Chandigarh

DF-I

CC/224/2023

AANCHAL SAINI - Complainant(s)

Versus

HOMEOPATHIC MEDICAL COLLEGE & HOSPITAL THROUGH ITS DIRECTOR/MEDICAL SUPERINTENDENT - Opp.Party(s)

19 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/224/2023
Date of Institution	:	1/5/2023
Date of Decision	:	19/7/2024

 

Aanchal Saini aged 31 years D/o Ashwani Kumar Saini R/o House No. 883/1, Sector 40-A, Chandigarh 160036

Complainant

Versus

 

1. Homeopathic Medical College & Hospital through its Director/Medical Superintendent, Sector 26. Chandigarh 160017

2. Director/Medical Superintendent, Homeopathic Medical College & Hospital, Sector 26. Chandigarh. 160017

3. Sri Guru Granth Sahib Sewa Society (Registered) Chandigarh - Tera hi Tera Mission Hospital through its President/Director/Medical Superintendent Homeopathic Medical College & Hospital, Sector 26, Chandigarh. 160017

4. President/Director/Medical Superintendent Sri Guru Granth Sahib Sewa Society (Registered) Chandigarh Tera hi Tera Mission Hospital O/o Homeopathic Medical College & Hospital, Sector 26, Chandigarh 160017

5.Dr Harsh Kumar, clinic address SCO 107, Sector 40-C. Chandigarh 160040,

6. Parveen Rani, Authorized Representative of Sri Guru Granth Sahib Sewa Society (Registered) Chandigarh Tera hi Tera Mission Hospital Homeopathic Medical College & Hospital, Sector 26, Chandigarh. 160017

 

...Opposite Parties

 

7. Dr Mitesh Bedi. Dr Bedi's Asthetic Cure, SCF 12, First Floor, Phase 11. Sector 65, Mohali 160055

 

Proforma Opposite Parties

 

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

                       

ARGUED BY	:	Sh. Navneet Jindal, Advocate for complainant.
	:	Ms. Jasdeep Kaur, Advocate for OPs.

