RESERVED
State Consumer Disputes Redressal Commission
U.P., Lucknow.
Complaint No. 02 of 2009
Km. Richa Singh, aged about 8 years, daughter of
Shri Anil Singh, R/o Village, Bhandwar, Post Office,
Ratanapur, District, Jaunpur under natural guardianship
her father Anil Singh, R/o Village, Bhandwar, Post Office,
Ratanapur, District, Jaunpur. ....Complainant.
Versus
1- J.J. Clinic Evam Nursing Home, G.T. Road,
Ali Nagar, Mugalsarai, District, Chandauli through
its Director.
2- Dr. Rajiv attached Consultation Doctor & Heat
Disease Specialist, J.J. Clinic Evam Nursing Home,
G.T. Road, Ali Nagar, Mugalsarai, District, Chandauli.
…..Opp. Parties.
Present:-
1- Hon’ble Sri Udai Shankar Awasthi, Presiding Member.
2- Hon’ble Sri Govardhan Yadav, Member.
Shri Anil Kumar Mishra, Counsel for complainant.
Shri Manish Malhotra, counsel for the OPs.
Date 13.11.2018
JUDGMENT
(Delivered by Sri Udai Shankar Awasthi, Member)
This complaint has been filed by Km. Richa Singh minor through her father Shri Anil Kumar Singh against the J.J. Clinic & Nursing Home and Dr. Rajiv, a doctor working in the said clinic with the prayer to make payment of Rs.2,27,000.00 in lieu of expenses incurred on the treatment of the complainant alongwith 18% interest per month and for payment of Rs.25 lacs as compensation for loss of her leg and further for payment of compensation towards mental pain and agony.
The facts, in brief, are as under.
As per the complaint allegation, when the complainant
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was of about 1.5 years of age in October, 2001, she visited the house of her maternal grandfather where she fell ill and due to high fever she was admitted in the hospital of OP no.1 on 11.10.2001 and was treated there by OP no.2 on payment of fees and other expenses charged by the hospital. She was diagnosed as a case of febrile convulsion. During the course of treatment OP no.2 Dr. Rajiv gave medicines through intravenous injection in her left foot, simultaneously bandage was tightened at the point where intravenous injection was injected. In spite of treatment of OP no.2 at OP no.1 hospital, condition of the complainant further deteriorated, as such, complainant was taken to Sir Sundar Lal Hospital, BHU for treatment. At BHU hospital doctors found that because of tightened bandage at the point of intravenous injection to a small child of her age, gangrene developed in her left leg. When doctors at BHU could not improve the condition of the complainant, they advised the family members of the complainant to take the complainant to KEM Hospital, Bombay. Thus, on the advice of doctors of BHU complainant was admitted on 23.10.2001 in KEM Hospital, Bombay. Doctors at KEM Hospital, Bombay also expressed their shock on analyzing the condition of the complainant. They were also of the view that due to tightening of bandage at the point on intravenous injection, gangrene has developed in the left leg and ultimately on the advice of the doctors, to save the life of the complainant, her left leg was amputated. After amputation of leg of the complainant father of the complainant also consulted different experts for rehabilitation of leg of her child, in that process they contacted Bhagwan
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Mahavir Viklang Sahayata Samiti, Kota and Sri Sadguru Sewa Sansthan, Nasik Road, Maharastra for preparation of artificial leg.
This complaint was earlier decided by this Commission vide order dated 18.4.2012 exparte against which OPs have filed first appeal no.459 of 2014 before the Hon’ble National Commission. Hon’ble National Commission vide order dated 13.10.2015 has allowed this appeal and remanded the matter to this Commission for deciding afresh after giving opportunity to the OPs to file their written versions and giving opportunity to the parties to file evidence.
OPs have filed their written statement wherein they had denied that in the course of treatment of the complainant they had given medicines through intravenous injection in her left foot and also denied fastening of any bandage. OPs have alleged that total treatment given by them to the complainant was for 3 days i.e. from 11.10.2001 to 13.10.2001 and as per the complainant’s allegation she was admitted in Sir Sunder Lal Hospital, BHU on 15.10.2001. The complainant was discharged by the OPs on 13.10.2001 and in the discharge certificate her condition was shown as improved but the complainant was admitted in Sir Sunder Lal Hospital, BHU on 15.10.2001 in serious condition then what had happened after discharge of the complainant from the hospital of OP no.1 after 13.10.2001 till her admission at Sir Sunder Lal Hospital, BHU on 15.10.2001 rendering the condition of the complainant becoming serious from improved. Who had inducted intravenous injection and who had fastened tight bandage on her left lower leg is a fact well known to the
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complainant but certainly it is not the act of the OPs. It seems that the complainant was treated by some unqualified person after discharge from the hospital of the OP no.1 and prior to admission at Sir Sundar Lal Hosptial, BHU on 15.10.2001 and when the condition of the complainant became serious then she was admitted at Sir Sunder Lal Hosptial, BHU on 15.10.2001. The complainant is trying to put the liabilities of others upon the shoulders of the OPs. OPs further alleges that the complaint is highly time barred because the complainant was admittedly treated from 11.10.2001 to 13.10.2001 at OP no.1 hospital and complaint was filed after a lapse of about 8 years in the year 2009.
