Punjab

Nawanshahr

CC/35/2016

Baljit Kaur - Complainant(s)

Versus

IVY Hospital - Opp.Party(s)

Gurcharan Singh

02 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHAHEED BHAGAT SINGH NAGAR. 

 

Consumer Complaint No    :   35 of 2016

Date of Institution                         :   07.04.2016 

Date of Decision                 :   02.04.2018

1. Baljit Kaur D/o Som Nath
2. Manjit Singh S/o Som Nath, All R/o Mohalla Navi Abadi, Musapur Road, Nawanshahr, Tehsil Nawanshahr, District SBS Nagar.

                                                          ….Complainants

Versus

1. Ivy Hospital, Chandigarh Road, Nawanshahr, through Manager.
2. Dr. Himani Singh, Consultant Radiologist, C/o Ivy Hospital, Chandigarh Road, Nawanshahr.

Opposite parties

Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:         

S.A.P.S. RAJPUT, PRESIDENT

S.KANWALJEET SINGH, MEMBER

COUNSEL FOR THE PARTIES

For Complainants                   :         Sh.Gurcharan Singh, Advocate

For OPs                         :         Sh.K.P.S. Shergil, Advocate

 

ORDER 

PER S.KANWALJEET SINGH, MEMBER

1. This complaint filed by complainants under Section 12 of the Consumer Protection Act.  Further, it is averred that complainant No.1 is daughter and complainant No.2 is son of deceased Gurmit Kaur.  On 05.10.2014, Gurmeet Kaur W/o Som Nath was brought to Civil Hospital at about 5:45 AM as she suddenly became unconscious.  The attending doctor of Civil Hospital namely Madan Lal gave some medicines to Gurmit Kaur and thereafter told the complainants that the Civil Hospital has no basic amenities due to shifting of hospital location and asked them to got conduct C.T. Scan of brain of Gurmeet Kaur from OP-1 without providing proper treatment to her and he called ambulance from OP-1.  OP-1 sent ambulance, but the driver of the same insisted for depositing fees of ambulance first and also insisted to pay the fees of oxygen, otherwise he will not allow to use the oxygen mask to Gurmit Kaur.  Then complainants paid the same to OP-1.  Even after reaching hospital, Gurmit Kaur was not attended by doctors of OP-1, inspite of her critical conditions and wasted about one hour to conduct her CT Scan on the Ultra hyper technical formalities.  Thereafter, CT scan was conducted by employee of OP-1 in the absence of supervision of any doctor and thereafter asked complainants that the report of the same be available on the next day as the concerned doctor was on leave due to Sunday.  In the meantime, the condition of Gurmit Kaur became more critical and she was immediately rushed to Civil Hospital and after reaching the hospital the doctors of Civil Hospital declared her dead.  Gurmit Kaur died due to lack of staff, infrastructure of OPs and Civil Hospital.  The OP-1 intentionally conducted CT scan of Gurmit Kaur without having the availability of concerned doctor and OP-2 provided report of CT scan on 15.10.2014, but intentionally mentioned the date as 05.10.2014 on the report but as a matter of fact on that day OP-2 was not present in the hospital and inspite of this OP-2 authorized the staff to conduct the CT scan of patients in absence of OP-2 and other doctor.  If the CT scan conducted promptly and report of the same immediately provided to complainants and proper treatment has to be provided to her by the doctors, then she could definitely survive today.  Gurmit Kaur died due to the rash and negligence act of OPs and Civil Hospital and due to deficiency in services rendered by OPs to complainant and Gurmit Kaur.  Due to death of Gurmit Kaur complainant suffered great mental, monetary and physical loss and also deprived from the natural assistance, love and affection of Gurmit Kaur.  It is also submitted that Som Nath husband of Gurmit Kaur was handicapped and Gurmit Kaur sued to run the vegetable shop for livelihood of the family. Som Nath also died due to shock of death of Gurmit Kaur after few months of her death.  Both complainants were unmarried at that time were fully dependent upon Gurmit Kaur.    Lastly prayer has been made that OPs be directed to pay compensation of Rs.15,00,000/- on account of death of Gurmit Kaur occurred due to rash, negligent act of OPs.  It is further prayed that OPs be directed to pay costs of Rs.10,000/- to complainant.    
