BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 628 of 2019
Date of Institution : 18.10.2019
Date of Decision : 18.07.2023.
Kamal aged 29 years son of Shri Subhash Chand, resident of Near Devi Lal Park, Kirti Nagar, Sirsa.
……Complainant.
Versus.
1. Janta Maternity & General Hospital, Janta Bhawan Road, Sirsa through its Chairman/ Secretary/ Authorized signatory.
2. Dr. Atish Jain, Child Specialist, C/o Janta Maternity & General Hospital, Janta Bhawan Road, Sirsa.
3. Dr. Shikha Goyal Gynecologist, Janta Maternity & General Hospital, Janta Bhawan Road, Sirsa.
4. Oriental Insurance Company Limited Sirsa branch at Janta Bhawan Road, Sirsa being the Indemnifier of Dr. Shikha Goyal/ Insurer of the op no.3 vide Policy No. 272200/48/2019/18948 w.e.f. 3.2.2019 to 02.02.2020.
5. Oriental Insurance Company Limited, Branch office at Sirsa, Branch at Janta Bhawan Road, Sirsa, Insurer of op no.2 vide policy No. 272200/48/2020/147 for the period w.e.f. 3.4.2019 to 02.04.2020.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. PADAM SINGH THAKUR……………PRESIDENT
SMT. SUKHDEEP KAUR ………….…… MEMBER.
Present: Sh. Chirag Jain, Advocate for the complainant.
Sh. S.S. Goyal, Advocate for opposite party no.1.
Sh. Deepak Goyal, Advocate for opposite party no.2.
Sh. A.K. Gupta, Advocate for opposite party no.3.
Sh. Ravinder Goyal, Advocate for opposite parties no.4 and 5.
ORDER
The complainant has filed the present complaint under the provisions of the Consumer Protection Act, 1986 (as amended in 2019) initially against the opposite parties no.1 to 3 and thereafter got amended the same by impleading opposite parties no.4 and 5 ( hereinafter referred to as Ops).
2. In brief, the case of the complainant is that he is a poor laborer by profession and is living under the below poverty line. That Smt. Babli wife of complainant conceived the pregnancy and since her pregnancy, the complainant is getting the treatment and routine checkup of his wife from op no.1 hospital being the Trust and OPD slips were being issued by op no.1 hospital time to time. The complainant also got conducted the tests on his wife as and when prescribed by the doctor of the hospital. It is further averred that thereafter at the delivery stage, the complainant got admitted his wife with the op no.1 for the delivery case and the fact remains that as wife of the complainant had already undergone the blood tests etc. and Hepatitis-B observed to her and the same disease also find mention in medical record/ treatment record/ admission file of his wife. That delivery was conducted via surgical operation and female child was born on 08.05.2019. It is further averred that during the surgical operation and even after the operation, the attending doctor under the op no.1 after going through the physical internal condition of his wife which duly finds mention and reported in the testing report including the report of Hepatitis-B vide report dated 27.3.2019, the treating doctor advised further follow-up treatment to be administered upon the complainant’ wife. That despite the report of disease as Hepatitis-B, the treating doctor and staff of op no.1/ hospital mentioned the disease as Hepatitis-C on 8.5.2019 which happened only because of negligence on the part of ops no.1 to 3.
3. It is further averred that due to wrongful and negligent reporting of Hepatitis-C by the treating doctor and staff, the further treatment was started according to Hepatitis-C to newly born baby and the required vaccination which ought to be administered upon newly born baby could not be injected to her rather the treatment of Hepatitis-C was administered upon the newly born baby. This gross negligence on the part of the ops no.1 to 3 amounts to playing with life of the newly born child as on account of the unnecessary administering of medicines/ doses of Hepatitis-C and non providing the treatment of Hepatitis-B, the condition of newly born baby became deteriorated and she also suffered the internal side effects and weakness including vomiting, diarrhea. That such gross negligence on their part has wrongly effected upon the health of the complainant’s daughter and she is still under treatment due to the negligent treatment by the doctors of op no.1. It is further averred that complainant also made a complaint in this regard through C.M. Window, Sirsa and said complaint was enquired by the office of C.M.O. Sirsa and during enquiry found the ops negligent in providing the treatment, but no action has been taken against the ops nor the grievance of complainant has been redressed. That on account of this negligence and deficiency in service on the part of ops, the complainant also undergone economic loss as he had to incur the amount on the testing etc. As such the ops are legally liable for the payment of compensation amount of Rs.9,00,000/- to the complainant on account of harassment, humiliation and causing physical loss to the health of newly born baby of complainant. That complainant has also got served a legal notice upon the ops but to no effect. Hence, this complaint.