In support of the complaint allegation, the complainant has filed evidence as under:-
- Affidavit of Shri Anil Kumar Singh father of the complainant dated 20.6.2011 alongwith 6 annexures.
- Annexure No.1 & 2 prescriptions given by the OP no.1 to the complaint.
- Annexure no.3 summary and discharge record issued by SS Hospital, BHU.
- Annexure no.4 copy of discharge certificate issued by Department of Pediatric Surgery, KEM Hospital, Parel, Mumbai.
- Annexure no.5 copy of photograph of the complainant.
- Annexure no.6 receipt dated 1.2.2008 issued by Bhagwan Mahavir Viklang Sahayata Samiti, Kota.
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- Annexure no.7 treatment chart issued by All India Institute of Physical Medicine and Rehabilitation, Mumbai.
- Affadavit of Anil Kumar Singh father of the complainant dated 28.4.2016.
The OPs in support of their version have filed following evidence.
- Affidavit of Dr. Rajiv Kumar dated 1.2.2016 alongwith copy of guidelines issued by the Medical Council of India as annexure no.1.
- Supplementary affidavit of Dr. Rajiv Kumar dated 27.6.2016.
We have heard counsel for the parties and perused the entire record.
Ld. Counsel for the OPs has argued that the complaint is highly time barred. In this context, he has argued that the present complaint was filed on 13.1.2009, undeniably complainant was treated in the hospital of the OP no.1 from 11.10.2001 to 13.10.2001. The complainant further alleges that her left leg partially, below knee, was amputated at KEM Hospital, Parel, Mumbai on 29.10.2001 and was discharged thereafter from this hospital. Thereafter on 11.3.2002, the complainant started treatment from All India Institute of Physical Medicine and Rehabilitation, Mumbai under Physiotherapy Department where on 15.11.2004, the complainant was fitted with left KD Prosthesis and vide doctor report dated 17.12.2004, complainant’s condition was improved and treatment closed. Thereafter, there is nothing on record to show that the complainant because of her
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treatment could not file the complaint. The complainant has submitted a receipt of Bhagwan Mahavir Viklang Sahayata Samiti, Kota and Sri Sadguru Sewa Sansthan, Nasik Road, Maharastra dated 1.2.2008 which has nothing to do with treatment of the complainant. As per provision of section 24 (A) of the Consumer Protection Act limitation provided for filing a complaint is within 2 years from the date on which the cause of action has arisen. No sufficient cause has been shown by the complainant and there is no evidence on record to show that the complainant was resisted to file the complaint within the period of limitation. Thus, the complaint is highly time barred and can not be entertained.
Counsel for the complainant has argued that because of the negligence of the OPs, left leg below knee of the complaint was ultimately amputated and in connection with her treatment and for her rehabilitation, the complainant had to approach Sir Sundar Lal Hospital, BHU, KEN Hospital, Parel, Mumbai, All India Institute of Physical Medicine and Rehabilitation as well as Bhagwan Mahavir Viklang Sahayata Samiti, Kota. Receipt submitted by Bhagwan Mahavir Viklang Sahayata Samiti, Kota is dated 1.2.2008, cause of action in this case is continuous and due to the negligence of the OPs the sufferings of the complainant is continuing, as such complaint can not be treated as time barred. He has further argued that as the complainant was minor at the time of treatment by OPs in the year 2001, she was of the age of about 1 and half year, being a minor she can file the complaint till she attains majority.
This is an undisputed fact that the complainant was
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minor at the time of treatment at the hospital of OP no.1 being of the age of about 1 and half year, as minor can file a complaint regarding any cause of action accrued during her minority till she attains majority, this complaint can not be treated as time barred.
Now the next question to be adjudicated in the present case is whether any negligence has been committed by the OPs in treatment of the complainant thereby committing deficiency in service.
It is an admitted fact that the complainant was treated in the hospital of the OP no.1 from 11.10.2001 to 13.10.2001. The complainant alleges that during her treatment, OP no.2 has given intravenous injections in her left foot and tight bandage was fastened at the point of insertion of the injection which has caused blockage in the supply of blood and ultimately developed into gangrene. Counsel for the complainant has argued that this fact is fortified by the discharge summary issued by SS Hospital, BHU, where the complainant was admitted on 15.10.2001, when she could not recover from the treatment OPs. In this context, he has drawn our attention to the annexure no.3 filed alongwith affidavit of the complainant. On perusal of which, it is found that the complainant was admitted for treatment in SS Hospital, BHU on 15.10.2001 and was discharged on 20.10.2001. She was admitted as a case of gangrene of left leg and also had fever for one week. There was history of application of tight bandage over leg possibility of arterial blockage at level of poplitial entry. She was treated there but because of non improvement, patient was referred to some higher center for vascular surgery and further management.