2. Notice of the complaint was given to the OPs and OP No.2 was failed to appear despite service and ultimately was proceeded against ex pate on 17.06.2016.  OP No.2 has filed an appeal before Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh against said order.  On 06.10.2016, appeal of OP-2 was dismissed.  Then OP-2 approached Hon’ble National Commission against order dated 06.10.2016 passed by Hon’ble State Commission, Punjab Chandigarh. The Hon’ble National Commissioner has allowed the RP No.3244 of 2017 of OP-2 and set aside ex parte order on 14.02.2017.  Thereafter, OP-2 has joined the proceedings of this Forum.  Accordingly OPs appeared through counsel and filed separate written statement.  OP-1 contested the complaint by taking preliminary objections that complaint is not maintainable.  OP No.1 is renowned hospital and best of the facilities have been provided in IVY Hospital.  OP-1 has engaged best qualified staff for providing best treatment and there is no challenge to qualification and competence of the concerned member of staff.  This complaint is flagrant abuse of process of law and has been filed in order to harass, malign the reputation and blackmail answering OP-1. Complainant has failed to produce an iota of evidence or any material on record to show that there has been any negligence on the part of OP-1 while treating complainant.  Moreover, as per contents of complaint, the patient was treated at Civil Hospital, SBS Nagar over which the answering OP had no control.  Complainant has filed this complaint with false allegation of negligence just to waste precious time in order to extort money from answering OP.  Complaint is bad for non-joinder of necessary parties.  No cause of action has accrued to complainant. On merits, it is submitted that procedure adopted by OP-1 was in accordance with the high standards set by the medical council and was adopted keeping in mind the high ethics of the medical fraternity.  Experienced and well qualified staff is always available at the hospital premises for rendering their professional services to the patients.  Rest of the averments have been denied by answering OP and prayed for dismissal of the present complaint with costs.
3. Similarly, OP-2 also filed written reply whereby she taken same preliminary objection as taken by OP-1.  On merits, it submitted that it being Sunday the answering party was at emergency call basis which is the regular practice followed by all renowned hospitals and is also approved by medical council of India and as per this practice the staff is put at standby even on day offs if there is an emergency situation the staff could be called urgently and same procedure was adopted by that very day and answering OP-2 was instantly called upon by hospital for the preparation of CT scan report of the patient the averment that she was absent on the said day is denied. It is also submitted that job profile of OP-2 is to persue the CT scan of the patient and make the report of the same and her presence is not required when the scan is to be done but she is required to make the necessary comments and findings on CT scan after its perusal and the same was done by answering OP with utmost care and professionalism, the averment that answering OP gave the report on 15.10.2014 while the date on the report was mentioned as 05.10.2014 is vehemently denied the correct fact is that it was told to the persons accompanying the patient that preparation of the CT scan report will take a little of 45 to 60 minutes meanwhile the health of the patient is deteriorating so they should take her to the concerned doctor meanwhile the report is being prepared and specifically asked by OP-2 that report should be collected immediately after the lapse of the said time but it is also submitted that nobody turned out to collect the report from OP-2 and the same was collected by the kin of the patient on 15.10.2014 and thus this statement by complainant is a well conceived tactic by complainant to turn the scales of justice in its own favour and blackmailing OP-2 into paying compensation to it.   It is prayed that complaint is liable to be dismissed with costs.
4. In order to prove complaint, counsel for the complainant, tender into evidence affidavit of Manjit Singh complainant Ex.CW1/A, affidavit of Gurmail Chand Ex.CW1/B, copy of bill dated 05.10.2014 Ex.C-1, copy of bill dated 05.10.2014 Ex.C-2, copy of CT Scan Report Ex.C-3, copy of death certificate of Gurmit Kaur Ex.C-4, copy of complaint to DC, SBS Nagar Ex.C-5, copy of legal notice Ex.C-6, copy of postal receipt Ex.C-7, copy of ration card Ex.C-8, reply of notice dated 12.12.2014 Ex.C-9, acknowledgement Ex.C-10 & Ex.C-11, news cutting mark-A and closed the evidence on behalf of complainants.  Similarly, counsel for OP-1 has tendered into evidence affidavit of Ajay Sharma Ex.OP1/A alongwith documents Ex.OP1/1 & Ex.OP1/2 and further tendered bill Ex.OP1/3, copy of policy Ex.OP1/4 and then closed the evidence.  Similarly, counsel for OP-2 has tendered into evidence affidavit of Dr.Himani Singh Ex.OP2/A alongwith photocopies of documents Ex.OP2/1 to Ex.OP2/5 and close the evidence.