Per SURESH KUMAR SARDANA, Member

     Briefly stated On 20.01.2023 the complainant visited the "Tera hi Tera Mission Hospital" of OP 1 to 4.  The doctor advised the laser operation which was further advised to be done at centre maintained by OP 1 to 4 in sector 26 where the formalities of the operations were to be done.  As per demand of the OPs the complainant paid an amount of Rs 50,000/-  to the OPs. The complainant was operated upon and at 9:15 AM she was shifted to ICU and after the surgery OP 5 left and the complainant was shifted to ICU under the supervision of the OP 6. As such no doctor was available at that time. A drip was affixed in her right hand and the parents were told to wait outside the centre as no one is allowed inside the ICU and it is only from morning 11:00 am to 12:00 P.M visitors were allowed. The parents of the complainant waited outside in the sitting area. The complainant gained consciousness after about half an hour. She was feeling pain and she called for help but there was nobody around. Since it was ICU, no one was allowed to come inside, she kept calling but no one was there to extend any help. At about 10:45 A.M she gained full consciousness and started crying in pain loudly. The mother of the complainant made hue and cry and reached inside the ICU with OP-6. On seeing the complainant in pain and it was found that her right hand turned black.OP-6 took out drip from her right hand and wrapped it with bandage giving false assurance that everything is fine. The mother of the complainant got scared on seeing the hand, She called father of the complainant who reached the spot and further called Dr Harsh, OP-5. As such there was no one available inside the ICU and no doctor was available to handle the medical emergency. OP-5 reached the ICU at about 3:00 PM and after seeing he disclosed that this is serious matter and he called Dr Mitesh Bedi, plastic surgeon. At about 6:00 PM Dr Mitesh Bedi reached and examined the complainant who further disclosed that it is case of "compartment syndrome right upper limb" and an emergency operation is to be conducted for the right hand to drain the fluid out, failing which the hand will have to be cut. Having no other option and time to have second opinion, the complainant and her family agreed to the said operation which was conducted by Dr. Mitesh Bedi, OP-7 and his team at about 11 P.M.. On 30.01.2023 the complainant was discharged and at the time of discharge, the expenses of the second operation was waived off and OP-6 after admitting the fault, gave in writing that they will bear the expenses related to hand which was to be done at the clinic of OP 5. The complainant followed up with OP 1 to 7 as advised. It is alleged that the complainant wanted to have non surgical treatment for her problem i.e. "fistula in ano with Pilonidal Sinus" that is the reason the laser treatment was preferred but the negligence of OP 1 to 6 has caused the complainant to suffer whereby the non professional, untrained staff has caused "Compartment Syndrome in her right hand" which was caused due to putting drip (cannula). The pain and suffering which the complainant wanted to avoid was caused due to negligence of OP 1 to 6. Even after passage of three months the hand is yet to be healed and the complainant even unable to hold a glass of water.  It is alleged due to the aforesaid negligence of the OPs No.  1 to 6 complainant has to undergo a lot of mental agony and harassment.  Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Parties their joint reply while admitting the factual matrix of the case stated that  the Ops are working on no profit and no loss basis and serve the public at large without getting any penny from them and if the patient voluntarily wants to pay the same is received. It is averred that the complaint is not maintainable as the complainant never raised any question qua the problem occurred during the treatment period or thereafter. The Operations conducted by the Ops were successful as admitted by the complainant. The problem occurred in the right hand of the complainant is not occurred due to the operation done by the O.P. No.5. It is also submitted here that when the O.P. No.7 was informed about the problem occurred in the right hand of the complainant, then the doctor on duty advised for the plastic surgery which was successfully performed by the O.P. No.7 and cured the same. This operation was done immediately and the O.P. No.7 did not charge anything even though he is not a duty doctor in the hospital of Opposite Parties No.1 to 4 (Society) and complainant was fully satisfied from the said treatment. Thus there is no  deficiency on the part of the OPs.  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 complainant is that after the surgery performed by doctor of OP No.1, the complainant suffered from “compartment syndrome” in her right hand, caused due to cannula due to non professional and untrained staff.
7. Before going further in the case we need to understand the definition of “Compartment Syndrome which is as under:-

“compartment syndrome:-

 Acute compartment syndrome is a serious condition that involves increased pressure in a muscle compartment. It can lead to muscle and nerve damage and problems with blood flow.”

8. However prior to scanning the evidence led by both the parties, it would be apposite to take note of the legal principle which would apply in the case of medical negligence and has been discussed by the Hon’ble Apex Court in various judgments.
9. The Hon’ble Apex Court in Jacob Mathew v. State of Punjab and Another, III (2005) CPJ 9(SC), dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution, but, there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if:

(a) either a person (doctor) did not possess the requisite skills which he professed to have possessed; or

(b) he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. The Hon’ble Apex Court held as under:

“48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”.

(2) 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. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

    xxx          xxx          xxx

(4) The test for determining medical negligence as laid down in Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586] holds good in its applicability in India.

         xxx          xxx          xxx

(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

 

1. The term “negligence” has been defined in Halsbury Laws of England (Fourth Edition) para 34 and as settled in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, I (2010) CPJ 29 (SC) as under:-

        “45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:

            22. Negligence.—Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

 

2. In para 89 of the judgment in the case of Kusum Sharma (supra), the tests of medical negligence while deciding whether the medical professional is guilty of medical negligence, varied tested principles have to be kept in view, the Hon’ble Apex Court held as under:-

“89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view:

1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring 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.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”

 

3. In Dr. Harish Kumar Khurana v. Joginder Singh and Others, (2021) 10 SCC 291, the Hon’ble Apex Court has held that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances. However, in an unfortunate case death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence.
4. Recently, the Hon’ble Apex Court has discussed and relied upon the aforesaid judgments in the case related to medical negligence in Chanda Rani Akhouri [Dr. (Mrs.)] & Ors. Vs. M.A. Methusethupathi [Dr.] & Ors., II (2022) CPJ 51 (SC) and has held 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.

