Punjab

Faridkot

CC/17/396

Amrit Pal Singh - Complainant(s)

Versus

Kapoor Nursing Home Maternity center - Opp.Party(s)

Amit Kumar Mittal

04 Mar 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

 C. C. No. :              396 of 2017

 Date of Institution:    19.12.2017

 Date of Decision :     04.03.2020

 

1. Amritpal Singh aged about 29 years son of Jeet Singh resident of Village Rori Kapura, Tehsil Jaitu, District Faridkot.
2. Jagbir Singh aged about 1 year, minor son of Amritpal Singh through his guardian/next friend Amritpal Singh resident of Village Rori Kapura, Tehsil Jaitu, District Faridkot.

...Complainants

Versus

 

1. Kapoor Nursing Home Maternity Centre & Ultrasound Scan, Near Bus Stand, Kotkapura (B.L.Memorial Kapoor Nursing Home Maternity Centre and Ultra Sound Scan Centre).
2. Dr Usha Kapoor, MBBS, c/o Kapoor Nursing Home Maternity Centre & Ultrasound Scan, Near Bus Stand, Kotkapura (B.L.Memorial Kapoor Nursing Home Maternity Centre and Ultra Sound Scan Centre).

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3. Oriental Insurance Company Limited, Oriental House A-25/27, Asaf Ali Road, New Delhi.
4. Omega Centre, through Dr. Kamal Sharma, 18 Feet Road, Near Valmiki Chowk, Behind Sports Stadium, Bathinda.
5. Chandigarh Children and Maternity Hospital, through Dr. Sheena Gupta, Dr Samrat Sharma and Dr. Sikander Sharma, G T Road, Bathinda.

.....Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Smt Param Pal Kaur, Member.

 

Present: Sh Amit Mittal, Ld Counsel for Complainant,

              Sh Atul Gupta, Ld Counsel for OP-1 and OP-2,

              Sh Vinod Monga, Ld Counsel for OP-3,

              Sh Jatinder Bansal, Ld Counsel for OP-4.

              Sh Avtar Krishan, Ld Counsel for OP-5.

 

ORDER

(Ajit Aggarwal, President)

 

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Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to pay  Rs.18,00,000/-as compensation on account of medical negligence and for further directing OPs to pay Rs.50,000/- as compensation for deficiency in service, harassment, inconvenience, mental agony alongwith litigation expenses.

2                                     Briefly stated, the case of the complainants is that OP-1 runs a Multispecialty Hospital and OP-2 is Gynaecologist in that hospital. It is submitted that Sukhwant Kaur wife of complainant no.1 and mother of complainant no.2 was in family way and she was undertaking treatment from OP-2 and used to visit hospital/OP-1 time and again as advised by OP-2. Various tests were conducted upon Sukhwant Kaur wife of complainant no. 1 and ultimately, she was admitted in hospital of Ops on 16.01.2016 for delivery and at that time she was accompanied by her aunt Pritam Kaur, brother Nirmal Singh and Karamjit Kaur wife of brother of complainant no.1. Later on, father of complainant no.1 and father of his wife also reached there. It is submitted that during

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labour pains, condition of wife of complainant started deteriorating, but Ops handled her delivery very negligently without adopting the proper procedure. On 17.01.2017, at about 4.30 a.m. wife of complainant no.1 gave birth to a male child/complainant no.2 and when complainant no.2 said baby was handed over to relatives of complainant no.1, there were wounds and cut marks on the head and body of baby and when doctor was asked about said wounds and cuts, she took it lightly and told that such type of cuts and wounds used to happen during delivery time and asked them to get the child examined from some other child specialist if they desire, otherwise it was normal. Complainant no.1 got examined his child from Child Specialist/Op-4 and 5, who told that condition of child was serious and said cuts and wound injuries were serious for baby. On advise of OP-4, C.T. Scan of child was got conducted that showed that injuries to the brain were suggestive of Global Hypoxic Change with Subarachnoid Haemorrhage and it further endangered the growth and development of child and it could futher hamper the growth of child. It is further submitted that these cuts and wounds were caused on the face of child due to medical