5. We have heard the learned counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of learned counsel for the parties.
6. Learned counsel for complainant has argued that on 05.10.2014, Gurmeet Kaur W/o Som Nath was brought to Civil Hospital at about 5:45 AM as she suddenly became unconscious.  The attending doctor of Civil Hospital namely Madan Lal gave some medicines to Gurmit Kaur and thereafter told the complainants that the Civil Hospital has no basic amenities due to shifting of hospital location and asked them to got conduct C.T. Scan of brain of Gurmeet Kaur from OP-1 without providing proper treatment to her and he called ambulance from OP-1.  OP-1 sent ambulance, but the driver of the same insisted for depositing fees of ambulance first and also insisted to pay the fees of oxygen, otherwise he will not allow to use the oxygen mask to Gurmit Kaur.  Then complainants paid the same to OP-1.  Even after reaching hospital, Gurmit Kaur was not attended by doctors of OP-1, inspite of her critical conditions and wasted about one hour to conduct her CT Scan on the Ultra hyper technical formalities.  Thereafter CT scan was conducted by employee of OP-1 in the absence of supervision of any doctor and thereafter asked complainants that the report of the same be available on the next day as the concerned doctor was on leave due to Sunday.  In the meantime the condition of Gurmit Kaur became more critical and she was immediately rushed to Civil Hospital and after reaching the hospital the doctors of Civil Hospital declared her dead.  Gurmit Kaur died due to lack of staff, infrastructure of OPs and Civil Hospital.  The OP-1 intentionally conducted CT scan of Gurmit Kaur-deceased without having the availability of concerned doctor and OP-2 provided report of CT scan on 15.10.2014, intentionally mentioned the date as 05.10.2014 on the report but in fact on that date OP-2 was not present in the hospital and inspite of this OP-2 authorized the staff to conduct the CT scan of patients in absence of OP-2 and other doctor.  If the CT scan conducted promptly and report of the same immediately provided to complainants and proper treatment has to be provided to her by the doctors, then she could definitely survive today.  Gurmit Kaur died due to the rash and negligence act of OPs and Civil Hospital and due to deficiency in services rendered by OPs to complainant and Gurmit Kaur.  Due to death of Gurmit Kaur complainant suffered great mental, monetary and physical loss and also deprived from the natural assistance, love and affection of Gurmit Kaur.  It is also submitted that Som Nath husband of Gurmit Kaur was handicapped and Gurmit Kaur sued to run the vegetable shop for livelihood of the family. Som Nath also died due to shock of death of Gurmit Kaur after few months of her death.  Both complainants were unmarried at that time were fully dependent upon Gurmit Kaur.  As such, OPs are deficient in rendering services to complainant and Gurmit Kaur and prayed for relief claim.
7. On the other hand learned counsel for OPs has argued that complainant has failed to produce an iota of evidence or any material on record to show that there has been any negligence on the part of OP-1 while treating complainant.  Moreover, as per contents of complaint, the patient was treated at Civil Hospital, SBS Nagar over which the OPs had no control  and prayed for dismissal of the present complaint with costs. 
8. Learned counsel for OPs has also argued on behalf of OP-2 that being Sunday on 05.10.2014 Dr.Himani Singh – OP-2 was available at emergency call basis which is the regular practice followed by all renowned hospitals and is also approved by Medical Council of India and as per this practice the staff is put at standby even on day offs if there is an emergency situation the staff could be called urgently and same procedure was adopted by them on that very day and OP-2 was instantly called upon by hospital for the preparation of CT scan report of the patient the averment that OP-2 was absent on the that date is denied.  