PER MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER

1.      These are two cross-appeals.  Both the appeals are being decided by the common judgment inasmuch as they arise out of the same judgment rendered by the State Commission, Delhi in Complaint Case No. 375-1997.   By the impugned judgment, the State Commission partly allowed the complaint and awarded lumpsum compensation of Rs. 1.00 lakh to the complainant.  Feeling aggrieved, Jai Nar Hospital has filed FA 14/2007 whereas, feeling aggrieved, due to inadequacy of the awarded quantum, complainant – Joginder Singh, has filed FA 62/2007 seeking enhancement thereof.

2.      For the sake of convenience, the complainant may be referred to by his name, ‘Joginder Singh’ and the ‘Jai Nar Hospital’ may be referred to as ‘JN Hospital’.  There is no dispute about the fact that Joginder Singh was treated as ‘out-door’ patient  and as ‘in-door’ patient  in JN Hospital for the period between 25.09.1997 till 06.10.1997.  There is also no dispute about the fact that on 06.10.1997, Joginder Singh was shifted to Kalra Hospital as per request of his relatives, while he was in coma.  It is an admitted fact that he was lateron treated at Kalra Hospital and was discharged after management of the medical problem.  At Kalra Hospital, the diagnosis of his medical problem was made as “Hypertensive enocephalopathy”.

3.      Briefly stated, the case of Joginder Singh, as unfolded before the State Commission is that in the morning of 25.09.1997, he felt that something had stuck in his throat while he was taking breakfast.  He noticed that blood was oozing from his mouth.  He suffered severe pain.  He immediately went to JN Hospital.  As per the medical advise, X-Ray of the neck was taken.  An ENT Specialist examined him, who observed that there was perforation in the throat but there was no foreign body stuck in the throat.  Some treatment was given and he was advised not to worry about the problem.  In spite of some treatment, Joginder Singh continued to be uncomfortable and felt choking sensation in the throat.  He again went to JN Hospital on 01.10.1997 with the complaint of pains and suffocation.  The attending doctor informed his wife that there was high Blood Pressure and as such he needed treatment as ‘in-door’ patient.  He was admitted in the hospital.  While he was under the treatment, on 06.10.1997, he experienced difficulty in breathing.  He was put on oxygen.  His condition became worse due to swelling on his face and neck.  His close relatives, urged the Consulting Doctors to seek service of an Expert because Joginder Singh was suffering from convulsions due to high cough.  Ultimately, his relatives shifted him to Kalra Hospital where he was given  further treatment.  The diagnosis of the medical problem was wrongly done at the JN Hospital.  He was given wrong treatment which caused the medical prognosis.  He was in ICU for 20 days and was discharged by Kalra Hospital on 26.10.1997.  He had incurred heavy medical expenditure for the medical treatment.  He suffered pains and agony due to negligent and wrong treatment given to him at the JN Hospital.  Consequently, he claimed compensation of Rs. 14,84,063/-, inclusive of pecuniary and non-pecuniary damages.