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negligence of OP-2 as OP-2 used force and other instruments for the purpose of delivery of child. Meanwhile, condition of Sukhwant Kaur wife of complainant no.1 further deteriorated, but OP-2 once left the hospital after delivery at 4.30 a.m., did not come back to attend her again. Sukhwant Kaur was in severe pain and on raising alarm by relatives of complainant no.1, OP-2 arrived in hospital at 9.30 to see the Sukhwant Kaur, but her condition did not improve. Complainant no.1 requested doctor to refer his wife to some other doctor, but doctor/Op-2 did not pay any heed to his requests, but ultimately referred his wife to Guru Gobind Singh Medical College and Hospital, Faridkot and even did not give any proper diagnois in reference note. No medical team was sent by OP-2 alongwith patient and ultimately, Sukhwant Kaur wife of complainant no. 1, was admitted in Guru Gobind Singh Medical College and Hospital, Faridkot at about 11.25 a.m. At that time, her condition was worst. Doctors admitted her in Emergency Ward where it was found that there was internal bleeding of Sukhwant Kaur, which occurred due to negligence of OP-2. Said negligence was not treated by OP-2 in time and it lead to her death.

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Doctors in Guru Gobind Singh College and Hospital, Faridkot did their best to treat the patient but ultimately Sukhwant Kaur wife of complainant no.1 died at 12.45 p.m. Death of his wife occurred due to negligence in giving treatment by OP-2. OP-2 was rash and negligent in conducting delivery of his wife, which led to her death. OP-2 is not a surgeon and is not competent to do C-section. Delivery of child was not normal and OP-2 conducted the same with the help of instruments that caused cut marks and wounds on the head and body of baby. There is huge deficiency in service on the part of OP-2 that made two daughters and new born male child of complainant no.1 motherless and due to death of wife, life of complainant no.1 has been ruined. Complainant also moved application before Police regarding this, but all in vain. Complainant has prayed for directing Ops to pay Rs. 18 lacs to him as compensation for harassment suffered by him on account of death of his wife and Rs.50,000/-as cost of litigation.  Hence, the present complaint.

3                                              The counsel for complainant was heard with regard to admission of the complaint and vide order dated

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20.12.2017, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                               On receipt of the notice, the opposite party no. 1 and 2 filed written statement taking preliminary objections complaint in hand is not maintainable in the present form as no cause of action arises against answering OPs. There is no negligence or deficiency in service on the part of OPs and complainant has filed the present complaint with ulterior motive to extract money from them. Moreover, present complaint involves complicated questions of law and facts requiring lengthy evidence, which is not possible in the summary proceedings of Consumer Protection Act. It is further averred that complaint is bad for non joinder of necessary party as answering Ops are professionally insured with Oriental Insurance Company Limited without which present complaint is liable to be dismissed. Further averred that complainant no.1 moved an application against answering Ops before SSP, Faridkot regarding which detailed enquiry was got conducted by the SSP Office Faridkot through DSP, Kotkapura. Medical opinion of Civil Surgeon was taken and Board of

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doctors was constituted by Civil Surgeon, Faridkot, which gave report that there was no negligence on the part of OP-2 in her treatment. Ld Counsel for OP-1 and OP-2 have denied all the allegations of complainant no.1 and asserted that OP-2 never used any instruments during delivery except forceps. It is also denied that there were any cut marks or injuries on the head or body of new born baby. At the time of birth, answering Ops had used only forceps and minor bruises and laceration on face are usually caused by forceps. As alleged by complainant no.1 that injuries to brain which are suggestive of Global Hypoxic Change With Subarachnoid Haemorrhage are just apprehensions and there is no negligence on the part of OP-1 and 2. Complainant no. 2 is medically normal and moreover, answering Ops have not treated complainant no.2. Sukhwant Kaur was given best treatment as per prescribed medical practices and referring the patient to a bigger hospital for better treatment is not an act of negligence. Moreover, there is no post mortem report on file. Further averred that Sukhwant Kaur was in family way for the