It is also submitted that job profile of OP-2 is to peruse the CT scan of the patient and make the report of the same and her presence is not required when the scan is to be done but OP-2 is required to make the necessary comments and findings on CT scan after its perusal and the same was done by OP-2 with utmost care and professionalism, the OP No.2 gave the report on 15.10.2014 while the date on the report was mentioned as 05.10.2014 is vehemently denied the correct fact is that it was told to the persons accompanying the patient that preparation of the CT scan report will take a little of 45 to 60 minutes meanwhile the health of the patient is deteriorating so they should take her to the concerned doctor meanwhile the report is being prepared and specifically asked by OP-2 that report should be collected immediately after the lapse of the said time but it is also submitted that nobody turned out to collect the report from OP-2 and the same was collected by the kin of the patient on 15.10.2014 and also prayed for dismissal of complaint qua OP-2.
9. We carefully examined the documents placed on by complainant from Ex.C-1 to Ex.C-11 and similarly to rebut the evidence of complainant, counsel for OPs has placed on record affidavit of Ajay Sharma Ex.OP1/A, documents Ex.OP1/1 to Ex.OP1/4 and then produced affidavit of Dr.Himani Singh as Ex.OP2/A alongwith photocopies of documents Ex.OP2/1 to Ex.OP2/5. The utmost document is Ex.C-2 = Ex.OP1/3 in which the complainant deposited emergency charges of Rs.600/- and CT Scan Brain Plain Charges of Rs.1600/- on dated 05.10.2014 to OP-1.  It is crystal clear from Parawise reply of Para No.2 -  Ex.OP-1/A and Ex.OP2/A that staff called on emergency basis on holiday (Sunday).  It has also supported by Ex.OP2/4 – Radio diagnosis Register shown that on 05.10.2014 was Sunday. OP-1 miserably fails to produce the emergency telephonic call detail to called OP-2 for CT Scan of deceased-Gurmit Kaur on 05.10.2014.  As per Ex.OP1/4 within the City or within 30 KM for ambulance charges are free of cost. So why not deliver the CT Scan Report inspite of taking emergency charges from complainant by OP-1.  They are duty bound to complete CT Scan report within 45 minute to 60 minutes.  As per version of OPs as mentioned in Ex.OP1/A at second line from bottom  and Ex.OP2/A under parawise reply in Para No.3 they complete CT Scan Report within a maximum period of 60 Minutes.  The complainant look after Gurmit Kaur- deceased because the condition of the deceased was very deteriorating.  So version of OP-1 that OP-1 was present on 05.10.2014 (Sunday) on emergency call basis is not correct.  After completion of report, OP-1 did not bother to make a single phone call to complainant regarding collection of report of CT Scan because the OP-1 had received the emergency charges as per Ex.OP1/3.  If it is possible then why Ex.OP1/2 – CT Scan Register entry of Gurmit Kaur – deceased was entered on 06.10.2014 and not on 05.10.2014.  It mean that the said CT Scan report was not prepared on 05.10.2014.  “A man can lie but document can’t.”  The OP-1 knows very well that this report is utmost important to save the life of person having age of 45 years as per Ex.OP1/2. From the perusal of Ex.C-8, it reveals that at the time of death of Gurmit Kaur - deceased the age of complainant No.1 was 16 years only.  A life of person is priceless although it can’t be compensated in terms of money to family of the deceased-Gurmit Kaur.  It is only redress grievance of complainant through justice.  It is not only duty of this Forum to provide justice to deserving person but also justice must be seems to be. Hence there is deficiency in service on the part of OP-1. We observed that the complainants are consumer under Section 2 (d) ii of the Consumer Protection Act 1986, in the light of Ex.OP1/3, OPs charged Rs.2200/- alongwith emergency charges from the complainant and the OP-1 miserably failed to provide CT Scan Report within one hour to complainant. As per Ex.OP1/A under Para No.1 on page 3, it is mentioned that film of CT Scan was handed over to the attendant of patient immediately after CT scan was done.  But there is no single document placed on record which shows that OP-1 delivered the CT Scan film immediately to attendant of patient. From the perusal of Ex.C-8, it is establish that complainants are survive themselves by using Below Poverty Line Scheme because their mother was expired on 05.10.2014 and their father who was handicapped also died after few months of death of deceased - Gurmit Kaur due to shock of death of deceased - Gurmit Kaur. It means that they face too much financial crises. 
10. As regard to vicarious liability of hospital is squarely covered by the decision of Hon’ble National Commission, New Delhi, in case titled as Krishna Mohan Bhattacharjee (Dr.) Versus Bombay Hospital Medical Research Centre, 2015 (2) CLT 13 (NC), the relevant portion of the same is reproduced as under:-

