Punjab

StateCommission

A/11/1227

Dr. Nancy Verma - Complainant(s)

Versus

Kailash Kumari - Opp.Party(s)

D.K.Gupta

20 Apr 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

(1)               First Appeal No.1227 of 2011

 

 

                                                          Date of Institution:16.08.2011  

                                                          Date of Decision:  20.04.2015

 

 

Dr. Nancy Verma, formerly deployed at Civil Hospital, Pathankot, now retired and residing at Shahpur Chowk, Pathankot, District Gurdaspur.     

                                                                                                                                                                    …..Appellant/Opposite party No.1

                                      Versus

 

 

1.      Kailash Kumari wife of Late Sh.Sukhdev Singh resident of      quarter no.4, Civil Hospital, Pathankot.

 

                                                                   …Respondent/Complainant

 

2.      Dr.Bhupinder Singh Kunwar, Civil Hospital, Pathankot.

3.      Civil Hospital, Pathankot, through its Incharge /SMO
 

                                                                                                                                                          ……Respondents/Opposite parties

 

         

First Appeal against order dated 14.06.2011 passed by the District Consumer Disputes Redressal Forum, Gurdaspur

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.    

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                            : Sh.D.K.Gupta, Advocate

          For the respondent No.1      : Sh.R.K.Arora Advocate

          For the respondent No.2      : Ex-parte

          For the respondent No.3      : None

 

          . . . . ……………………………………………………………….

 

                                             AND

 

(2)                        First Appeal No.1614 of 2011

 

                                                          Date of Institution: 08.11.2011  

                                                          Date of Decision:         20.04.2015

 

Kailash Kumari w/o Late Sh. Sukhdev Singh r/o Q. No.4, Civil Hospital Pathankot.

                                                                                                                                                                   …..Appellant/complainant   

 

                                      Versus

 

1.      Dr.Nancy Verma, formerly deployed at Civil Hospital,      Pathankot, now retired and residing at S         hahpur at Shahpur      Chowk, Pathankot, District Gurdaspur.

2.      Dr. Bhupinder Singh Kunwar, Civil Hospital, Pathankot.

3.      Civil Hospital, Pathankot through its Incharge/Senior Medical Officer.

                                                          ….Respondents/Opposite parties.

 

         

First Appeal against order dated 14.06.2011 passed by the District Consumer Disputes Redressal Forum, Gurdaspur.

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.    

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                             : Sh.R.K. Arora, Advocate

          For the respondent No.1      : Sh.D.K.Gupta Advocate

          For the respondent No.2      : Ex-parte

          For the respondent No.3      : None

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

          By this common judgment, we intend to dispose of the above referred two first appeals together, as they can be conveniently disposed of together, because they have arisen out of the same order dated 14.06.2011 of District Consumer Disputes Redressal Forum Gurdaspur. First Appeal No.1227 of 2011 has been filed by the appellant Dr.Nancy Verma (the opposite party no.1 in the complaint) against the respondents of this appeal (the complainant in the complaint), respondent no.2 and 3 of this appeal are (opposite party no.2 and 3 in the complaint), challenging order dated 14.06.2011 of District Consumer Forum Gurdaspur, accepting the complaint of Kailash Kumari complainant  and awarding the compensation of Rs.30,000/- against Dr. Nancy Verma now appellant in this appeal along with interest. The instant appeal No.1227 of 2011 has been filed by Dr. Nancy Verma  aggrieved by award of compensation of Rs.30,000/- against her and in favour of complainant Kailash Rani, whereas second connected First Appeal No. 1614 of 2011 has been filed by the complainant Kailash Kumari for the enhancement of the compensation. Both parties have preferred above two seperate appeals before this Commission against the order of District Forum Gurdaspur dated 14.06.2011.