4. On notice, ops appeared. Op no.1 filed reply raising certain preliminary objections regarding maintainability, cause of action, concealment of true and material facts etc. On merits it is submitted that op no.1 hospital is a charitable hospital and is providing medical services to the people at very nominal/ concessional charges since last 40 years. The hospital is being run by the Trust without getting any profit. The charges of every type like OPD. Hospitalization etc. are lowest of the area. In the same manner, the Trust is also aware to provide laboratory and radiologists tests at concessional rates much economical that the market. However, every patient who is prescribed to have laboratory and other tests is always free to get conducted those tests from any laboratory or diagnostic center of his choice and hospital staff or any doctor of the hospital never ask any patient to get conducted the tests from any specific laboratory etc. It is further submitted that as per record of the hospital, Babli wife of Kamal was admitted to op no.1 hospital on 08.05.2019 and a baby girl was born to her on the same date. However, no record of blood testing is available in the indoor file of patient Babli. That ops no.2 and 3 doctors are working with op no.1 hospital since many years and are well qualified and experienced in their profession. There is no complaint of any type from any one regarding their sincerity and work experience till now. It is further submitted that present complaint has been filed just to put pressure upon ops. That after oral complaint made by Babli and her husband, the matter was enquired by the administration and Trustees of the Welfare Trust and it came to the notice that on the baby file of the hospital record, it was mentioned that mother was HCV positive. No treatment regarding HCV positive was given to newly born baby as there is no treatment of HCV positive was required and the newly born baby was treated according to the condition and was discharge don 13.05.2019 in stable condition. The concerned doctor and staff were further advised to take extra care in future. It also came to the notice that as soon as op no.2 doctor came to know that mother of baby was Hepatitis-B +ve during her OPD visit, the baby was get vaccinated accordingly. It is further submitted that newly born baby was in stable condition even during treatment of Hepatitis-B. That statement of OP no.2 as well as statement of Sh. Raj Kumar Kamra Administrator of op no.1 was duly submitted before Enquiry Officer of Health Authority and entire records were duly produced before authority. The Enquiry Officer after going through the complete record as well as statement made his report to the Health Authority which issued letter dated 08.08.2019 to op no.2 not to repeat such mistakes in future and copy of above letter was also sent to op no.1. Hence, it is wrong to narrate that no action was taken by the C.M. Window. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. Op no.2 also filed written statement taking certain preliminary objections that correct name of op no.2 is Dr. Adeesh Jain and not Dr. Atish Jain as mentioned in the array of ops and that present complaint is wholly misconceived, groundless, frivolous and vexatious and has been filed against op no.2 just to harass, defame and extort illegal sum of money from op no.2, hence complaint is liable to be dismissed. That no specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by complainant against op no.2 and complainant has totally failed to explain as to how he is involved and op no.2 was negligent, hence complainant has miserably failed to explain the cause of action against op no.2. It is further submitted that complaint is totally false and baseless which is synthesized on the basis of unscientific laymen conjectures, assumptions and presumptions and that in this case no negligence has been committed by op no.2 and that complaint is bad for non arraignment and mis arraignment of parties. The op no.2 is insured with Oriental Insurance Company from 03.04.2019 to 02.04.2019 and that op no.2 is a well qualified and a reputed doctor with substantial good will and experience of long standing successful medical practice and complaint is full of concocted facts, defamatory language, derogatory words, spirit and tenure.
6. On merits, it is submitted by op no.2 that true facts are that there is no vaccination available for Hepatitis C. Only vaccination of hepatitis B is available, which was duly administered to the child patient since her mother was Hepatitis B. It is further submitted that baby of Babli was born by LSCS on 08.05.2019 at 9.54 a.m. having birth weight 1.5 kg, baby file mentions that mother was HCV positive. As no treatment of HCV is required, hence no treatment of HCV was given to baby. That baby was treated according to her condition and discharged on 13.05.2019 at 5.00 p.m. in stable condition. It is further submitted that later on, as op no.2 came to know in OPD visit of patient that mother is hepatitis B positive, so vaccination of baby was done accordingly without delay. That complainant is abusing the process of law by complaining before various authorities and C.M. window did not take any action since there was no negligence on the part of ops. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
7. Op no.3 also filed written statement taking same preliminary objections as taken by op no.2 and also contested the complaint on merits on similar lines as of op no.2.
8. Ops no.4 and 5 also filed written statement taking certain preliminary objections. It is submitted that ops no.2 and 3 while treating the wife of complainant were working under the op no.1 and not in their individual capacity which is also clear from written statement of op no.1 and which absolve the answering op from any liability to indemnify the insured/ op no.2. It is submitted that op no.2 had obtained the individual insurance policy No. 272200/48/2020/147 for the period w.e.f. 3.4.2019 to 2.4.2020 and op no.3 had obtained individual insurance policy No. 272200/48/2019/18948 for the period w.e.f. 3.2.2019 to 2.2.2020. The liability of answering op to indemnify the insured/ op no.2 is subject to fulfillment of terms and conditions of the insurance policy. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made
9. The complainant in evidence has tendered his affidavit Ex. CW1/A, resolution of Welfare Trust Sirsa Ex.C1, legal notice Ex.C2 and copies of documents from mark A to mark S.
