DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)
GOVT. OF NCT OF DELHI
CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92
CC No.1038/2011:
In the matter of:
Smt. Nidhi Jain
D/o. Sh. Adishwar Jain
W/o. Sh. Vikas Deep Jain
R/o.2325, Sector – 15, Sonepat, Haryana
Complainant
Vs.
Jeevan Anmol Hospital
Mayur Vihar, Phase – I,
Delhi – 110 091
Dr.A.K.Sinha (The Treating Doctor)
C/o. Jeevan Anmol Hospital
Mayur Vihar, Phase – I,
Delhi – 110 091
United India Insurance Co.Ltd.
Capital Cinema Building, Opp. GPO,
Vidhan Sabha Marg, Lucknow – 226 001
Opposite Parties
Date of Admission : 13/01/2012
Date of Order :28/01/2015
ORDER
Ms. Poonam Malhotra, Member:
The brief conspectus of facts of the present complaint are that the father of the complainant expired on 19/12/2009 leaving behind two legal heirs namely Smt. Nidhi Jain, the complainant herein, and Shri Abhishek Jain, the brother of the present complainant. At the time of death, Sh. Adishwar Jain, the father of the complainant was in service of Central Warehousing Corporation and was earning about Rs.55,000/-p.m. On 19/12/2009 at about 04:00AM Sh. Adishwar Jain came to the Respondent No.I hospital with complaint of chest pain associated with ghabrahat and sweat and was admitted to the hospital under the observation of Respondent No.II. After preliminary investigations and ECG, he was diagnosed Acute Anterior Wall Myocardial Infraction. It is alleged that from 04:30AM till 11:45AM he was not given proper treatment. It is alleged that the hospital had no infrastructure, special ward and requisite facilities to treat patients suffering from myocardial infraction due to which neither the father of the complainant was treated with angioplasty nor any diagnostic tests were done. He was not referred to another hospital. At about 11:45AM the patient became breathless and frothing from mouth. He was diagnosed to have Cardio-respiratory arrest without conducting any necessary diagnosis. He was declared Dead at 12:45 PM. The complainant has alleged negligence and deficiency in service on the part of the Respondent Nos.I & II. She has prayed for a compensation of Rs.12,00,000/- towards pecuniary damages for loss of earning and Rs.5,00,000/- towards pain and suffering alongwith interest @15% p.m. from the date of filing of complaint till realization.
Notices were issued to the respondents. All the respondents have contested the present complaint and have filed their respective written versions.
In the written statement filed by Respondent No.I, it has raised the plea of limitation, non-joinder of her brother, the other legal heir of her father Sh. Adishwar Jain, and the United India Assurance Co. Ltd. as necessary parties to the present complaint. It has denied the allegations of negligence levelled by the complainant.
In the written statement filed by Respondent No.II besides raising the plea of limitation, it has contended that the complainant is not a consumer as defined in the The Consumer Protection Act, 1986 and has no locus standi to file the present complaint. The Respondent No.II has denied allegations of negligence in the treatment of Sh.Adishwar Jain and has refuted that he was deficient in providing services to him.
In the written statement filed by Respondent No.III, the Insurance Company, it is submitted that the Respondent Hospital had taken a Professional Indemnity (Medical Establishment) Policy for the period 17/05/2009 to 16/05/2010 to provide insurance protection to the doctors/ hospital against their legal liability and to pay damages arising out of negligence in the performance of their professional duties. It has also raised the plea that in view of the judgment of the Hon’ble Supreme Court in Martin D’Souza vs. Mohd. Ishfaq Civil Appeal No. 3541 of 2002 wherein following the dictum of Jacob Mathew’s case it has been held that the matter should be referred to a committee of doctors specialized in the field and it is only on their reporting a prima facie case of medical negligence that the notice should be issued. It has denied allegations of medical negligence and has also raised the plea of limitation.
Two applications one moved by the complainant for the impleadment of Dr. A.K.Sinha, the treating doctor, and the other application moved by the Respondent No.I for the impleadment of the United India Assurance Co. Ltd. as necessary parties to the present complaint were allowed vide Order dated 07/09/2012 and both Dr. A.K.Sinha, the treating doctor, and the United India Insurance Co. Ltd. were impleaded as necessary parties to the present complaint.