28. The term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in the follow-up care, at any point of time by the treating doctors or anyone else, it is always open to be considered by the Courts/Commission taking note of the exposition of law laid down by this Court of which a detailed reference has been made and each case has to be examined on its own merits in accordance with law.”

10. On perusal  of the written version of Ops it is clear that the operation carried out by OP No.5  the doctor of OPs No.1&2  which was successful but due to untrained/non professional staff and due to their negligence the complainant suffered from the “compartment syndrome”  in her right hand due to cannula. This fact  is clearly established from the surgery carried out by the doctor OP No.7 of OPs No. 1 to 4 on the same night. 
11. On perusal of  Exhibit OP-12 (at page 76 of the reply of OPs ), it is observed that  the doctor of OPs No.1&2  noticed that the right hand of the patient had bluish decolouration. So cannula  was removed and on the same day the OP obtained the consent for the plastic surgery of right hand and it is also observed that plastic surgery was conducted on the same night which was successful
12. Though We are not inclined to hold liable any of the doctor  for the medical negligence but it is also a fact that 2^nd surgery was performed  on the complainant due to the problem suffered from cannula  which result in “compartment syndrome”.  Hence there is clear cut negligence on the part of staff of OPs No.1&2 while inserting the cannuala, which resulted in “compartment syndrome”.
13. The OPs  have taken stand that they have not charged anything from the complainant for the 2^nd surgery performed on the complainant but the hospital authorities i.e. OPs No.1&2  are definitely responsible for the pain and inconvenience suffered by the complainant due to cannuala fixation and they are liable to compensate the complainant for the said negligence.  
14. So far as the quantum of relief is concerned,  the Hon’ble Apex Court in the catena of judgments has laid down different methods to determine ‘just and adequate compensation’. In Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 the Hon’ble Apex Court held as under :-

    “The lack of uniformity and consistency in awarding compensation has been a matter of grave concern… If different Tribunals calculate compensation differently on the same facts, the claimant, the litigant, the common man will be confused, perplexed, and bewildered. If there is significant divergence among Tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system.”

         xxx          xxx          xxx

    “While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation.”

 

15. Further, the Hon’ble Apex Court in Malay Kumar Ganguly v. Sukumar Mukherjee and Ors., III (2009) CPJ 17 (SC), clearly mentioned that there were problems with using a strait-jacket formula for determining the quantum of compensation. It clarified about the basis of computing compensation under common law lies in the principle of ‘restitutio in integrum’ which refers to ensuring that the person seeking damages due to a wrong committed to him/her is in the position that he/she would have been had the wrong not been committed. Thus the victim needs to be compensated for financial loss, future medical expenses and any suffering endured by the victim. By no stretch of imagination, the award shall not a paltry sum for gross negligence. It was held that there is no restriction that Courts can award compensation only up to what is demanded by the complainant.
16. In view of the foregoing discussion, we determine “medical negligence” and “deficiency” on the part of OPs 1& 2 and in view of the peculiarity of the case and in order to meet the ends of justice, we are of the opinion that a lump sum amount of Rs.1,40,000/- would be just, fair and reasonable compensation.
17. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs 1&2 are directed as under :-

1. to pay lump sum amount of ₹1,40,000/- to the complainant alongwith interest @ 9% per annum from the date of institution of the present consumer complaint till onwards, as compensation on account of the medical negligence as well as for the mental and physical pain and trauma suffered by the complainant.
2. to pay ₹10,000/- to the complainants as costs of litigation.

 

 

 

18. .  This order be complied with by the OPs No.1&2 jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
19. Complaint qua rest of the OPs stands dismissed.
20. Pending miscellaneous application(s), if any, also stands disposed off.
21.      Certified copies of this order be sent to the parties free of charge. The file be consigned.

			sd/- [Pawanjit Singh]
			President
			Sd/-
			[Surjeet Kaur] Member   Sd/-
19/7/2024			[Suresh Kumar Sardana]
mp			Member