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Ld. Counsel for the OPs has argued that assertion of the complainant that medicine was given through intravenous injection and bandage was fastened tightly is absolutely false and creation of mind. He has further argued that the matter relates back to the year 2001 and petition has been filed in 2009 with only one prescription filed by the complainant alleged to have been issued by OP no.2 wherein OP no.2 has diagnosed that the complainant was suffering from Febrile Convulsion (jerk on account of high fever) and she was advised following medicines:
- Intra Muscular Fortum, 250 mg. BD (antibiotic)
- Intra Muscular Mikacin, 100 mg. BD (antibiotic)
- Syrup Tofe BD Half tea spoon.
- Syrup Dilantian 2.5 ml (bed time)
- Syrup Dolipnevane 2.5 ml SOS
No other prescription purporting to be prescribed by the OP no.2 has been filed by the complainant. The above medication given was adequate medication for the treatment of the patient. He has further argued that the complainant has intentionally and deliberately not filed the treatment and discharge record of the patient form 11.10.2001 to 13.10.2001. He has further argued that the complainant has not filed as to what treatment she was given and from which medical practitioner between 13.10.2001 and 15.10.2001 as she was not under the treatment of the OPs. Counsel for the OPs has also argued that the doctors at the Institute of Medical Sciences and SS Hospital, BHU, Varanasi have written on the prescription as they were informed by the attendants of the patient, on the basis of which the treatment
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of the patient was given by the doctors of Institute of Medical Science and SS Hospital, BHU, Varanasi. It can not be inferred form the writing of the Institute of Medical Science and SS Hospital, BHU, Varanasi that any negligence was caused by the OP no.2.
Counsel for the complainant has vehementaly opposed and argued that no paper other than prescription dated 13.10.2001 was supplied by the OP to the complainant regarding treatment of the complainant by the OPs.
Although OP no.2 Dr. Rajiv Kumar has filed a supplementary affidavit dated 27.6.2016 wherein he has stated that the complainant has intentionally not filed the treatment and discharge record of the patient from 11.10.2001 to 13.10.2001. We are of the view that contents of this affidavit are infact after thought because the complainant in his complaint has specifically alleged about the treatment prescription given by the OPs and has filed the same as annexure 2 alongwith complaint. On behalf of the complainant her father has filed the affidavit also corroborating this fact. This fact is specifically mentioned in para 5 of the complaint of the complainant. The OPs in reply to para 5 of the complaint in their written version has not stated that the complainant has not deliberately filed the prescriptions alleged to have been issued on 11.10.2201 and 12.10.2001. Had OPs provided any other documents regarding treatment of the complainant other than the prescription dated 13.10.2001, it would have been quite natural for OPs to have mentioned this fact specifically in reply to para 5 of the complaint. Moreover, on perusal of
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annexure 2 i.e. prescription dated 13.10.2001 issued by the OPs, it is evident that in this prescription date of admission and date of discharge is also mentioned. Had the OPs issued detailed discharge summary to the father of the complainant then there was no occasion for mentioning the date of admission as 11.10.2001 and date of discharge as 13.10.2001 on prescription dated 13.10.2001. Thus, we are of the view that contention of the OPs that the complainant has deliberately not filed the detailed prescription of 11.10.2001 and 12.10.2001 is not acceptable.
It is the right of the patient to know detailed about his/her treatment, about the disease and diagnosis thereof. Medical Council of India Regulations, 2002 requires maintenance of record in this regard by practicing doctors. In the present case by not providing details of the treatment of the complainant from 11.10.2001 till discharge of patient OPs had deprived the complainant of her right thereby committing deficiency in service, in this regard.
It is also expected from the medical practitioner that due care be taken in the treatment of the patient. On perusal of annexure 2 i.e. prescription dated 13.10.2001, it is evident that the OP no.2 had diagnosed Febrile Convulsion and for the treatment of which has prescribed Intra Muscular Fortum, 250 mg. and Intra Muscular Mikacin, 100 mg. BD (antibiotic). It is undisputed that the complainant was admitted on 11.10.2001 for treatment in the hospital OP no.1 but for want of supply of any information regarding treatment rendered on 11.10.2001 and 12.10.2001, it can not be said that any pathological test was performed to ascertain the
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disease. From perusal of the annexure 3 copy of discharge record provided by SS Hospital, BHU, it is found that infact the complainant was suffering from Meningitis fever which shows that in fact the OPs have not tried to confirm the diagnosis after performing any pathological test.