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fifth time and all the medical precautions and requisite care was given to her. Proper record regarding procedure, medicine and tests performed upon her is maintained in the indoor file. It is denied that at the time of admission in hospital, she was accompanied by her brother and mother rather only Veerpal Kaur was with her and Sukhwant kaur was duly explained about all the treatment, investigation and operation under any kind of anaesthesia and everything was duly told to her in Punjabi and she gave her consent for this. It is admitted that Sukhwant Kaur was admitted in hospital on 16.01.2017 and at about 4.40 am, she gave birth to complainant no.2 and delivery was normal. Both Sukhwant Kaur and her son were normal and healthy and answering OP-2 examined them again on 7.00 a.m. and 7.30 a.m. and at that time Sukhwant Kaur was not having any headache or bleeding. Moreover, uterus was contracted and her general condition was normal. It is denied that relatives of complainant raised hue and cry regarding health of his wife, rather attendants of answering Ops apprised that Sukhwant Kaur

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was having headache and was bleeding Per/vagina and then, answering OP-2 immediately checked her and found that she was bleeding. OP-2 immediately started giving treatment to her asked Veerpal Kaur, who was attendant of Sukhwant Kaur at that time to arrange bottle of blood. It is further submitted that Sukhwant Kaur was already getting treatment from Dr Kamlesh Garg and as per report submitted by Sukhwant Kaur herself on 22.09.2016, they were told to arrange blood of O+ve group. Said Veerpal Kaur called up brother of Sukhwant Kaur and told him to arrange the blood. Answering Ops further told them to arrange blood from Civil Hospital, Kotkapura and also gave requisite form for arranging the blood alongwith blood sample. During this period, all medicines which were administered upon Sukhwant Kaur were also entered in Indoor file of OP-1, but till 10.30 am, brother of Sukhwant Kaur did not turn up. He neither brought blood nor came back and due to non transfusion of blood, her condition started deteriorating. She became critical only due to lack of arrangement of blood by her family members

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and not due to any negligence on the part of answering Ops. As blood was not arranged by her family members and her condition was getting more deteriorated, then, considering her condition, OP-2 referred her to Guru Gobind Singh Medical College and Hospital, Faridkot and OP-2 herself arranged ambulance and shifted her to GGS, Faridkot alongwith Veerpal Kaur. Sukhwant Kaur developed PPH (Primary Postpartum Haemorrhage) which is common complication after delivery in patients like Sukhwant Kaur who was pregnant for the fifth time and delivered her fifth sibling. It is further brought into notice that it is not possible to predict with certainty that which patient would have a Primary Postpartum Haemorrhage and major haemorrhage can very rapidly lead to maternal death which was the primary cause in the deterioration of her condition. There is no negligence or deficiency in service on the part of answering Ops in treating the wife of complainant no.1. All the other allegations and allegations with regard to relief sought too are

 

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denied being wrong and incorrect and prayer for dismissal of complaint with costs is made.

5                                           OP-3 filed written statement wherein took legal objections that present complaint is not maintainable in the present form and is liable to be dismissed. Complainant is not their consumer and complainants are barred by their act and conduct to file the present complaint and are not entitled for relief sought. OP-1 purchased the insurance policy bearing no.272200/48/2016/24550 valid for the period from 10.03.2016 to 09.03.2017 for Rs.10 lacs and OP-2 purchased insurance policy bearing no.272200/48/2017/8351 valid from 23.072016 to 22.07.2017 for Rs.5 lacs and these policies are payable subject to terms and conditions mentioned in them. In present case, no claim or loss was ever intimated by complainant or OP-1 and OP-2 and in the absence of any intimation, no investigation could be done which was mandatory as per rules. There is no privity of contract between complainant and answering OP. further averred that complicated questions of law and facts are involved in present complaint that require voluminous evidence which is not permissible

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in the summary procedure of this Forum and therefore, present complaint is required to be referred to Civil Court. Moreover, this Forum has no jurisdiction to hear and try the present complaint. However, on merits, OP-3 has denied all the allegations levelled by complainant being wrong and incorrect and reiterated that no intimation was given to OP-3 regarding the admission, Medical Tests, Medical Treatment allegedly taken by deceased from OP-1 and OP-2 and moreover, there is no proof that there is any deficiency in service on the part of OP-1 and OP-2. It is also denied that there was any negligence in performance of duty during treatment given by OP-1 and OP-2. It is asserted that there is no deficiency in service on their part and prayed for dismissal of present complaint with costs.