An application was moved on behalf of Respondent No.II for the constitution of a Medical Board for its expert opinion for examination of the present complaint for the allegations of medical negligence in view of the judgments of the Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab (2005) 6 SCC 1; Martin D’Souza vs. Mohd. Ishfaq (2009)3 SCC 1; &, V.Kishan Rao vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC 513.
Evidence by way of affidavit filed by the complainant and Respondent No.III only in support of their respective cases. No evidence by way of affidavit filed by Respondent Nos.I & II.
Heard and perused the record.
Before going into the merits of the present complaint, two issues need to be decided:
- The plea of limitation raised by all the respondents to the present complaint ; &,
- An application moved on behalf of Respondent No.II for the constitution of a Medical Board for its expert opinion for examination of the present complaint for the allegations of medical negligence in view of the judgments of the Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab (2005) 6 SCC 1; Martin D’Souza vs. Mohd. Ishfaq (2009) 3 SCC 1; &, V.Kishan Rao vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC 513 prior to the issuance of notice to the doctor/hospital.
With regard to the plea of limitation raised by all the respondents, on an indepth scrutiny of the record it has transpired that the present complaint was filed on 16/12/2011 well within the stipulated period of two years reckoning from 19/12/2009, the date on which the cause of action had arisen to the complainant. The present complaint, thus, falls within the limitation period prescribed under Section 24A of the The Consumer Protection Act, 1986. As such the plea of limitation raised by all the respondents is not tenable.
Coming to the issue mentioned supra at Seriatim No. (2), on perusal of the record it is not in dispute that the father of the complainant was brought to the Respondent Hospital on 19/12/2009 with complaint of chest pain associated with ghabrahat and sweat since 04:00 AM and was admitted to the respondent hospital on 19/12/2009 at about 05:30AM vide Admission No.22212. It is also not in dispute that he was attended to by Respondent No.II, Dr. A.K. Sinha, MBBS, D.T.C.D, Chest Specialist who diagnosed him to be suffering from Acute Anterior Wall Myocardial Infraction. The father of the complainant had cardio-respiratory arrest at about 12:05PM and was declared dead at 12:45 PM on 19/12/2009. In order to decide the application of the Respondent No.II we have thoroughly scrutinized the documents placed on record by the parties to the present lis. Dr. Anant K.Sinha, the Respondent No.II, has filed on record alongwith his Written Statement “Case Summary of the patient Sh. Adishwar Jain” as Annexure R-1 Paper Nos.12 and 13 of his written statement. The Case Summary issued by Dr. Anant K.Sinha on 14/06/2013 bears his signature and seal /stamp disclosing the fact that he is merely a MBBS, DTCD Chest Specialist. It is, thus, and admission by Respondent No.II that is a holder of only a Bachelor of Medicine and Surgery alongwith a Diploma in Tuberculosis and Chest Diseases (DTCD) and does not possess any post graduation specialization especially in the field of Cardiology so as to possess the specialized skill to handle cases of myocardial infraction and what to say of cases of Acute Myocardial infraction. It is further stated by Respondent No.II in Para 2 of the said Case Summary that after admission immediately he was treated as a case of Acute Coronary Syndrome and shifted to Intensive Care Unit and the primary emergency treatment for the same had started in the Casualty itself. This leaves no room for doubt that Dr. Anant K. Sinha who was only a physician was well aware of the condition of the patient now deceased and the fact that the situation warranted immediate medical attention of an expert and competent cardiologist. Not an iota of evidence has been placed on record by the Respondent No.II that after he had diagnosed the father of the complainant to be suffering from Acute Anterior Myocardial Infraction he had without losing any time called for any cardiologist of the Hospital competent to handle the case for further specialized treatment to meet the medical exigency nor had he taken steps to shift him to the Intensive Coronary Care Unit of the Hospital. Instead he kept the deceased under his treatment and shifted him to Intensive Care Unit only. Further no cogent documentary evidence has been placed on record by the Respondent Hospital to show that it was having a well qualified and competent team of Cardiologists and a separate Cardiology Wing fully equipped with all infrastructure and paraphernalia to treat cardiac patients and to meet all types of medical emergencies relating to cardiology. Taking into consideration the facts, observations and discussion made supra, there is not a scintilla of doubt that the Respondent Hospital was neither having any cardiologist on its roll /panel nor was it having any exclusive Cardiology Wing to treat cardiac patients. Further, in the present case, Dr. Sinha has failed to place on record any cogent documentary evidence to show that he ever informed the relatives/attendants about the deteriorating condition of the deceased and the fact that he needed to be shifted to some other hospital for treatment. He has also failed to substantiate his contention that after consultation with the relatives/attendants of the deceased a Cardiac Ambulance of Escorts Hospital was arranged for shifting him to that hospital but the same was cancelled as the relatives of the patient changed their mind. Infact, there is not an speck of evidence to show that Respondent No.II had ever suggested even faintly to the relatives/attendants of the deceased about the limitations of the Respondent Hospital and the fact that it was not an ideal place for treatment of patients suffering from myocardial infraction. On the contrary, he continued to treat the patient and, thus, by his conduct he conspired with the Respondent Hospital in its unfair practice of swindling money out of the pockets of the patients on the pretext of giving treatment to them in utter disregard of the precious human lives with which they were playing to satisfy their monetary greed.