Further, evidence adduced by the complainant suggests that gangrene was developed in the left leg of the complainant which ultimately led to amputation of the left leg below knee. Hence, it would be pertinent to adjudicate the cause of the development of the gangrene, whether it was the cause because of the alleged negligence of the OPs.
The complainant alleges that this had developed because during her treatment at OP no.1 hospital intravenous injection was injected in her left leg and at the site of injection tight bandage was fastened causing blockage to the flow of blood, whereas OPs have totally denied it by alleging that this allegation is frivolous and without any supporting medical evidence. The OPs have further alleged that the complainant was treated in the OP no.1 hospital from 11.10.2001 to 13.10.2001. On 13.10.2001, the complainant was discharged in improved condition, complainant herself admitted that she was admitted in SS Hospital, BHU on 15.10.2001. It seems that the complainant after discharge from the hospital of the OPs came in contact with some quack and on account of unqualified and unprofessional approach coupled with complete negligence of the complainant must have resulted into mis-happening which infact has nothing to do with the OPs. History recorded at the time of admission in SS Hospital, BHU was recorded on the basis of the statement furnished on behalf of the complainant.
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This contention of the OPs that the complainant was probably treated by some quack after her discharge from OP no.1 hospital is totally based on presumptions and considering the facts and circumstances of the matter is unbelievable. It would be pertinent to mention that the parents of the complainant opted for her treatment in a private hospital of OP no.1 instead of going to some government hospital or some quake in the hope of getting some better treatment without caring for expenses. The OPs are admitting that the complainant was treated from 11.10.2001 to 13.10.2001 in their hospital. This is also evident from the evidence that on 15.10.2001, the complainant was admitted at SS Hospital, BHU and as per the advice of BHU doctor got her reated at KEM, Mumbai. This shows how careful the parents were, for better treatment of the complainant. This possibility cannot be ruled out that the parents have not given much importance to fastening of tight bandage at the time of discharge of the complainant and have got their child discharged on seeing improvement of her fever but when the condition of the complainant again started deteriorating they preferred to consult at SS Hospital, BHU where on examination of the leg of the complainant, they then narrated about the history of the treatment given at OP hospital. Doctors at SS Hospital, BHU have also found this narration quite significant, as such they also thought it proper to mention it in the discharge summary. In the discharge summary of SS Hospital, BHU this fact is also mentioned that the child was admitted outside for 3 days. If the complainant was treated after her discharge from the OP hospital by any
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other doctor certainly this fact would have also been told to the doctors at BHU and should have been mentioned by the concerned doctors. It is also important to mention that ordinarily gangrene cannot develop in a day. It is also not uncommon that during the treatment of infants medical practitioner very after use drips in the let of the patients to inject saline water or medicines and fastened bandage to avoid its disturbance or movement.
It is also worth-mentioning that in spite of the fact that the complainant was treated from 11.10.2001 to 13.10.2001 at the OP no.1 hospital. At the time of discharge, the OPs have not supplied the entire details of the treatment given from 11.10.2001 to 13.10.2001 to the complainant’s father, only prescription dated 13.10.2001 was provided to him wherein date of admission is shown as 11.10.2001 and date of discharge is shown as 13.10.2001. As mentioned earlier, it is the right of the patient to be informed about the details of the treatment. This indicates that in fact OPs have concealed information regarding entire treatment provided to the complainant at their hospital. Because of non-supply of the entire details of the treatment, we are of the opinion that adverse inference should be drawn against the OPs.
Considering into account the entire facts and circumstances, we are of the view that in fact gangrene in the lower left leg of the complainant has developed because of the negligence of the OPs in the treatment, in taking care of the complainant during her treatment which ultimately led to amputation of her lower left leg below knee. As such, complainant deserves to be compensated by the OPs.
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Now the important question to be adjudicated is what should be the amount of compensation
Undoubtedly, the complainant’s left lower leg below knee had to be amputated because of the negligence of the OPs at the tender age of about 1 an half years. Hence, she will have to live life of a handicapped throughout her life. This handicap will certainly adversely affect normal personality development of the complainant. She will have to face this trauma physically as well as mentally throughout her life. Rehabilitation of this deformity for the entire life would certainly be very expensive. We are of the view that Rs.20 lacs would meet the ends of justice.
ORDER
The complaint is allowed. The OPs are directed to pay an amount of Rs.20 lacs alongwith interest @ 6% from the date of filing of the complaint till the date of its realization, to the complainant within one month from the date of this order.
Certified copy of the judgment be provided to the parties in accordance with rules.
(Udai Shankar Awasthi) (Govardhan Yadav)
Presiding Member Member
Jafri PA II
Court No.2