6                             OP-4 filed written statement through counsel wherein asserted that complainant has not levelled any allegations against answering OP and no relief is sought by complainant from him. Complaint involves complicated questions of law and facts requiring lengthy evidence which is not permissible in the summary procedure of Consumer Act and therefore, present complaint

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is required to be referred to Civil Court. All the allegations levelled by complainant are false and frivolous and there is no deficiency in service on their part. Further averred that answering OP is a well qualified doctor having master degree of Radiology with experience of more than 20 years. Answering OP cannot decide as to which scan is to be conducted and in the present case, Dr Jagjit Singh referred the child for CT Scan of head, which was properly conducted as per procedure because it is for the treating doctor to decide regarding line of treatment and regarding the tests to be conducted and otherwise also, the present case was regarding new born child in which CT Scan is preferred because this scan is very quick and referring/clinician gets an idea of brain status, any damage due to oxygen shortage and any injury during delivery or any other defect and moreover blood is better visualized on C T Scan. Most of the time, new born is on oxygen support and MRI Scan takes long time, so, it becomes risky for the child. For MRI patient requires to be stable and still, but a child keeps moving and to keep the child stable, sedation is required which is not advisable in case of small babies as monitoring the small babies inside

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MRI bore is not feasible. There is no deficiency in service on the part of OP-4 and prayer for dismissal of complaint is made.

7                                           OP-5 filed written statement wherein they have denied all the allegations levelled by complainant being wrong and incorrect and asserted that this Forum has no jurisdiction to hear and entertain the present complaint and complaint filed by complainant is totally misconceived and is not maintainable. Further averred that answering OP examined the complainant no.2 being child specialist and advised CT Scan of child only for his welfare as it can better visualize cranial bleeds and it takes less time than MRI and for more time, baby needs to be sedated, which is not safe for small baby. OP-5 did not comment on C T Scan report and asserted that complainant no.2 was properly treated by him and there is no deficiency in service or negligence on the part of OP-5 and it has been unnecessarily dragged in present complaint. Complainant has no locus standi to file the present complaint and it is bad for mis joinder of necessary parties. However, on merits. OP-5 have denied all the allegations being false and frivolous and asserted that it has nothing to do with the treatment

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given by OP-2. Child was treated properly and there is no complaint regarding treatment given by OP-5. It is reiterated that there is no deficiency in service on the part of OP-5 and prayed for dismissal of complaint with costs.

8                                               Parties were given proper opportunities to prove their respective case. Ld counsel for complainant tendered in evidence affidavit of complainant Ex.C-1, and documents Ex C-2 to C-27 and then, closed the evidence on behalf of complainant.

9                                               In order to rebut the evidence of the complainant, the Ld Counsel for OP-1 and OP-2 tendered in evidence affidavit of Dr. Usha Kapoor ExOP-1, 2/1 and documents Ex OP-1,2/ 2 to ExOP-1, 2/11 and then, closed the same on behalf of OP-1 and OP-2. Ld counsel for OP-3 tendered in evidence affidavit of Vikas Kataria Ex OP-3/1, copy of policy Ex OP-3/2 and then, also closed the same on behalf of OP-3. Ld counsel for OP-4 tendered in evidence affidavit of Dr.Kamal Sharma Ex OP-4/1, document Ex OP-4/2 and then, closed the same on behalf of OP-4. Ld counsel for OP-5 tendered

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in evidence affidavit of Dr. Jagjeet Singh ExOP-5/1 and closed the same on behalf of OP-5.