In his application for the constitution of a Medical Board, Respondent No.II has placed reliance on the judgments of the Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab (2005) 6 SCC 1; Martin F. D’Souza vs. Mohd. Ishfaq (supra) and V. Kishan Rao vs. Nikhil Super Speciality Hospital and Another 2010 CTJ 868 (Supreme Court) (CP). It is significant to mention here that Respondent No.II has tried to read the judgment of V.Kishan Rao vs. Nikhil Super Speciality Hospital and Another (supra) wherein the other two judgments as mentioned above were referred to buttress his claim but on an indepth study of the judgment of V. Kishan Rao vs. Nikhil Super Speciality Hospital and Another (supra) it has been observed that the judgment of Martin F. D’Souza vs. Mohd. Ishfaq (supra) wherein the judgment of Jacob Mathew vs. State of Punjab (2005) 6 SCC 1 was relied upon has been overruled by the Hon’ble Apex Court and has further gone to hold that there cannot be a mechanical or strait jacket approach that each and every case of alleged medical negligence must be referred to experts for opinion. Expert Opinion is needed to be obtained only in appropriate cases of medical negligence and the matter may be left to the discretion of the Consumer Forums especially when retired Judges of the Supreme Court and High Courts are appointed to head the National Commission and the State Commissions. It is pertinent to mention here that each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. The Respondent No.II has tried to mislead this Forum by relying upon an extract of the judgment which gave strength to his contention and not reading the judgment as a whole. Taking into consideration the observations and discussion made supra, we arrive at an inference that the Respondent No.II has failed to act in a prudent manner as he did not possess the requisite and specialized skill to handle the case of the deceased which he professed to have possessed. Indeed, he had failed to observe the protocol of the medical profession while treating the deceased. In these circumstances, it is not necessary that cases must be referred for expert evidence, when the negligence on his part is apparent on the face of the record. In these circumstances, the judgment of V. Kishan Rao vs. Nikhil Super Speciality Hospital and Another (supra) will be of no aid to the Respondent No.II and the application moved by Respondent No.II is dismissed. In view of the above, the contention raised by the hospital of reference of the present complaint to a panel of doctors specialized in the field prior to the issuance of notice/s to the hospital/doctor is, thus, not tenable.
A stitch in time would have saved the life of the deceased. Had the doctor trounced his greed and taken a judicious decision to shift the deceased from the Respondent Hospital to a hospital equipped with all facilities to meet cardiac exigencies and to put him under the treatment and care of an expert cardiologist he would have saved a precious human life as in such situations every second gone without proper treatment counts heavily on the life of the patient. It is significant to mention here that human beings tend to submit their lives to the best of the judgment of their treating doctors without verifying his or her credentials on the belief that they are supposed to be qualified enough to meet any medical exigency arising out during the treatment for which they were approached and if such person, to whom the patient feels that he is the only one who can save their lives on earth after the God, does not observe the professional ethics he is supposed to follow then such treating doctor requires the severest of the punishment for violating the conjectural oath and the ethics of the medical profession. The above facts leave no room for doubt that the role played by the treating doctor in the treatment of the deceased is exceptionally unjustifiable and inexcusable.