4.      By an elaborate written version, the JN Hospital resisted the complaint.  The case of the JN Hospital is that on 25.09.1997, Joginder Singh was treated as ‘out-door’ patient due to his complaint of throat injury caused by a stapler pin, however, the X-Ray examination of the Oesophagus and stomach did not show any existence of foreign body. So, Joginder Singh was given conservative treatment of medicines and injections.  He was also examined by Dr P. Sharma who is an ENT Specialist, and was discharged because there was nothing serious.  He again approached the JN Hospital on 20.09.1997 with the same complaint and was given the necessary treatment as ‘out-door’ patient.  He did not face any serious problem.  When Joginder Singh again approached the JN Hospital on 01.10.1997, then, it was noticed that he was suffering from acute Hypertension and his Blood Pressure was 220/120.  Hence, he was admitted as ‘in-door’ patient.  He was also treated by Senior Consultant, Dr. Atul Luthra.  The necessary treatment was given and drugs were administered to him.  He was also examined and treated by Dr. P. Sharma, ENT Specialist, who noticed small ulceration on left side of hypopharyx, below the tonsilar tissue with slough.   However, there was no bleeding and, therefore, Joginder Singh was advised to take anti-biotics and pain-killers.  His condition was quite stable and therefore he was discharged from the JN Hospital on 05.10.1997.  However, in the same evening, he again approached the JN Hospital and reported of numbness of the extremities and discomfort.  He was immediately re-admitted and examined by the doctors, including Dr. Atul Luthra.  In the evening, Joginder Singh suffered Duodenal Ulcer. It was found that his Blood Pressure had shot up and therefore he was given treatment for controlling the Blood Pressure.  Dr. Atul Luthra indicated that Joginder Singh might be suffering from a rare medical problem called “Phaeno-chromociatoma” with Hypertensive Encephalopathy”.  Therefore, he was advised to be admitted in ICU and was to be kept on respirator.  The ICU with respirator facilities were not available with JN Hospital and hence Joginder Singh was advised to be shifted to the Hospital having such facility.  His relatives shifted him to Kalra Hospital.   The JN Hospital categorically denied that there was any  medical negligence committed by the attending doctors or the staff members while Joginder Singh was under treatment in that hospital.  Consequently, the JN Hospital sought dismissal of the complaint.  

5.      The parties filed their affidavits in support of their contentions.  No independent expert was examined during the course of the proceedings before the State Commission.  The State Commission held that the allopathic drugs were administered to Joginder Singh though he had informed the doctors of the JN Hospital that such medicines did not suit him.  The State Commission came to the conclusion that wrong treatment was given to Joginder Singh without proper diagnosis and as such, the JN Hospital was guilty of medical negligence.  Consequently, general compensation of Rs. 1.00 lakh was awarded to him.

6.      We deem it proper to formulate the following points for determination, in these appeals :-

i)        Whether it is proved by the complainant (Joginder Singh) that there was medical negligence on the part of the JN Hospital and he was given wrong treatment which resulted into prognosis, pains and sufferings?

ii)                 Whether Joginder Singh is entitled to claim compensation from JN Hospital?  If yes, whether the quantum of compensation awarded by the State Commission is inadequate and deserves further enhancement?

7.      We have heard learned counsel for the parties and also allowed Joginder Singh to participate during the course of hearing as he was anxious to explain his case.  We have also gone through the impugned judgment and the relevant case law, particularly, the case of Martin F. D’souza Vs. Mohd. Ishfaq – (2009) 3 SCC and Savita Garg Vs. Director, National Heart Institute – 2004-CPC-2-675 in Civil Appeal No. 4024/2003  (SC).

8.        Both the cases were referred to by learned counsel for Joginder Singh.  In the case of Savita Garg (supra), the Apex court remanded the matter because the original petition was dismissed summarily by this Commission  on the ground of non-joinder of necessary parties.  The treating doctor was not impleaded and, therefore, this Commission held that the Original Petition was not maintainable.  The Apex court held that the burden would lie on the Hospital to justify its treatment in order to show that there was no negligence on the part of the treating doctors.  It was observed that the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient.  In case of Martin F. D’souza (supra), the Apex court held that the doctors doing duty with reasonable care would not incur liability even if their treatment failed.  The Apex court further observed that simply because the patient had not favourably responded to the treatment given by the treating doctor, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitor .

9.      So far as the question of medical negligence is concerned, the law is well crystallised and the State Commission also took due note of the same.  It is not necessary to reiterate the principles which are discussed by the State Commission in paras 5 to 10 of the impugned judgment. The real dispute in the present case is about the proof of alleged medical negligence in specific terms.   The complaint goes to show that the medical treatment was made available to Joginder Singh on 25.09.1997 itself and he was asked to go home because no foreign body was found in his throat during the course of the X-Ray examination. He had a feeling that some stapler pin had stuck inside the throat. However, that was not corroborated by the X-Ray examination.  He did not approach the JN Hospital, thereafter, till 01.10.1997.  On 01.10.1997, again he was treated.  The complaint itself shows that he was kept on oxygen, necessary injection was administered and medicines were given by the attending doctor.  According to him, his relatives and friends had urged the doctors of JN Hospital to call some Specialist on 06.10.1997.  The pleadings in para 3 of the complaint are as follows :-