2.      The complainant Kailash Kumari has filed this complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that her husband, who worked as Peon in the Civil Hospital Pathankot, was a diabetic patient for the last 7-8 years.  The husband of the complainant was taken to Civil Hospital Pathankot on 07.06.2002 for treatment, vide admission no.2149-104 after complying with the requisite formalities. The husband of the complainant was attended on by Dr. Nancy Verma after consultation with Dr. Bhupinder Singh. OP No.1 asked for blood sugar test for the husband of the complainant, which was conducted by the laboratory staff of Civil Hospital Pathankot and her blood sugar level was found as 450 mg/dl. OP No.1 administered insulin to her husband without going for any second blood sugar test from the private laboratory. The condition of the husband of the complainant worsened therewith and when his blood sugar level was got tested from the private laboratory at Pathankot, it was found to be 32 mg/dl which abnormally below the standard value. Report was shown to doctor on 08.06.2002 and her husband was again taken to Civil Hospital Patkhanot on 08.06.2002, wherefrom he was further referred to DMC Ludhiana for his further treatment. The complainant incurred expenses of rupees two lacs on the treatment of her husband. Her husband was discharged from DMC Ludhiana on 14.06.2002. On 16.11.2002 her husband was again taken to Civil Hospital Pathankot, where he was casually treated without giving any care to him. The complainant went to the house of OP No.2 on 17.11.2002 and got her husband examined from Asia Diagnostic Laboratory  on the same day and OP No.2 admitted him in the Civil Hospital Pathankot and he remained unattended there. OP No.2 rather misbehaved with the complainant and her sister and eventually the husband of the complainant expired on 18.11.2002, after his admission at Civil Hospital Pathankot. The complainant moved to Chairman Human Rights Commission for callous attitude of the OPs in treating her husband also. The complainant has alleged gross deficiency in service on the part of the OPs to take care of her husband  and prayed for compensation of Rs.20 lac from the OPs in the complaint.

3.      Upon notice, Ops appeared and filed the written reply and contested the complaint of the complainant vehemently. It was averred in the preliminary objections that complaint is vague, devoid of material particulars, without any cause of action and merits dismissal. It was vehemently stressed that the OPs are Government Servants, working in Civil Hospital Pathankot and hence, there is no relationship of consumer and service provider between them and the complainant under the Consumer Protection Act. The complainant has filed false complaint by misstating the facts against OPs. It was admitted that Sukhdev Singh, the husband of the complainant was brought to the hospital on 07.06.2002 between 2 PM to 3 PM and was admitted in emergency. He was a known case of diabetes for the last 7-8 years and was brought in the hospital with Altered Sensorium (not fully conscious) due to fluctuation of his glycemic level. He was attended to by Pharmacist Mr.Bedi and Sister Rita and intravenous line was maintained with DNS Fluid, which was neutralized with 12 units of insulin and no extra insulin was given and 25% dextrose was given, as the complainant was told that the deceased had consumed double dose of oral hypoglycemic drugs. After some time, Sukhdev Singh husband of the complainant regained consciousness and thereafter limca and tea were given to him and he was again advised for blood test. The patient Sukhdev Singh left the hospital at about 7 PM on the same day i.e. 07.06.2002 without any intimation. He was again brought in the hospital on 08.06.2002 at about 3.00 PM, when Dr.Indu Mahajan and Sister Anju Staff Nurse and Mr. Bedi Pharmacist were on duty. The patient was in unconscious state having convulsions at that time.  OP No.2 was called by Dr. Indu Mahajan, though OP No.2 was not on call duty and he attended the patient. The patient was having symptoms of Hypoglycemia, clinically and blood sample was taken and he was treated for hypoglycemia with 25% dextrose and other drugs. His blood sugar level was 32 mg/dl. He was treated for about two hours and then referred to DMC Hospital Ludhiana for further treatment. It was further averred that patient was discharged from DMC Hospital after 4/5 days in a satisfactory condition. He was again brought in the hospital of the OPs with complaint of vomiting. No treatment was taken by the patient in the hospital on 17.11.2002 or on 18.11.2002. He was admitted and was treated by Dr. J.C Kunda and file was prepared, when he was brought to hospital on 18.11.2002. The probable cause of his death was heart attack, which is the commonest complication in diabetic patients. The complainant moved wrong complaint to Human Rights Commission, which was found false by enquiry as conducted by Dr. S.K. Bansal Deputy Director. The complaint was resisted on the above-referred groundss by denying any deficiency in service  by the OPs. The OPs denied the status of the complainant as consumer of the OPs and they prayed for dismissal of the present complaint.