“24.  Therefore, we are of considered view that hospital authorities are not only responsible for their nursing and other staff, doctors, etc. but also for the Anesthetists and Surgeons, who practice independently, but admit/ operate a case. It does not matter whether they are permanent or temporary, resident or visiting consultants, whole or part time. The hospital authorities are usually held liable for the negligence occurring at the level of any of such personnel. Where an operation is being performed in a hospital by a consultant surgeon who was not in employment of the hospital and negligence occurred, it has been held that it was the hospital that was offering medical services. The terms under which the defendant hospital employs the doctors and surgeons are between them but because of this, it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. The patients go and get themselves admitted in the hospital relying on the hospital to provide them the medical service for which they pay the necessary fee. It is expected from the hospital, to provide such medical service and in case where there is deficiency of service or in cases like this, where the operation has been done negligently, without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability due to reason of non-existing of master-servant relationship between the hospital and the surgeon.

25.  Therefore, on the basis of foregoing discussion, the OPs failed in their duty of care by not advising relevant and important basic laboratory investigations. It was not a Reasonable or Standard of Care from a hi-tech super specialty institute. Thus, the OPs are held liable. The OP-2 was a consultant Neuro Surgeon at OP-1, who died, during pendency of this case, and therefore, OP-1 hospital is vicariously liable. Accordingly, we direct the OP-1 to pay to the complainant, a sum of Rs.10 lakhs as compensation, with interest @ 6% p.a. from the date of filing of this complaint, within 90 days; otherwise, the complainant is entitled to further interest @ 12% till its realization. The parties are directed to bear their own costs.”

11.  With these facts and circumstances, we are of the considered opinion that the ends of justice will be met if the OP-1 liable to pay compensation to complainant. 
12. Resultantly, in the light of our above discussions, the present complaint is partly allowed with terms that complainants are entitled for Rs.10,00,000/- on account of irreparable loss of life of Gurmit Kaur – deceased which shall be paid by OP-1.  OP-1 is further directed to pay Rs.50,000/- as compensation.  The above said entire compliance be made by the OP-1 within a period of one month from the date of receipt of copy of this order
13. Copies of the order be sent to the parties, as permissible, under the rules.
14. File be indexed and consigned to record.

Dated 02.04.2018                                                         

 

 

(Kanwaljeet Singh)                (A.P.S. Rajput)

Member                                  President