Delhi

StateCommission

CC/10/67

MEENAKSHI JAIN ANDORS. - Complainant(s)

Versus

INDRAPARASTHA APOLLO HOSPITAL AND ORS. - Opp.Party(s)

27 Sep 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 27.09.2019

Date of Decision : 15.10.2019

 

Complaint No.67/2010

In the matter of :-

 

1. Meenakshi Jain,

D/o Late Shri Pawan Kumar Jain,

R/o J-206, Sarita Vihar,

New Delhi-110076.

 

2. Archna Jha,

D/o Late Sh. Pawan Kumar Jain,

R/o C-701, Sarita Vihar,

New Delhi-1100076.

 

3. Mrs. Pushpa Jain,

W/o of Late Sh. Pawan Kumar Jain,

R/o 28, Siddhartha Enclave,

New Delhi-110014. …........ Complainants

 

Versus

 

1. Indraprastha Apollo Hospital,

Mathura Road, Sarita Vihar,

New Delhi.

 

2. Dr. Saket Goel, Senior Consultant, Surgical
3.  

 

3. Dr. Vinayak Agarwal, Senior Consultant Cardiologist.

 

4. Dr. S. Wangnoo, Sr. Consultant Endocrinologist.

 

5. Dr. Rajesh Chawla, Sr. Consultant Respiratory Medicine.

 

6. Dr. Sanjeev Jasuja, Sr. Consultant Nephrologists.

 

7. Dr. S. Chatterjee, Sr. Consultant Physician.  ...............Respondents

 

Opposite parties No.2 to 7 are practicing in Indraprastha Apollo Hospital, Mathura Road, Sarita Vihar, New Delhi.

                                                                

CORAM

 

Sh. O. P. Gupta, Member (Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                                       Yes/No

2.      To be referred to the reporter or not?                                                                                                     Yes/No

 

Sh. O.P. Gupta, Member (Judicial)

Judgement

1. This order will dispose of application dated 24.07.2019 moved by OP-3 for return of the complaint as the case involves complicated questions of facts and law pertaining to forgery.  The contents of the application recites that complaint has been filed on the allegations that father of the complainants died due to alleged negligence on the part of OPs.  The complainants have made several allegations, amongst others, against the OPs pertaining to forgery and tampering of the medical records of the patient.  The complainants in para (g) at page-24 of the complaint started with subheading ‘tampering with the case records’.  In para (k) pages-17 to 19, the complaints made subheading ‘Deviation from Normal Standard Practice.  The note prepared by Dr. Ansari, doctor on duty in ICU on 30.03.2009 was in fact fabricated document made as such to cover up alleged negligence of not noting low haemoglobin of the patient.  In between notes of other doctors creates doubt and suspicion about its genuineness and appears to have been added later.  On internal page-10 of the complaint under the head ‘patient was in Septicemia’ on admission as mentioned Dr. Saket Goel on 07.03.2009, the complainants made following submissions:-

 

“Clearly, the patient was not in speticemia.The word septicemia has been added lateron (record manipulation to cover up negligence) by Dr. Saket Goel to make it appear that the patient was very serious ill on admission, which he was not”.

 

2. The complainant moved an application dated 30.05.2018 to bring on record material facts and documents as additional evidence allegedly suppressed by OPs.  In that application the complainants contended that OP-1 gave certain documents to I.O. in FIR No.182/13, PS-Sarita Vihar which was allegedly found to be forged by FSL and that she wished to rely on the same alongwith the charge-sheet which was pending consideration before Ld. MM. The application was allowed vide order dated 10.10.2018, it was noted by this Commission in the order allowing the application that effect of allowing the application would be

considered at the time of final decision.

 

3. The pleadings made by the complainants involve complicated facts involving allegations of forgery, manipulation of medical records, FSL report etc. which requires detailed trial by Civil Court involving cross-examination of complainants and FSL witnesses.  Hence, the same cannot be decided in summary proceedings under Consumer Protection Act.  In order to arrive on just decision, the proceedings would need to travel beyond  the nature of summary proceedings.  The current dispute has outgrown the nature of scope of summary proceedings as submissions as to forgery/tampering/ fabrication against all the OPs alongwith permission to rely to FSL reports alongwith charge-sheet have raised a need for an elaborate enquiry which may not be possible in this  Commission and would rather be more suitable for a Civil Court or another appropriate forum.  Hence, OP-3 prayed that complaint may be returned to the complainant for approaching Civil Court of appropriate jurisdiction as present case involves complicated issues requiring detailed evidence and cross examination of complainants/witnesses from FSL.