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Hospitals undertaking treatment, when they are not having well qualified and competent doctors on its roll/panel and not well equipped, for their sole monetary gain should not be allowed to play with the lives of the people and the administration should very heavily come down upon them and take every possible stringent action to nail their malpractices by revoking the license of such establishments, may it be private hospitals or nursing homes or other hospitals. This be made a mandatory precondition for the grant of license that hospitals or nursing homes should be well equipped with all indispensable equipments etc. necessary to meet any medical exigency. We strongly feel that such doctors should be debarred from practicing as a doctor by the Medical Council of India by revoking their registrations for lifetime so as to preclude them from playing with the lives of the individuals. This is not only one case where inefficiency and negligence have come to the light of the courts. It is high time that the Medical Council should take stringent action against the erring members of the medical fraternity who have made this noble profession as means of extorting money from the masses who avail the services of the medical fraternity in their hour of distress.
Reverting back to the fact of the present complaint it is pertinent to mention here that the allegation of the Respondent No.II with regard to the complainant being a heavy smoker is also without any basis as it has not been supported by any entry to this effect while writing the history of the patient at the time of admission into the res. hospital.
With regard to the contention that the relief claimed by the complainant cannot be granted to her in piece meal as she has claimed her 50% share & no complaint has been filed by the other legal heir of the deceased, Sh. Abhishek Jain, the brother of the complainant herein. In the case in hand though the present complaint has been filed by Smt. Nidhi Jain, the aggrieved daughter of the deceased only but it is not out of place that her brother, Sh. Abhishek Jain, is equally distressed as Smt.Nidhi Jain and both of them have been deprived of the affection of their father and the vacuum created in their lives by the death of their father due to the malpractice of the Respondent Nos.I & II. As such even though Sh. Abhishek Jain is not a co-complainant in the present complaint he is equally entitled to relief alongwith the complainant being the other legal heir of the deceased. He is further restrained from filing any other complaint on the same facts and with the same cause of action as involved in the present complaint.
Further, in the case in hand, in view of the indemnity under the Professional Indemnity (Medical Establishment) Policy taken by the Respondent Hospital for the period 17/05/2009 to 16/05/2010 from the Respondent No.III which applies specifically to claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission or negligence in professional service rendered or which should have been rendered by the insured or qualified assistants named in the schedule or any nurse or technician employed by the insured the present complaint of the complainant is covered by the indemnity clause as the negligence of the respondent hospital and the treating doctor has resulted in the death of Sh. Adishwar Jain, the father of the complainant. As such the Respondent No.III is liable to compensate the complainant and her brother on behalf of the Respondent Hospital.
Taking into consideration the observations and discussion made supra we hold the Respondent Nos.I & II guilty of medical negligence, unfair trade practice and deficient in providing services to the father of the complainant. We award a compensation of Rs.5,00,000/- to be payable by the Respondent No.III on behalf of the Respondent No.I and this amount shall be shared equally by both the complainant and her brother, Sh. Abhishek Jain. We, further, direct the Respondent No.II to pay Rs.1,00,000/- to the complainant and her brother, Sh. Abhishek Jain which is also to be be shared equally by both of them. This shall act as a deterrent to the incompetent doctors not to indulge in treating patients when they do not possess the requisite skill. The respondents shall comply with the order within 45 days from the date of this order. If this amount is not paid within 45 days from the date of the order the complainant and her brother shall be entitled to interest @ 10% p.a. on the amount of compensation so awarded till it is finally paid to the complainant and her brother. Compensation claimed by the complainant on the ground of loss of future earning is not allowed to her as she is married and has no concern with the future earning of her father as no party can be allowed to make unjust enrichment.
Copies of the order be supplied to the parties as per rule.
Let the copy of this order be sent to The Medical Council of India for taking steps for the cancellation of the registration of the hospital as well as of the doctors. A copy should also be sent to the Chief Secretary, Govt. of NCT of Delhi and also to the Ministry of Health, Govt. of India for necessary follow up action at their end. We direct that the action taken by the The Medical Council of India and the Government shall be intimated to this Forum within two months from the date of this judgment.
(Poonam Malhotra) (N.A. Zaidi)
Member President