“This aggravated my condition still further.  Swelling appeared on my fact and body.  By the time my friends and relatives arrived and asked the hospital doctors to call in some specialist doctor.   They paid no attention to this request, but instead administered to me the same injection and the medicine in the manifold doses.  That sent me into coma and the high-cough changed into convulsions of high-cough.  My wife relatives and friends got much worried about my life and cursed the hospital doctors who were not perturbed at my plight.  My family members wanted me to be shifted to Kalra Hospital at A-6 Kirti Nagar, New Delhi – 110 015.  The Jai Nar Hospital was asked to provide their ambulance which was very much available with them at that time.  It was raining at the time which made the things worse”.

          A perusal of the above pleadings will show that the negligence is attributed to JN Hospital on two counts.  Firstly, that though help of Expert doctor was sought by the relatives of Joginder yet, that was not made available.  Secondly, the JN Hospital refused to provide its ambulance for shifting him to another hospital.   There is no dispute about the fact that in the same evening, i.e., on 06.10.1997,  he was shifted to Kalra Hospital. 

10.    This is a case in which there is oath against oath.  Admittedly, Joginder Singh was in coma when his relatives and friends urged the attending doctors of JN Hospital to seek help of an Expert.  It is obvious, therefore, that he has no personal knowledge about such a request made by them.  None of his relative was examined to prove the allegation that the doctors of JN Hospital committed any particular negligence in providing medical assistance of an Expert or refused to give ambulance though it was available.  It is important to mention here that the State Commission specifically directed Joginder Singh to file affidavit of Dr. R.N. Kalra in respect of recommendation of the treatment given by the attending doctors of JN Hospital.  The order dated 20.09.2004 reads as follows :-

“After hearing of counsel for both the parties we find that the complaint has been filed with regard to the nature of medicine administered by the Dr. of the OP who treated the complainant in such a way that the complainant developed hyper-tension and went in coma etc. Since the complainant was subsequently treated for his deteriorated condition followed by the administration of medicine by the OP, the concerned doctor  of Kalra Hospital Dr. R.N. Kalra, be summoned as a witness.  The complainant is required to file an affidavit of Dr. R.N. Kalra about the recommendation  of treatment given by the doctor of the OP Hospital.  Copy of which will be given to the OP who will file an affidavit of another expert.  This process shall be completed within 4 weeks”. 

11.        It appears that Dr. Kalra gave explanation vide letter dated 18.11.2005 that Joginder Singh was treated by Dr. Atul Luthra in his hospital and, therefore, it was desirable to summon Dr. Atul Luthra.  It appears that Dr. Atul Luthra is the ENT Specialist.   The available record of JN Hospital shows that Dr. Atul Luthra was consulted for the treatment of Joginder Singh.  Thus, Dr. Atul Luthra attended Joginder Singh in JN Hospital as well as in Kalra Hospital.  It further appears that at JN Hospital, another ENT Specialist by name, Dr. Sharma was also the attending doctor.  Both the ENT Specialists had prescribed medicines to treat him.  It further appears that  on 01.10.1997, Joginder Singh was found to be better.  He was discharged on 05.10.1997 after treatment between 01.10.1997 till 05.10.1997.  The fact remains that in spite of direction of the State Commission, Dr. R.N. Kalra was not examined nor his affidavit was filed. Not only that,  Dr. Atul Luthra also was not examined.

12.    Mr. Chowdhury, Advocate for the complainant Joginder Singh submits that JN Hospital committed negligence because allopathic drugs were administered without conducting blood test or the tests to verify whether the patient was allergic to such drugs or not.  He submitted that the dose of medicines were increased and, therefore, Joginder Singh went into coma due to the allergic reaction.  He pointed out further that no endoscopy was conducted by JN Hospital to ensure that there was no foreign body in the throat or any part of the abdomen.  He would submit that Joginder Singh suffered from hypertensive encephalopathy because of totally wrong treatment given by the doctors of JN Hospital.  He would point out that at the JN Hospital,  the diagnosis of ailment was made as “duodenal ulcer” and the treatment was given on that line though  it could not be a case of ulcer.