 

4. The complainants have filed reply dated 16.09.2019 to the aforesaid application.  They have raised preliminary objections that application is misconceived, unsustainable and is a gross abuse of the process of this Commission. OP-3 is in the habit of misleading the courts and present application is filed malafide  with ulterior motive to subvert the course of justice and attempt to stall and delay the proceedings which are at the stage of final arguments.  The judgement cited by OP-3 are not relevant to the complaint.  The complainants is entirely based on the attested medical record of the patient contained in two files (page-1 to 300 and 300 to 625) provided to the complainant by OP-1.  The expert medical opinion dated 14.06.2010 from Maulana Azad Medical College supports and proves medical negligence and deficiency in service on the part of OP-1 to 7.  On merits, they stated that OP-3 has no defence except the procured decision of Delhi Medical Council, which has been stayed by Hon’ble Supreme Court. OP-3 filed WS on 11.07.2011 wherein in such frivolous ground was taken.  They denied that OP-1 gave certain documents to I.O. which found to be forged by FSL or that the complainant wished to rely on the same alongwith charge-sheet.  The OPs will get the right to cross-examination of complainants and FSL witnesses when they would be summoned and tried as accused by the Ld. MM. Order dated 10.10.2018 allowing the application of the complainant has attend finality.

 

5. In order to appreciate the application under consideration, it is necessary to have a brief resume of the complaint.  The patient Late Sh. Pawan Kumar Jain, a 71 years was seen by OP-3/Cardiologist on 05.03.2009 who prescribed antinbiotics CIFRAN &  LINID in view of high (Total Leukocyte Count) TLC 25,500 and referred the patient to OP-2.  The patient was admitted on 06.03.2009 at 1:00 p.m. of OP under the care of OP-2 for emergency surgery for drainage of post-anal abscess.  In a non-cardiac surgery, all the vital cardiac medicines and antiplatelet drugs of the patient, which he was regularly taking for last four years, were completely and continuously discontinued for complete three weeks and that too, without cardiac monitoring, evaluation and supervision, which caused the death of the patient on 01.04.2009.  The patient died due to the gross, grave and reckless negligence, deficiency in service, inhumane treatment and total lack of standard care and skill on the part of OPs. OPs-1 to 7 miserably failed to act in accordance with the standard medical practice and had total and reckless disregard to the consequences.  The complainants were made to panic and were denied the right of second opinion by OPs-1 to 7 and hurriedly the consent was obtained for immediate surgery which was delayed for no plausible reason. The patient was shown to have been admitted at 6:15 p.m. on 06.03.2009 whereas the consent form was signed by OP-2 at 2:24 p.m. on 06.03.2009.  The consent for surgery could not be obtained without admission. The surgery was conducted on 07.03.2009 at 9:00 a.m. without any consent, muchless ‘informed consent’. Most of the notes of OP-3 have no time on them, which is against medical standard protocol of writing notes. The patient for the last 35 years had well controlled hypertension, had mid coronary artery disease for about three years for which he was under care of OP-3.

 

6. OP-1 filed WS denying various allegations made in the complaint. The complainant filed rejoinder to WS of OP-1.

 

7. OP-3 filed separate WS.  The complainants filed rejoinder to the said WS pointing out the contradictory stand taken by OP-3 in WP (C) 8607/10, reply before Delhi Medical Council filed on 28.01.2011, application u/s 151 Cr.PC filed in this Commission on 30.08.2011, impleadment application in Crl. Misc. Case 2504/11 before Delhi High Court dated 09.08.2011, WS in the present case.

 

8. OP-4 filed separate WS to which the complainants filed separate rejoinder.

 

9. Complainant filed evidence by affidavit. OPs filed evidence by affidavit.
10. OP-3 filed evidence by affidavit.  OP-4 filed evidence by affidavit.  OP-1 filed evidence of Dr. Ritu Rawat, Dy. DMS of OP-1.

 

11. OP-2 filed additional affidavit dated 10.01.2014.  he also filed copy of order dated 02.07.2012 passed by Hon’ble High Court in Crl. Misc. Case No.2504/11 filed by complainant. The complainant was aggrieved by order dated 28.07.2011 passed by Ld. MM vide which he directed DMC to expedite the hearing of the complaint No.780/10 and file the action taken report.  The complainant wanted directions to DMC to keep complaint No.780/10 in abeyance.  The petition was dismissed by Hon’ble High Court. The said order was challenged by the complainant before Hon’ble Supreme Court by way of SLP (Crl.) 6249/12 which was dismissed by Hon’ble Supreme Court vide order dated 27.08.2012 observing that Hon’ble High Court has observed that petitioner would have appropriate remedy after report of medical board submitted to the Ld. Magistrate.