4.      The complainant tendered in evidence the affidavit of complainant Ex.C-1, affidavit of Santosh Kumari Ex.C-2, copy of Admission Record Ex.C-3, copy of Authorization for Operation and Procedures Ex.C-3/2, copy of bill for hospital charge Ex.C-3/3, copy of General Case Sheet Ex.C-4/1, copy of physical examination of patient Ex.C-4/2, copy of case history Ex.C-4/3, copy of medical document Ex.C-4/4, copy of Koz Clinical Laboratory Ex.C-5, copy of OPD Slip Ex.C-6, copy of Asia Diagnostic Laboratory Ex.C-7, copy of Admission Record Ex.C-8/1, copy of Bill for hospital charge Ex.C-8/2, copy of authorization for operation and procedures Ex.C-8/3, copy of general case sheet Ex.C-8/4. As against it, OPs tendered in evidence affidavit of Dr. Bhupinder Singh Kanwar Ex.R-1, copies of documents Ex.R-1 to Ex.R-4, copies of attendance report Ex.R-5 to Ex.R-11, copy of document of Punjab Health System Corporation Ex.R-12,   copy of Admission Record Ex.R-13 to Ex.R-14, affidavit of Dr.Nancy Verma Ex.R-15, copy of document of DMC Hospital Ludhiana regarding Altered Sensorium Ex.R-X/A. On conclusion of evidence and arguments, the District Forum Gurdaspur accepted the complaint of the complainant against OP No.1 Dr. Nancy Verma only, awarding the compensation of Rs. 30,000/- to the complainant against her. Dissatisfied with the order of the District Forum Gurdaspur dated 14.06.2011. First appeal No.1227 of 2011 has been preferred by Dr. Nancy Verma and second First Appeal No.1614 of 2011 has been preferred by complainant with regard to enhancement of the compensation.

5.      We have heard learned Counsel for the parties at considerable length and OP No.2 is exparte in this appeal and none has appeared on behalf of OP no.3 during the time of arguments in this appeal. We have examined the respective pleadings of the parties on the record in this case. Undisputedly, Sukhdev Singh husband of the complainant had been a diabetic patient for the last 7-8 years. He was brought to the Civil Hospital Pathankot on 07.06.2002. His blood sugar level was tested thereat by the laboratory attendants of the hospital, which was reported to be 450 mg, thereafter he was put on treatment to lower his glycemic level. When his blood sugar was again got tested from Private Laboratory, it had fallen to the abnormal level as 32.4 mg. He was referred to DMC Ludhiana for onwards treatment in this case. These facts are not in dispute in this case. The complainant Kailash Rani swore her affidavit Ex.C-1 on the record, imputing negligence on the part of the OPs in treating her husband. Affidavit of Santosh Kumari is Ex.C-2  on the record. Ex.C-3 is the Admission Record of Sukhdev Singh, vide Admission No.2149-104 dated 07.06.2002. It is recorded in it that he was suffering from Hypoglycemia. Thereafter, said patient was referred to DMC Ludhiana at 5.00 PM on 08.06.2002. Ex.C-3/2 is the authorization for operation and procedures for treatment, Ex.C-3/3 is the bill for hospital charges, Ex.C-4 is General Case Sheet, wherein it is recorded that he was patient of blood sugar and was referred to DMC Ludhiana from Civil Hospital Pathankot, Ex.C-4/3 to Ex.C-4/4 are also medical reports, Ex.C-5 is report of Koz Clinical Laboratory dated 8.6.2002 recording blood sugar level of 32.4, Ex.C-6 is prescription slip.

6.      On the basis of the above-referred documents, the submission of counsel for the complainant is that OPs have not taken proper precautions in taking care because Sukhdev Singh was a diabetic patient. The OPs administered insulin to him without taking test of his blood sugar level and as such, he suffered complications therewith. To counter it, OPs relied upon affidavit of Dr. Bhupinder Singh Kanwar Medical Specialist, which is on the record. He has denied any medical negligence on the part of the OPs in this case. He stated in his affidavit that Sukhdev Singh was brought to the hospital on 07.06.2002  and was admitted in emergency ward. He was a known case of diabetes for the last 7-8 years and was brought to the hospital with Altered Sensorium, which could be either due to Cerebrovasular Accident or due to fluctuation of sugar level. This witness further stated in his affidavit that Pharmacist Mr. Bedi and Sister Rita also attended him and intravenous line was maintained with DNS fluid, which was neutralized with 12 units of insulin, and no extra insulin was given and 25% dextrose was given to him, when complainant told that her husband (deceased) had consumed double dose of oral hypoglycemic drugs. He further stated that Sukhdev Singh was taking hypoglycemic drugs without any proper medical advice of any qualified doctor. He further stated that limca and tea were given to Sukhdev Singh and his blood sugar test was again advised. He further stated that on 08.06.2002  Dr. Indu Mahajan and Sister Anju Staff Nurse treated him  and his blood sugar level  was 32 mg and he was referred to DMC Ludhiana on that date. The treatment record of Sukhdev Singh are Ex.R-2 and Ex.R-3 as maintained in the hospital, Ex.R-6 to Ex.R-11 are the attendance reports, Ex.R-13 is record of Admission Record of Punjab Health Systems Corporation pertaining to admission of the Sukhdev Singh and on 18.11.2002 and he was declared dead. Similarly, other record has been examined by us on the file.