10                                    We have heard the learned counsel for the complainant as well as opposite parties and have very carefully gone through the affidavits and documents available on the file.

11                                    The case of complainants is that Sukhwant Kaur wife of complainant no.1 was in family way and she was taking treatment from OP-2. She was admitted in hospital of Ops on 16.01.2016 for delivery and at that time she was accompanied by her relatives. During delivery, condition of his wife started deteriorating, but Ops did not adopt proper procedure and handled her very rashly and negligently, on 17.01.2017, at about 4.30 a.m. she gave birth to a male child, who had wounds and cut marks on head and body and on asking about said wounds and cuts, doctor told that such type of cuts and wounds usually happen during delivery time and asked them to get the child examined from some other child specialist if they desire, otherwise it was normal. Complainant no.1 got examined his child

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from Child Specialist/Op-4 and 5, who told that condition of child was serious and said cuts and wound injuries were serious for baby. On advise of OP-4, C.T. Scan of child was got conducted that showed that injuries to the brain were suggestive of Global Hypoxic Change with Subarachnoid Haemorrhage and it further endangered the growth and development of child. These cuts and wounds were caused on the head and body of child due to negligence in using instruments by OP-2. Meanwhile, condition of Sukhwant Kaur further deteriorated, but OP-2 did not come back to attend her again. His wife was in severe pain. OP-2 arrived in hospital at 9.30 to see the Sukhwant Kaur, but her condition did not improve. Complainant has alleged that OP-2 did not pay any heed to their requests and ultimately referred his wife to Guru Gobind Singh Medical College and Hospital, Faridkot without giving proper diagnose in reference note. Sukhwant Kaur was admitted in Guru Gobind Singh Medical College and Hospital, Faridkot at about 11.25 a.m. where after checking her doctors told that there was internal bleeding, which occurred due to negligence of OP-2. OP-2 did not give proper treatment in time which lead to her death. Doctors in Guru

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Gobind Singh College and Hospital, Faridkot did their best to treat her, but ultimately She succumbed to her injuries and died at 12.45 p.m. Death of his wife occurred due to negligence on the part of OP-2. OP-2 was rash and negligent in conducting delivery of his wife, which caused her to die. There is deficiency in service on the part of OP-2 and complainant has prayed for compensation to the tune of Rs.18 lacs on account of death of his wife. In reply, OP-1 and 2 have denied all the allegations of complainant being wrong and incorrect and asserted that there is no negligence or deficiency in service on their part in conducting delivery of Sukhwant Kaur. It is brought before the Forum that on complaint moved by complainant no.1 against them before SSP, Faridkot, thorough enquiry and investigation was got conducted by the SSP Office Faridkot through DSP, Kotkapura. Medical opinion of Civil Surgeon was also taken in this regard to check the procedure adopted and medicines administered by them. Board of doctors constituted by Civil Surgeon, Faridkot, gave report that there was no negligence on the part of OP-2 in her treatment. OP-2 specifically denied that OP-2 used any instruments during delivery, rather only

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forceps were used to extract the child. No cut marks or injuries were there on the head or body of new born baby. At the time of birth, OP-2 had used only forceps and minor bruises and laceration on face are usually caused by forceps. Allegation of complainant no.1 that injuries to brain are suggestive of Global Hypoxic Change With Subarachnoid Haemorrhage, are just apprehensions and it is not true. There is no negligence on the part of OP-1 and 2. Child is normal and Sukhwant Kaur was also given best treatment as per prescribed medical practices and referring the patient to a bigger hospital for better treatment is not an act of negligence. There is no post mortem report on file. OP-1 and OP-2 stressed that Sukhwant Kaur was in family way for the fifth time and all the medical precautions and requisite care was given to her. They have maintained proper record regarding procedure adopted, medicines administered and tests performed upon her, in the indoor patient file. At the time of admission in hospital, she was not accompanied by her brother and mother, rather only Veerpal Kaur was with her and Sukhwant kaur was duly explained about all the treatment, investigation and operation under any kind of anaesthesia