 

12. Complainant filed written arguments relying upon the opinion of medical board stating that patient was operated on the morning on 07.03.2009 at 9:00 a.m. a delay of 20 hours from the time of admission. The medical board further opined that surgery should have been done at the earliest after the initial evaluation of all the concerned specialists. It also opined that Cardio Protective Medication discontinued prior to the surgery were not restarted after the surgery and that the indication of doing CAG are also not clear and that drastic fall in Hb was not timely corrected.

 

13. OP-3 filed written arguments.  OP-5 filed written arguments. OP-4 and 6 filed written arguments.  OP-7 filed written arguments.

 

14. In the meantime, complainants filed revision petition No.245/18 which was dismissed by Hon’ble High Court vide order dated 22.03.2018.  The same was challenged by complainants by way of LPA No.404/16 which was dismissed by Hon’ble High Court vide order dated 15.10.2018. The complainants have filed SLP (Civil) Diary No.4310/19 against the order of Division Bench of High Court in LPA No.404/16 (supra). This is still pending.

 

15. I have gone through the material on record and heard the arguments.  Counsel for OP submitted that bare perusal of the above facts shows that complainant has alleged fraud and forgery. Whatsoever little was missing, has been filled by complainant by moving application dated 30.05.2018 for bringing on record the material facts and documents as additional evidence suppressed by the OPs. The complainant pleaded in the said application that on 28.12.2010 OP-1 filed additional pages from 1 to 32 before DMC containing duplicate CAG report which was never provided to the complainant.  Even the alleged CD of CAG was never provided to the complainant. The FSL report dated 31.12.2015 clearly opines that data existing in Exhibit marked CD-1 was not found in the Exhibit Marked HDD-1. Thus, it has been conclusively proved by FSL report for the alleged CD filed by OP-1 is false and fabricated document.  The said CD was thereafter filed in this Commission. With a view to scuttle FSL report  dated 27.04.2016 of Jaideep Gupta, MD and Deepak Vats, Medical Officer of OP-1 given to the IO conclusively prove the false, forged and fabricated documents and electronic record by OP-1& 3 which are not part of the medical record and were never provided to the complainant or this Commission.  The same were provided to the police after more than seven years. The IO at the behest of the influential accused/OPs played a puppet at their hands and got the Medical Board constituted to shield the accused and to scuttle the opinion dated 14.06.2010 of Maulana Azaad Medical College.  OP-3 suppressed the fact that accused managed to get Dr. Jamal Yusuf appointed in the said board whose presence vitiates not only the decision of Delhi Medical Council but also opinion dated 06.06.2014.  The reply sought under RTI from Delhi Health Department shows that Dr. Jamal Yusuf was appointed in place of one Dr. Rajiv Narang appointed earlier, apparently at the behest of influential  accused/OPs. A Psychiatrist to be nominated by Chairman of the Committee was also appointed though it was not a case of  any psychiatric ailment.  The IO procured second medical opinion dated 06.06.2014.

 

16. OP-3 relied upon the decision of National Commission in Citymake Builders Pvt. Ltd. Vs. Samata  Sahakari Bank Ltd. 2012 SCC Online NCDRC 743 in which it was held that after going through the pleadings, complicated question of facts and law arise, complaint should be returned to the complainant to approach Civil Court or any other Forum.

 

17. OP-3 also relied upon the decision of National Commission in Safe Home Developers and Contractors Vs. Samata  Sahakari Bank Ltd. 2012 SCC Online NCDRC 742. In that case it was held that that when an opinion as to forgery is stated, an elaborate examination is required then in that case the proceedings cannot proceed summarily and therefore the Consumer Forum’s jurisdiction will be ousted.

 

18. For the foregoing reasons, the application of OP-3 is allowed.  The complaint is returned for presentation to Civil Court or other appropriate forum.  As matter of abundant precaution it is mentioned that complainant would be entitled to exclude the period spent in the present proceedings from limitation as per decision of Hon’ble Supreme  Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute 1995 (3) SCC 583.

 

19. Copy of the order be sent to all the parties free of cost.

 

20. One copy of the file be retained for record purpose.

 

 

(O.P. Gupta)

Member (Judicial)