10. On the other hand, op no.1 has tendered affidavit of Sh. Raj Kumar Kamra, Administrator as Ex.R1, resolution tendered by complainant (Ex.C1) as Ex.R2 and ops no.1 and 2 have also tendered treatment record as Ex.RA, application moved by complainant mark RB. Op no.2 has tendered his affidavit Ex.R4. OP no.3 has tendered her affidavit Ex. RW3/A. OPs no.4 and 5 have tendered affidavit of Ms. Tuja Incharge Legal Hub as Ex.R5 and copies of insurance policies as marks C and D.
11. We have heard learned counsel for the parties and have gone through the case file carefully. During the course of arguments, learned counsel for ops no.1 to 3 have also placed on file treatment record of Smt. Babli wife of complainant.
12. The complainant has alleged that at the time of pregnancy of his wife, she was suffering from Hepatitis B but after delivery of the baby girl on 08.05.2019 the treating doctor/ staff of the op no.1 hospital mentioned the disease as HCV i.e. Hepatitis C positive on the file/ prescription slip of new born baby instead of Hepatitis B and as such required vaccination which ought to be administered upon newly born baby could not be injected to her rather the treatment of Hepatitis C was administered upon the newly born baby which is the gross medical negligence of the treating doctor of the op no.1 hospital. It is further alleged by complainant that due to above said medical negligence, the condition of newly born baby deteriorated and she also suffered internal side effects and weakness including vomiting and diarrhea and it adversely affected the health of newly born baby. On the contrary, it is the specific stand of the treating doctor of child i.e. op no.1 that only Hepatitis C was inadvertently mentioned on the file whereas there is no vaccination available for Hepatitis C and only vaccination of hepatitis B is available, which was duly administered to the child patient since her mother was having Hepatitis B. Op no.1 has further asserted that as no treatment of HCV is required, hence no treatment of HCV was given to baby and she was treated according to her condition and discharged on 13.05.2019 in stable condition. There is also nothing on file to suggest that newly born baby was given treatment of Hepatitis C. The complainant has not placed on file report of any other doctor to prove the fact that actually she was given treatment of Hepatitis C and that she was suffering from Hepatitis B. The complainant has failed to place on record any test report of the newly born baby that she was actually suffering from Hepatitis B whereas it is duly proved on record that her mother was suffering from Hepatitis B and only due to inadvertent mistake of the staff of the hospital Hepatitis C was mentioned on the file of newly born baby. It is pertinent to mention here that on the complaint moved by complainant on C.M. Window, an enquiry was got conducted from Medical Officer of Govt. Hospital and the Inquiry Officer Dr. Inderjeet Singh, Medical Officer Urban Dispensary, Sector 20, HUDA, Sirsa in his report mark K has reported that mother has history of hepatitis B (positive) but by mistake in baby file mentioned hepatitis C (positive) and at present there is no sign and symptoms of Hep. B in baby and she is fit and fine. The Inquiry Officer submitted his above said report to the Civil Surgeon, Sirsa. Thereafter, the Deputy Civil Surgeon, Civil Hospital, Sirsa in his report submitted that as per report of Inquiry Officer, there was a mistake on the part of Hospital/ Doctor as Hepatitis ‘C’ was written on admission file instead of Hepatitis B but when the treating doctor came to know the status, he ensured to give proper treatment to the baby and presently baby is fit without any sign and symptom of Hepatitis B. The Deputy Civil Surgeon also recommended that complaint may be filed with direction to the concerned Hospital/ Doctor to take care of such aspects in future and warning letter in this regard was issued to op no.1 doctor, the copy of which is placed on file as mark L. So from the above said reports, it is proved on record that vaccination of Hepatitis B was given to the baby girl and there is no medical negligence on the part of any of the ops no. 1 to 3. Though complainant has pleaded that wrong treatment was given to her daughter, but no such treatment was given as per report of the doctors. Only warning was issued for wrong mentioning of Hepatitis C by the staff/ doctor of the op no.1 but it was not a case of medical negligence. So, the complainant has failed to establish on record medical negligence of ops no.1 to 3 and has failed to substantiate his allegations against the ops no.1 to 3 through any cogent and convincing evidence. The complainant has failed to prove on record through any cogent and convincing evidence that condition of her daughter deteriorated as she was given wrong treatment of Hepatitis C. Further more, the doctors have also specifically asserted that no treatment regarding HCV positive was given to newly born baby as there is no treatment of HCV positive and only vaccination of baby was done because her mother was hepatitis B positive. Since, no case of medical negligence of the doctors of the op no.1 is proved on record through any cogent and convincing evidence, therefore, complaint of the complainant deserves dismissal.
13. In view of our above discussion, we do not find any merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member President,
Dated: 18.07.2023. District Consumer Disputes
Redressal Forum, Sirsa.