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and everything was duly told to her in Punjabi and she gave her due consent for this. She was admitted in hospital on 16.01.2017 and at about 4.40 am, she gave birth to complainant no.2 and delivery was normal. Both mother and her son were normal and healthy and answering OP-2 examined them again on 7.00 a.m. and 7.30 a.m. and at that time Sukhwant Kaur was not having any headache or bleeding. Uterus was contracted and her general condition was normal. It is sternly denied that relatives of complainant raised hue and cry regarding health of his wife, rather attendants of answering Ops apprised that Sukhwant Kaur was having headache and was bleeding Per/vagina and then, OP-2 immediately checked and found that she was bleeding. OP-2 immediately started giving treatment to her and asked Veerpal Kaur, who was attendant of Sukhwant Kaur at that time to arrange blood. Said Veerpal Kaur called up brother of Sukhwant Kaur and told him to arrange the blood, but till 10.30 am, brother of Sukhwant Kaur neither brought blood nor came back and due to non transfusion of blood, her condition became worst. She became critical only due to lack of arrangement of blood by her family members and

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not due to any negligence on the part of Ops. Considering her critical condition, OP-2 referred her to Guru Gobind Singh Medical College and Hospital, Faridkot and OP-2 herself arranged ambulance and shifted her to GGS, Faridkot alongwith Veerpal Kaur. Sukhwant Kaur developed PPH (Primary Postpartum Haemorrhage) which is common complication after delivery in patients like Sukhwant Kaur who was pregnant for the fifth time and delivered her fifth sibling. It is further brought into notice that it is not possible to predict with certainty that which patient would have a Primary Postpartum Haemorrhage and major haemorrhage can very rapidly lead to maternal death which was the primary cause in the deterioration of her condition. There is no negligence or deficiency in service on the part of OP-1 and 2 in treating the wife of complainant no.1. All the other allegations are denied being wrong and incorrect and prayer for dismissal of complaint is made. As per OP-3, complainants are not their consumers and are not entitled for relief sought. As per terms and conditions of the policy, no claim or loss was ever intimated by complainant or OP-1 and OP-2 and in the absence of any intimation, no investigation could

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be done which was mandatory as per rules. There is no privity of contract between complainant and OP-3. OP-3 has denied all the allegations being wrong and incorrect and reiterated that no intimation was given to them regarding the admission, Medical Tests, Medical Treatment allegedly taken by deceased from OP-1 and OP-2 and moreover, there is no proof that there is any deficiency in service on the part of OP-1 and OP-2. There is no negligence in performance of duty during treatment given by OP-1 and OP-2. There is no deficiency in service on their part and prayed for dismissal of present complaint with costs. OP-4 asserted that allegations levelled by complainant are false, frivolous and there is no deficiency in service on their part. OP-4 is a well qualified doctor having master degree of Radiology with experience of more than 20 years. Dr Jagjit Singh referred the child for CT Scan of head, which was properly conducted as per procedure because it is for the treating doctor to decide regarding line of treatment and regarding the tests to be conducted and otherwise also, the present case was regarding new born child in which CT Scan is preferred because this scan is very quick and referring/clinician gets an

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idea of brain status, any damage due to oxygen shortage and any injury during delivery or any other defect and moreover blood is better visualized on C T Scan. Most of the time, new born is on oxygen support and MRI Scan takes long time, so, it becomes risky for the child. For MRI patient requires to be stable and still, but a child keeps moving and to keep the child stable, sedation is required which is not advisable in case of small babies as monitoring the small babies inside MRI bore is not feasible. There is no deficiency in service on the part of OP-4 and prayer for dismissal of complaint is made.                                        OP-5 has also denied all the allegations of complainant being incorrect and asserted that OP-5 examined the complainant no.2 being child specialist and advised CT Scan of child only for his welfare as it can better visualize cranial bleeds and it takes less time than MRI and for more time, baby needs to be sedated, which is not safer for small baby. OP-5 stressed that complainant no.2 was properly treated by him and there is no deficiency in service or negligence on the part of OP-5 Child was treated properly and there is no complaint regarding

 

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treatment given by OP-5. Op-5 also prayed for dismissal of complaint with costs.