7.      We find force in the submission raised by counsel for OP No.1 Dr. Nancy that OPs are Government Hospitals and there is no relationship of consumer and service provider between the parties. The definition of Consumer has been provided under Section 2(i)(d) , "consumer" means any person who—

(i)  buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

 

8.      We find that Sukhdev Singh or complainant has not made any payment for the treatment of Sukhdev Singh  to the Ops. Mere nominal amount for registration of admission would not come into the category of the payment in the government hospital. Treatment in the government hospital is free of costs. Sukhdev Singh deceased was not a consumer nor complainant was a consumer of the OPs because no payment to hire their services was made by them. This  important aspect has been overlooked by the District Forum in this case. Undisputedly, government hospital falls within the category of Consumer Protection Act, provided  they have charged for rendering their services from the patient. Herein,  the counsel for the complainant is unable to produce any record regarding payment of any fee to the OPs by Sukhdev Singh or by the complainant. In government hospital, the treatment is provided free of costs and hence we are not convinced with the submission of counsel for Kailash Kumari complainant that there is relationship of consumer and service provider between the parties. No payment has been made by the complainant's side to hire the services of the OPs nor proved on the record and as such the complainant falls outside the purview of the Consumer Protection Act.

9.      Even on merits, we find that Dr. Nancy got blood sugar level tested from laboratory of the hospital, which was found to be 450 mg. This fact was not disclosed by the complainant's side that that Sukhdev Singh had already taken double dose of oral Hypoglycemic drugs. Had this fact been disclosed to her, then she must have given insulin to him proportionately. We do not find any negligence on the part of Dr. Nancy or the OPs in treating him. It is duty of the patient to give his complete history before any treatment is started. Sukhdev Singh was a known case of the diabetics for the last 7-8 years and he was exhibiting the symptoms of diabetes and was brought in the hospital with Altered Sensorium on account of fluctuation of sugar level or on account of brain attach. The Apex Court has held in Kusum Sharma & Others.. Vs… Batra Hospital & Medical Research Centre & Others  reported in AIR 2010 Supreme Court of India 1050 that , higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. A mere deviation from normal professional practice is not necessarily evidence of negligence. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession. Negligence is the breach of a duty exercised by omission to do something, which a reasonable man, guided by those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. A medical practitioner would be liable only, where his conduct fell below that of the standards of a reasonably competent  practitioner in his field. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. It would not be conducive to the efficiency of the medical profession, if no doctor could administer medicine without a halter round his neck. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients.

10.    As per our above observation by the Apex Court, we have come to this conclusion that there is no relationship proved  between Consumer and Service Provider between the parties on the record in this case, because the Ops are government hospitals and its doctors charge no payment for hiring their services and complainant has also failed to prove on the record any payment made to the OPs for hiring their services. Mere nominal payment of amount for registration fee would not fall into category of the hiring services for payment, which is for registration of the record only. Even otherwise, the patient himself had not disclosed the fact that he had taken double dose of oral hypoglycemic drugs from the treating doctor on that relevant day. The treating doctor administered insulin and got blood sugar level tested in the hospital lab. Glycemic level falls by administering insulin and it can not be ruled out. Blood sugar level of Sukhdev Singh plummeted  when insulin was administered to him. We find that order of the District Forum is not sustainable in this appeal and is liable to be reversed in this appeal because there is no relationship the consumer and service provider between the parties nor any gross negligence is proved on the part of the OPs.

11.    As a sequitur of our above discussion, we accept First Appeal No.1227 of 2011 filed by Dr. Nancy now appellant and by setting aside the order of District Forum dated 14.6.2011, we hereby dismiss the complaint of the complainant Kailash Rani. Similarly, First Appeal No.1614 of 2011 filed by Kailash Kumari is hereby dismissed by setting aside the order of District Forum Gurdaspur resulting into dismissal of her complaint.

12.    In First Appeal No.1227 of 2011, the appellant had deposited an amount of Rs.15,000/- in this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the appellant of this appeal by way of crossed cheque/demand draft after 45 days from receipt of copy of this order.

13.    Arguments in this appeal were heard on 15.04.2015 and the order was reserved. Now the order be communicated to the parties.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

15.    Copy of this order be placed in FA No.1614 of 2011.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                             (VINOD KUMAR GUPTA)                                                                          MEMBER

 

 

                                                          (HARCHARAN SINGH GURAM)

                                                                       MEMBER

 

April 20 2015.                                                             

(ravi)