13.    As stated above, no medical expert was examined by Joginder Singh to pin-point what was the patent error in the diagnosis of the medical problem and how the treatment given to him at the JN Hospital could be regarded as wrong treatment arising out of medical negligence.  His own affidavit does not suffice the purpose.  There is nothing beyond his affidavit to show that he was allergic to any allopathic medicine and yet was given such medicines without conducting prior tests.  He alleged that the treating doctor of the JN Hospital was not a qualified one.  Still, however, such allegation is not supported by any reliable evidence nor it was accepted by the State Commission as correct one.

14.    Indeed, the State Commission proceeded to hold that there was negligence because certain allopathic medicines were administered to Joginder Singh in spite of the fact that he had informed the attending doctor of JN Hospital that such medicines were not suitable to him.   We do not find any such specific averment in the complaint nor any entry in the medical record to support such allegation.  It may be gathered that on 03.10.1997, the ENT examination was conducted by Dr. P. Sharma in JN Hospital.  It appears that small ulceration on left side of hypopharynx below tonsilor tissue was found   by the ENT Specialist.  He, therefore, had prescribed allopathic medicines and pain killers to cure the ulcer.  It appears that such medical finding recorded by Dr. P. Sharma in the medical papers of JN Hospital is in keeping with repeated complaints of Joginder Singh.  His complaint from day one was of feeling that something had stuck inside the throat and had caused oozing of blood.  So, treatment given to him for the problem for ulcer cannot be branded as patently wrong.  There is no evidence that such treatment was given without taking due care and, therefore, it resulted into the problem of hypertensive enocephalopathy.  The impugned judgment State Commission shows that in the opinion of Dr. Atul Luthra Joginder Singh might have been suffering from a rare condition called  “phaenochromcitoma” .  It was Dr. Atul Luthra who suggested CT Scan and monitoring of Blood Pressure at every half-an-hour.  Thus, it was a rare case which resulted in hypopharynx.  In other words, a ENT Specialist with the skill of a prudent and generally skilful doctor was also unlikely to make such a diagnosis at an early stage.

15.    We are of the opinion that the State Commission committed patent error while reaching the conclusion that Joginder Singh was diagnosed wrongly and it was because of wrong treatment that he went into coma and was required to be shifted to hospital of Dr. Kalra.  In any case, without there being tangible material to pin-point medical negligence of the treating doctors of JN Hospital, the State Commission wrongly held that there was negligence committed by them while treating Joginder Singh at JN Hospital.  We are of the opinion that the said finding of the State Commission is based on conjectures.  The fact that the condition of Joginder Singh had deteriorated between 01.10.1997 to 06.10.1997 seems to be the main reason which prompted the State Commission to infer that there was medical negligence on the part of the JN Hospital.  We do not find any substantial reason to uphold the finding that Joginder Singh was allergic to allopathic medicines, yet was administered such medicines which caused reaction and such act of the treating doctors of JN Hospital would amount to medical negligence.  We are of the view that Joginder Singh utterly failed to prove that JN Hospital and the doctors attending him in that hospital committed medical negligence.  In this view of the matter, the complaint ought to have been dismissed by the State Commission.

16.    For the reasons discussed herein above, we allow the appeal No. 14/2007 and set aside the impugned judgment and order of the State Commission. The complaint of Joginder Singh stands dismissed.  It follows that FA 62/2007 filed by Joginder Singh is also dismissed.  The parties shall bear their own cost through out.  If any amount is already paid to Joginder Singh towards compensation, it may not be recovered by the JN Hospital and be treated as adhoc payment made to him, on humanitarian ground.

          The refund of statutory deposits in accordance with the normal rules, be released in favour of the depositor, by the Registry, along-with interest accrued thereon, if any.