12                                            From the careful perusal of Ex OP-1,2/7 which is copy of letter written by Sr Medical Officer, Civil Hospital, Kotkapura to Civil Surgeon, Faridkot regarding application moved by complainant no.1 against Op-2. Bare perusal of this document reveals the fact that there is no deficiency in service on the part of OP-2 in treating the wife of complainant no. 1. This document shows that case of wife of complainant was of Postpartum haemorrhage and it is most common in grand multiparity (five deliveries or more),  multi pregnancy, women with fibroids, pyhydraminos, placental praevia and in those who have had a long labour. It is proved by ld counsel for OP-1 and 2 that this was the fifth delivery of Sukhwant Kaur wife of complainant no.1. OP-2 did her best in giving treatment to her.  OP-2 made all efforts to effectively treat the patient and there is no deficiency in service on her part in treating the Sukhwant Kaur, moreover, relatives of complainant were told to arrange blood and due to non arrangement of blood by them in time, condition of Sukhwant

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Kaur deteriorated and there is no fault on the part of OP-2, rather OP-1 and 2 themselves arranged ambulance for patient and sent her to Guru Gobind Singh Medical College and Hospital, Faridkot. Further allegation of complainant that Op-2 used instruments in conducting delivery is also seems vague as board constituted by Civil Hospital, Faridkot has clarified vide its report that concerned doctor used only forceps in extracting the child and minor bruises and laceration on face are usually caused by forceps and are treated with application of 1% lotion mercurochrome. Moreover, from the investigation report OP-1, 2/9 given by Police Department, there remains no doubt that Dr Usha Kapoor strived best to treat the Sukhwant Kaur, she adopted correct procedure and there is no negligence on her part in conducting delivery of wife of complainant. There is no deficiency in service on the part of OP-1 and OP-2, rather there is major fault on the part of complainant and his family, because when condition of Sukhwant Kaur was becoming critical and she was in need of blood, there was no family member beside her except Veerpal Kaur, who called up brother of Sukhwant Kaur to arrange blood. OP-2 herself gave requisite form for

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arrangement of blood from Civil Hospital, Kotkapura, but said brother of Sukhwant Kaur neither brought blood nor came back and when condition of Sukhwant Kaur started deteriorating, OP-2 referred her to Guru Gobind Singh Medical College and Hospital, Faridkot and herself arranged ambulance for Sukhwant Kaur and her attendant Veerpal Kaur. At that time, at least one male member from her family was required to be there, but neither complainant no.1 himself nor anyone else was there to help and cooperate the patient and she died only due to non transfusion of blood by not making arrangement of blood by family of Sukhwant Kaur. With regard to allegations of injuries to complainant no.2, the complainants have not placed on record any evidence except C T Scan Report of OP-4 as Ex C-3 wherein in Impression, it is clearly mentioned that the findings of the plain C T Scan of brain are suggestive of Global Hypoxic Change with Subarachnoid Haemorrhage. They further gave note that please correlate clinically and investigate further and advised Radiological Follow Up. This report was to be confirmed by the treating doctor but treating doctor OP-5 nowhere diagnosed that complainant no.2

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suffered with any such injury and they have not given any treatment to complainant no.2 for said injuries. Except this C T Scan Report, complainant no. 1 has not produced any evidence with regard to alleged injuries of complainant no.2. Complainants have themselves produced photograph of new born baby/complainant no.2 as Ex C-25 and in this photograph no such injury marks are seen. So, complainants have failed to prove their allegations. OP-2 treated the patient appropriately as per best medical practices and there is no negligence or deficiency in service on the part of OP-2.

13                                       Ld Counsel for OP-1 and OP-2 pleaded that there is no negligence on the part of the Ops, they have done the best treatment which is available for the disease of complainant. The Counsel for the Ops argued that the complainant has not proved his case by any expert medical evidence and by mere allegations of medical negligence it cannot be proved. In his support he put reliance on the citation Usashi Mukherjee & anr Vs Coal India Ltd. And ors. 2010 (1) Consumer Law Today,136, in a case of Medical Negligence, it was observed by the Hon'ble National Consumer Disputes Redressal

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Commission, New Delhi that “medical negligence-Burden of proof- the onus to prove medical negligence lies largely on the claimant - the onus can be discharged by leading cogent evidence - a mere averment in complaint which is denied by the other side cannot be said to be evidence by which case of complainant can be said to be proved - it is the obligation of the complainant to provide the facta probanda as well as the facts probantia.” Ld. Counsel for the Ops argued that before the treatment, it was well informed to the complainant regarding the disease and her condition and she gave her consent for the same and after her consent the doctor started treatment. In his support he put reliance on the citation 2010 (4) Consumer Law Today, 126 titled as Vinay Kumar and others Vs Post Graduate Institute of Medical Education and Research, Chandigarh and another whereas the Hon’ble Consumer Disputes Redressal Commission Union Territory, Chandigarh, held that “Medical service-Medical negligence alleged-Surgery-Laparoscopic method-For removal of gallbladder which was having stones-there is consent letter signed by complainant no.1 giving his consent for surgery under his own risk and willingness-No evidence on record that treating doctor was no qualified to treat the patient or he did not follow the line of

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treatment as per medical norms or he did not take proper post operative care of the patient-Complainants have not been able to produce any evidence or medical opinion to prove their contention that the Pancreas of the deceased has been negligently cut or damaged by the treating doctors and that eventually caused Pancreatitis resulting in the death of the patient or any other medical negligence on the part of Ops-Complaint liable to be dismissed.” As such there is no negligence and carelessness on the part of the Ops. The Counsel for the complainant miserably failed to prove his case. There is no negligence on the part of the Ops and complainant file the present complaint only to extract money from the Ops and prayed that the present complaint may be dismissed with cost.

14                                   OPs further argued that complainant has filed false complaint to fetch money from the Ops. He put reliance on the citation 2014(3)Consumer Law Today, 9  titled as Vijay Dutt Vs Dr.R.D. Nagpal & others whereas Our Hon’ble National Commission, New Delhi observed that “Consumer Protection Act, 1986,Section 2(1)(g)-Medical Negligence -doctors cannot give a warranty of the perfection of their skill or a guarantee of cure and if the doctor has

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adopted the rightcourse of treatment and if he is skilled and has worked with a method and manner best suited to the patient, he cannot be blamed for negligence if the patient is not totally cured”. He also put reliance in citation 2010 (2) Consumer Law Today, 282 (S.C) titled Kusum Sharma & ors Vs Batra Hospital & Medical Research Centre & Ors whereas Our Hon’ble Apex Court laid down Basic principles regarding medical negligence which are reproduced as under:-

                             “On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-

I.       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.

 

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II.      Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III.    The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV.     A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V.    In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI.     The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the

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patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII.    Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. 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.

VIII.    It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX.    It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

 

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X.   The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

XI.   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. The interest and welfare of the patients have to be paramount for the medical professionals.

                   In para no.90 Our Hon’ble Apex Court has observed that                            ‘As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind’.

15                                                  We have thoroughly gone through file and evidence and pleadings put forward by respective parties and from the perusal of all documents placed on record and in view of

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above discussion, we come to the conclusion that there is no deficiency in service on the part of OP-1 and OP-2 as they have given best treatment as per best medical standards. They adopted appropriate procedure and during treatment no negligence is committed by them. Therefore, we are of considered opinion that present complaint is devoid of any merits and there is no deficiency in service on the part of OPs. Hence, complaint in hand is hereby dismissed. However, in peculiar circumstances of the case, there are no orders as to costs. Copy of order be supplied to the parties free of cost. File be consigned to record room.

Announced in Open Forum

Dated : 04.03.2020

(Parampal Kaur)                      (Ajit Aggarwal)         Member                                    President