Insurance Company Limited, in its reply though admitted to be the insurer of opposite parties No.1 and 2 but denied its liability to pay any compensation.

6.                On appraisal of the pleadings and evidence of the parties, the District Forum vide impugned order accepted complaint issuing directions as under:-

“…….the complaint of the complainant is hereby allowed with costs and opposite parties No.1 and 2 are directed:-

1.      To pay Rs.4,00,000/- (four Lacs) as compensation to the complainant along with interest at the rate of 10% per annum from the date of filing of the present complaint till realization.

2.      To pay Rs.2200/- as litigation charges to the complainant.

10.              Since the hospital of opposite parties No.1 and 2 is insured with the Oriental Insurance Company Ltd. i.e. opposite party No.5 to the extent of Rs.8,00,000/- vide insurance policy Ex.6/B, the insurance company i.e. opposite party No.5 is liable to pay the entire amount to the complainant.”

7.                While assailing the order of the District Forum, learned counsel for the appellants/opposite parties No.1 and 2, referred to the treatment record of the patient. A perusal of Indoor Ticket (Annexure A-6) shows that the patient was admitted on 18.04.2005 and was discharged on 21.04.2005. In the treatment chart, on 18.04.2005 itself, upon ultrasound examination, the patient was diagnosed suffering from T.B. and cancer. Therefore, there was no wrong diagnosis on the part of opposite parties No.1 and 2. In the treatment chart of the same day, it is mentioned that 4 liters of fluid was extracted and after removal of fluid, the patient was felling better. The treatment record Exhibit C-6 of S.M.S. Medical College, Jaipur, also indicates that the complainant was diagnosed the same disease. Therefore, it cannot be said that the opposite parties No.1 to 3, wrongly diagnosed or gave wrong report.

8.                What constitutes medical negligence, based on the touchstone of Bolam Vs. Friern Hospital Management Committee, (1957), 1 WLR, 582 (the Bolam’s test), is well settled through a catena of decisions of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1, Indian Medical Association Vs. V.P. Shantha and Ors., (1995) 6 SCC 651 and Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors. (2010) 3 SCC 480.  

9.                In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning observed that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

10.              In Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, (1996) 1 SCR 206, it has been held that if a doctor has adopted a practice that is considered “proper” by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong. 

11.              To determine the medical negligence, following principles have been determined to constitute medical negligence:-

(i)     Whether the treating doctor possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time;

(ii)     Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field.  

12.              In Jacob Mathew’s case (supra), elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury’s Laws of England (4^th Edn., Vol.30, para 35), as under:-

“35. The practitioner must bring to his task 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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way…”

13.              In the case in hand, Dr. G.N. Gupta, Pathologist was examined as CW-1. This witness in his cross-examination has stated that there was possibility of cancer to the patient. It was also stated that if fluid is found in the abdomen, the same may be due to T.B./cancer or lever failure.  Dr. Umesh Gupta (CW-2) in his statement stated that as per report, Dr. Vivek Aggarwal, had suspected cancer in the left ovary of the patient. It was admitted that there was no advanced lab in Narnaul for detecting T.B. or cancer and therefore after giving first aid, the patient was referred to the higher institute.

14.              The oral as well as documentary evidence produced on record does not make out it a case of medical negligence and deficiency in service. The judgment of Hon’ble Supreme Court in V. Kishan Rao versus Nikhil Super Specialty Hospital and another 2010(2) RCR (Civil) 929, relied upon by the District Forum is not applicable in the instant case in view of the credible evidence produced by the opposite parties.

15.              Having considered the facts and circumstances of the case and the evidence produced by the parties, the allegations of the complainant against the opposite parties have not been established. The District Forum fell in error in allowing the complaint and therefore the impugned order cannot sustain.

16.              For the reasons recorded above, the appeal is accepted, the impugned order is set aside and the complaint is dismissed.

 

 

Announce: 24.02.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL