Chandigarh

DF-I

CC/315/2021

Akhilesh Kumar Sinha - Complainant(s)

Versus

Max Hospital India Ltd. - Opp.Party(s)

In Person

11 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                            

Consumer Complaint No.	:	CC/315/2021
Date of Institution	:	12/05/2021
Date of Decision	:	11/09/2023

1. Akhilesh Kumar Sinha aged 57 years, son of Smt. Kapuro Sinha (now deceased), resident of H.No.2157, Sector 15-C, Entrance by Second Gate, Chandigarh 160015 (representing as Legal Heir of Mrs. Kapuro Sinha and himself)
2. Tarun Sinha aged 56 years, wife of Akhilesh Kumar Sinha, resident of H.No.2157, Sector 15-C, Entrance by Second Gate, Chandigarh 160015.
3. Vedansh Sinha, aged 19 years son of Akhilesh Kumar Sinha, resident of H.No.2157, Sector 15-C, Entrance by Second Gate, Chandigarh 160015.

… Complainants

V E R S U S

1. Max Hospital India Ltd. Regd. Office N-110, Panchsheel Park, New Delhi-110017 through its Chairman and Managing Director.
2. Max Super Speciality Hospital (A unit of Hometrail Buildtech Pvt. Ltd.), Near Civil Hospital, Phase 6, SAS Nagar (Mohali), Punjab 160055 through its Managing Director.
3. Max Super Speciality Hospital (A unit of Hometrail Buildtech Pvt. Ltd.), Near Civil Hospital, Phase 6, SAS Nagar (Mohali), Punjab 160055 through its Medical Superintendent.
4. Dr. Ramesh Kumar Sen, Senior Director and Head of Department, Institute of Orthopedic Surgery, Max Super Speciality Hospital (A unit of Hometrail Buildtech Pvt. Ltd.), Near Civil Hospital, Phase 6, SAS Nagar (Mohali), Punjab 160055.
5. Dr. Bansidhar Tarai, M.D. Senior Consultant & Head Microbiology, Max Super Speciality Hospital (A unit of Hometrail Buildtech Pvt. Ltd.), Near Civil Hospital, Phase 6, SAS Nagar (Mohali), Punjab 160055.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

 

 

ARGUED BY	:	Sh. Akhilesh Kumar Sinha, complainant No.1 in person and Mrs. Tarun Sinha, complainant No.2 in person and being parents of complainant No.3.
	:	Sh. Sankalp,  Advocate, Proxy for Sh. Saurabh Dalal, Advocate for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Akhilesh Kumar Sinha and others, complainants against the aforementioned opposite parties (hereinafter referred to as the OPs) in respect of medical negligence, deficiency in service and unfair trade practice on the part of OPs for not providing adequate medical treatment to Smt. Kapuro Sinha (now deceased), mother of complainant No.1.  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that on the evening of 19.5.2020 around 7:30 p.m., the mother of complainant No.1 namely Smt. Kapuro Sinha (hereinafter referred to as “patient”) had fallen down in the lawn of her house while she was strolling in the garden and she could not stand up on her own. Immediately, she was lifted by complainants No.1 & 3 and brought to her bed where cool pack therapy was given to her.  As there was lockdown in Chandigarh, complainant No.1 could manage to arrange portable x-ray from Medical Diagnosis Centre, Chandigarh on 22.5.2020 and on the same day around 3:00 p.m. x-ray was conducted and it was revealed that she had suffered right leg femur fracture. On 23.5.2020, complainant No.1 approached OP-1 hospital (hereinafter referred to as “treating hospital”) where he wanted to meet Dr.Ramesh Kumar Sen/OP-4 (hereinafter referred to as “treating doctor”) who was specialized in ortho surgery and at that time, only junior/assistant and Dr. Puneet attended complainant No.1 and after going through x-ray report, it had been opined that surgery was required which may take six days and there was package of surgery of patient by the hospital.  Complainant No.1 insisted to meet Dr.Ramesh Kumar Sen, but it was informed that he will only see the patient once she is admitted.  The rough estimate (Annexure C-2) for the total package was given as approximately ₹3,24,000/-.  At that time, patient was 91 years old and was suffering from eye and hearing problems. Thereafter the patient was brought to the treating hospital on 26.5.2020 in ambulance where she was admitted and an amount of ₹50,000/- was deposited as advance and complainant No.1 was asked to deposit ₹50,000/- more when the patient will be taken to the operation theatre on 27.5.2020 or 28.5.2020. The patient was allotted a single private room and receipt of advance amount deposited with OP-1 is Annexure C-3. However, the treating doctor did not turn up on 27.5.2020, rather another doctor came for treatment and she had put the right leg of the patient on traction with 4 kg. water weight. In fact, OP-4 had delegated his responsibility to the junior and did not attend the patient and in this manner OPs had not discharged their duty and function of diagnosis, advice and treatment as expected and the said act amounts to professional misconduct. In fact, a specialist like the treating doctor (OP-4) had to exercise high degree of care than a generalist. It was discussed by complainant No.1 with the hospital management to send the sample of COVID-19 test of the patient to PGI, Chandigarh which could save time, but, instead of sending the sample to PGI, OPs had taken the sample and informed complainant No.1 that they have sent the sample to Max Hospital, Delhi for testing. The swab of the sample was taken on 26.5.2020 and the same was received by the laboratory on 27.5.2020 and in the report (Annexure C-4), the patient was shown to be COVID-19 positive.  At evening time, when the patient was taking dinner, complainant No.1 was informed by the management of OPs that they had received WhatsApp message from Max Hospital, Saket, Delhi that the patient is COVID positive and as a result the patient came under trauma and she was shifted to another ward by the staff of the treating hospital in PPE kit and she remained in this painful and pathetic condition.  Immediately complainant No.1 attended a meeting with the management in their conference hall in presence of four doctors and it was discussed that the other blood sample be sent to the PGI, Chandigarh for testing and accordingly the sample of the patient was sent to PGI, Chandigarh.  In the meanwhile, due to aforesaid false report (Annexure C-4), complainants were asked to be in home quarantine by the authorities as a result of which they were also under tremendous trauma and pain. Thereafter, the blood samples of all the complainants were also taken for testing to PGI, Chandigarh but, strangely when the reports of the complainants and patient were received, all were found to be negative.  It is further alleged that before declaring the patient as COVID positive, OPs had conducted all other tests which were otherwise not required to be conducted prior to COVID test.  All the medical record of the patient was found fine, but, the things started misfiring after the patient was declared COVID positive on 27.5.2020 on the report of Max Hospital, Delhi. As per the record received from the OPs, it was disclosed that 26 doctors and 20 nurses had attended the patient, but, surprisingly all the aforesaid doctors or nurses who were in contact with the patient were not quarantined nor their tests were conducted. In this manner, administration of OP-1 had violated the standard laid down by the Ministry of Health and WHO. Despite of repeated requests of complainant No.1, patient was not shifted to PGI, Chandigarh, rather complainant No.1 was asked to leave the private room at 9:00 p.m. During this period, the patient was left all alone in the night in COVID isolation ICU with no attendant. On the basis of report (Annexure C-4), on 28.5.2020 at the instance of OP-1 hospital, UT MC Department & UT Health Department came to the residence of the complainants and put quarantine notice (Annexure C-10) and asked the complainants to head for General Hospital, Sector 16, Chandigarh for COVID testing, being family contact of the patient.  The complainants were also taken in ambulance for COVID sample check up in the aforesaid hospital with health workers in PPE kit and in this manner, atmosphere of dishonor and disgrace was created.  Not only this, even the right hands of the complainants were stamped with quarantine seal.  On 29.5.2020, at evening time complainants had received their reports from PGI declaring all of them negative. In this manner, all the complainants, including the patient, were found COVID negative and the wrong reports given by OPs had put the complainants in trauma as due to the said report even the complainants were put in illegal confinement.  It is further alleged that finally on 31.5.2020, complainant No.1 had decided that he would take his mother i.e. the patient to his home after getting her discharged from the treating hospital and for that purpose he went to the said hospital at 11:00 a.m. and met the patient and thereafter started discharge process of the patient.  Complainant No.1 cleared all the bills to the tune of ₹1,77,490/- and accordingly the patient was discharged from OP-1 hospital and was taken to her home.  Even the medical record which was supplied to complainant No.1 on his request by OP-1 has wrongly mentioned the mother of the complainant as divorcee instead of widow and the said false entry in the record had also shocked the complainants.  Due to the negligence on the part of OPs, the patient was brought home on 31.5.2020 and she breathed her last on 3.6.2020 as she was kept under heavy medical dose. The patient was perfectly fine till 27.5.2020 except that her leg was fractured, but, things started taking twist once she was admitted in the treating hospital where on her admission she was not found with any fever, cough, cold etc.  Thus, the aforesaid acts of the OPs amount to medical negligence, deficiency in service as well as unfair trade practice as neither the OPs had given proper treatment to the patient nor they had given correct COVID report qua the patient as a result of which all the complainants and the patient were put to unnecessary harassment. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their joint written version.  It is admitted that the patient was brought to the hospital with leg fracture for her treatment on 26.6.2020 and all the required treatment was given to her, but, denied that there was any medical negligence, deficiency in service or unfair trade practice on the part of OPs.  In fact, the patient and complainant No.1 were attended by Dr. Neha and Dr. Sagar who are the team members of Dr. R.K Sen and treated the patient to the best of their ability and skill.  In fact, complainants have got no knowledge about the complex medical procedure involved and have made false allegations against the OPs, especially when the treating doctors were holding masters and superspeciality degree in their respective fields.  All the tests which were required to be conducted before surgery were conducted immediately after admission of the patient and Dr.Sen maintained frequent telephonic communication after the patient was discharged on LAMA.  In fact, Dr. Sen himself being more than 60 years old was minimizing personal contact with people as much as possible.  As per x-ray evaluation, it was informed to the attendants that x-ray showed hip fracture and surgery was advised. Even the death of the patient is solely due to the reasons beyond the control of the OPs.  In fact, the patient remained unattended by the complainant for four days even after finding fracture on her hip in the x-ray on 22.5.2020 since the patient was brought to the hospital on 26.5.2020.  It is further alleged that best treatment was given to the patient immediately after her admission in the hospital. As COVID test was required to be conducted before heading for surgery, the same was conducted and the patient was found COVID positive.  Even the blood tests of the patient which were also conducted found with infection etc.  It is denied that the complainant No.1 was informed that the sample has been sent to Delhi. Immediately after receiving the sample report, complainants were informed about positive report.  However, it is alleged that the test reports are not 100% foolproof and there are a lot of variations and the Govt. has also acknowledged that 15-20% variation and in this manner OPs cannot be held to be negligent.  The operation of the fracture could not have been performed unless the patient was declared COVID negative and as consent for the operation was not given by the complainants, there was no medical negligence, deficiency in service or unfair trade practice on the part of the answering OPs.  The cause of action set up by the complainants is denied. The consumer complaint is sought to be contested.
3. In replication, complainants re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard complainants No.1 & 2 in person, learned counsel for OPs and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that on 26.5.2020, the patient was brought to OP-1 hospital i.e. the treating hospital for the treatment of fracture of right leg where she was admitted and on the same evening around 6:30 p.m. sample of the patient for COVID testing was collected and on the next evening i.e. on 27.5.2020, patient was reported to be COVID positive by OP-1, as is also evident from Annexure C-4 & C-6, and further on the very next evening sample of the patient was also collected for COVID testing by the PGI and on the same night around 11:30 p.m. she was declared COVID negative by the PGI, as is also evident from Annexure C-12, and further that due to the COVID positive report of the patient, the complainants being the family members of the patient as well as being in contact with her, were also brought to the General Hospital, Sector 16, Chandigarh for their COVID tests by affixing notice of home quarantine of the complainants by the Health Department w.e.f. 28.5.2020 to 10.6.2020, as is also evident from Annexure C-10 and further that all the complainants were declared COVID negative by the PGI, as is also evident from Annexure C-12 on 29.5.2020 and further that the patient was got discharged by complainant No.1 from OP-1 hospital on 31.5.2020 and the patient took her last breath on 3.6.2020, the case is reduced to a narrow compass as it is to be determined if the patient as well as the complainants were put into unnecessary harassment and all of them had suffered with mental pain and agony as the complainants were also asked to be on home quarantine due to the alleged wrong reports (Annexure C-4 & C-6) given by OP-1 qua patient as COVID positive and also that no proper treatment was given by the OPs to the patient during the period she remained admitted in the hospital as a result of which the patient also died due to the medical negligence, deficiency in service and unfair trade practice on the part of the OPs and the complainants are entitled for the reliefs prayed for in the consumer complaint, as is the case of complainants, or if the complainants have filed a false complaint and there was no medical negligence, deficiency in service or unfair trade practice on the part of the OPs and the consumer complaint is liable to be dismissed, as is the defence of the OPs. 
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the medical record/evidence, having been relied upon/led by the parties on record and the same is required to be scanned carefully in order to determine if there is any medical negligence on the part of OPs and the complainants are entitled to the reliefs prayed for in the consumer complaint.
   3. However, before scanning the evidence led by both the parties, it would be apposite to take note of the legal principle which would apply in the case of medical negligence and has been discussed by the Hon’ble Apex Court in various judgments.
   4. The Hon’ble Apex Court in Jacob Mathew v. State of Punjab and Another, III (2005) CPJ 9(SC), dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution, but, there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if:

(a)   either a person (doctor) did not possess the requisite skills which he professed to have possessed; or

(b)   he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. The Hon’ble Apex Court held as under:

“48. We sum up our conclusions as under:

(1)    Negligence is the breach of a duty caused 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”.

(2)    Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

        xxx                   xxx                   xxx

(4)    The test for determining medical negligence as laid down in Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586] holds good in its applicability in India.

                xxx                   xxx                   xxx

(8)    Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

 

5. The term “negligence” has been defined in Halsbury Laws of England (Fourth Edition) para 34 and as settled in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, I (2010) CPJ 29 (SC) as under:-

            “45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:

                      22.   Negligence.—Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

 

6. In para 89 of the judgment in the case of Kusum Sharma (supra), the tests of medical negligence while deciding whether the medical professional is guilty of medical negligence, varied tested principles have to be kept in view, the Hon’ble Apex Court held as under:-

“89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the 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:

1. 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.
2. 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.
3. 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.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. 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.
6. 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 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.
7. 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.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising 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.
11. 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.”

 

7. In Dr. Harish Kumar Khurana v. Joginder Singh and Others, (2021) 10 SCC 291, the Hon’ble Apex Court has held that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances. However, in an unfortunate case death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence.
8. Recently, the Hon’ble Apex Court has discussed and relied upon the aforesaid judgments in the case related to medical negligence in Chanda Rani Akhouri [Dr. (Mrs.)] & Ors. Vs. M.A. Methusethupathi [Dr.] & Ors., II (2022) CPJ 51 (SC) and has held as under :-

27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

28. The term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in the follow-up care, at any point of time by the treating doctors or anyone else, it is always open to be considered by the Courts/Commission taking note of the exposition of law laid down by this Court of which a detailed reference has been made and each case has to be examined on its own merits in accordance with law.”

9. In the case in hand, complainants have come with the plea that there is medical negligence on the part of OPs on two counts i.e.
   1. Firstly on account of false reports issued by the OP Hospital/Lab/OP-5; and
   2. Secondly on account of medical negligence of OPs, the patient and her family was put into tremendous trauma as a result of which the patient could not survive and the onus to prove the said fact lies on the complainant.

       (A) Wrong reports issued by OP Hospital/Lab/OP-5

10. So far as the case of the complainant that wrong report of the patient qua COVID-19, given by OPs is concerned, learned counsel for the complainants has drawn our attention to Annexure C-4 and C-6, both given by the OPs, and are contradictory to each other in the following manner :-
    1. Firstly in Annexure C-4 some portion of Annexure C-6 is missing in order to prove that the test was conducted at Mohali whereas Annexure C-6 indicates that the same was sent to Max Hospital, Delhi and the said claim of the complainant is denied by the OPs on the ground that the sample was never sent to Max Hospital, Delhi, rather the same was conducted in the Max Hospital, Mohali.  The missing portion of Annexure C-6 further makes it clear that, in fact, in order to justify their claim that the test was conducted at Mohali, OPs had issued report Annexure C-4 and made certain changes in Annexure C-6 which are missing in Annexure C-4 and the same are reproduced below for ready reference:-

 

 

 

 

 

 

 

 

 

 

2. Thus, one thing is clear from both the aforesaid COVID-19 lab investigation reports of the patient that Annexure C-6 was tampered later on by the OPs by adding the aforesaid portion, which was not at all there in Annexure C-4.  No doubt, in both the reports, patient has been declared as “COVID-19 (SARS Cov-2) positive”, but, as the Max Hospital, Mohali was not approved by the Indian Council of Medical Research (ICMR) for the said test on the relevant date i.e. on 26/27.5.2020 when the sample of patient was collected and report was given, as is also evident from Annexure C-23 through which ICMR had only approved the Max Lab, Max Super Speciality Hospital, Saket, New Delhi alongwith other hospitals at Delhi and had not approved the OP Lab i.e. Max Lab Max Super Speciality Hospital, Mohali, though other hospitals mentioned in the list of hospitals in Punjab were approved for the said tests and the OPs have also come with the specific defence that they had conducted the test of the patient at their hospital/lab at Mohali and not at Delhi, it is further clear that the OPs have violated the guidelines given by the ICMR i.e. conducted the COVID-19 test despite of the fact that their hospital/lab was not approved for such testing. 
3. Moreover, when both the aforesaid COVID-19 reports (Annexure C-4 & C-6) showing the patient was found positive further stood falsified by another report (Annexure C-12) which the complainant had got conducted from the PGI, Chandigarh lab after collecting sample of the patient from the OP Hospital/lab and that too was conducted on the very next day of receiving the report of the OPs, which was received on 27.5.2020, and the report was given by the PGI on 28.5.2020 showing that the patient was COVID-19 negative, especially when the aforesaid report (Annexure C-12) was not countered by the OPs by leading any evidence before this Commission.
4. In the light of the foregoing discussion, it is safe to hold that the OP Hospital/lab/OP-5 were negligent in giving wrong reports of the patient and the said act of the OPs 1 to 3 & 5 amounts to medical negligence on their part. 

(B)Medical negligence of OPs while treating the patient

11. Now coming to the second aspect of the case that there was medical negligence on the part of the OPs while treating the patient in their hospital and for that purpose the medical record, having been issued by the OPs and relied upon by both the parties alongwith other record, having been produced by the complainant, is required to be scanned carefully. 
    1. Annexure C-7 is the laboratory investigation report of the patient which clearly indicates that the blood grouping and RH factor, EDTA, renal profile (without urine), serum, liver function test profile, serum and urine routine and microscopy tests of the patient were found normal.  Not only this, even the other major organs of the patient were found normal by the OP Hospital, as is also evident from Annexure C-8 and the relevant portion of the report is reproduced below for ready reference :-

“Left Ventricle:

Left ventricular size and systolic function are normal. No regional wall motion abnormalities at rest.

Right Ventricle:

Right ventricular size, wall thickness and segmental wall motion are normal. Normal TAPSE. Normal RV systolic excursion velocity on TDI.

Atria:

LA normal sized. The right atrial size is normal.

Mitral Valve:

Mild posterior mitral annular calcification. There is no evidence of senosis or prolapse.

Tricuspid Valve:

The tricuspid valve leaflets are thin and pliable. Valve motion is normal

Aortic Valve:

The aortic valve is tri-leaflet, mildly sclerotic. PSG-8 mm Hg

Pulmonary Valve :

The pulmonary valve leaflets are thin and pliable. Valve motion is normal

No pulmonic valvular regurgitation

Great Vessels:

The aortic root is normal in size

Pericardium:

There is no pericardial effusion”

 

2. It is further clear from ECG (Annexure C-13A) that while conducting the ECG of the patient, OPs were so negligent and had conducted the same in a casual manner that they were not sure if the same was of the patient or of some third person as this fact stands proved from the first line of Annexure C-13A where the age of the patient has not been entered, assumed to be 50 years old for the purpose of ECG interpretation, sinus tachycardia, knowing fully well that the age of the patient was entered in the entire record of the hospital as 91 years.  Moreover, even the name of the patient has not been mentioned in Annexure C-13A.
3. Learned counsel for the complainants further drew our attention to the medical record showing that heavy doses were induced to the patient on 31.5.2020 as well as on 1.6.2020, which otherwise were not required to be given to the patient who was normal at that time and whose all parameters qua clinical pathology alongwith major organs were found normal by the OP Hospital before declaring the patient COVID-19 positive  In this manner, it stands proved on record that the OP Hospital firstly prepared wrong reports (Annexure C-4 & C-6) by declaring the patient, who was 91 years old at that time, as COVID-19 positive and even after receiving another report (Annexure C-12) from the PGI, Chandigarh, who found the patient COVID-19 negative, did not shift the patient from COVID ward to normal ward and kept her in the same ward for three days and thereafter conveyed complainant No.1 about the heart attack suffered by the patient in pursuance to the ECG (Annexure C-13A) showing unconfirmed diagnosis and thereafter induced heavy doses of medicines, as mentioned in Annexure C-17 & Annexure C-18, without proceeding with the treatment for which initially patient was admitted.
4. Not only this, even the evidence available on case file shows that the OPs 1 to 3 & 5 had also treated the patient with a very casual approach, knowing fully well that she was 91 years old lady, by firstly tampering with their own reports (Annexure C-4 & C-6), as discussed above, and thereafter had given treatment to the patient with heavy doses for the disease which she was not suffering and also on finding that all her pathology tests and major organs were found fit for surgery vide Annexure C-7 & C-8, it is clear that while opting the course of treatment, the medical protocol has not been followed by the treating doctors of the OP  Hospital to the best of their skill and with competence at their end.  However, the complainants have failed to establish any role of OP-4 who admittedly had not given any treatment to the patient.
5. Moreover, even the complainants, being family members of patient had suffered a lot due to the aforesaid wrong reports (Annexure C-4 & C-6) of the patient declaring her as COVID-19 positive, which was subsequently found as COVID-19 negative by another report (Annexure C-12) and also that due to the aforesaid wrong reports, all the complainants being family members and contacts of the patient were put into home quarantine by placing public notice at their home and also that all the complainants were found COVID-19 negative vide report (Annexure C-12).
12. As it stands proved on record that OPs 1 to 3 & 5 had firstly given aforesaid wrong reports (Annexure C-4 & C-6) and thereafter given wrong treatment to the patient by giving her medicines and treating her as COVID-19 positive patient, which she was not at all at that time, and thereafter had also given high doses for heart ailment, as a result of which the patient had suffered with mental and physical agony and harassment and all the complainants, being family members and contacts of the patient had also undergone mental trauma, as a result of which they were put into home quarantine in their homes, the present consumer complaint deserves to succeed against them.

Compensation

13. Coming to the question of compensation, the Hon’ble Apex Court in the catena of judgments has laid down different methods to determine ‘just and adequate compensation’. In Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 the Hon’ble Apex Court held as under :-

        “The lack of uniformity and consistency in awarding compensation has been a matter of grave concern… If different Tribunals calculate compensation differently on the same facts, the claimant, the litigant, the common man will be confused, perplexed, and bewildered. If there is significant divergence among Tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system.”

                xxx                   xxx                   xxx

        “While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation.”

 

14. Further, the Hon’ble Apex Court in Malay Kumar Ganguly v. Sukumar Mukherjee and Ors., III (2009) CPJ 17 (SC), clearly mentioned that there were problems with using a strait-jacket formula for determining the quantum of compensation. It clarified about the basis of computing compensation under common law lies in the principle of ‘restitutio in integrum’ which refers to ensuring that the person seeking damages due to a wrong committed to him/her is in the position that he/she would have been had the wrong not been committed. Thus the victim needs to be compensated for financial loss, future medical expenses and any suffering endured by the victim. By no stretch of imagination, the award shall not a paltry sum for gross negligence. It was held that there is no restriction that Courts can award compensation only up to what is demanded by the complainant.
15. In view of the foregoing discussion, we determine “medical negligence” and “deficiency” on the part of OPs 1 to 3 & 5 and in view of the peculiarity of the case and in order to meet the ends of justice, we are of the opinion that a lump sum amount of ₹5.00 lacs would be just, fair and reasonable compensation.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs 1 to 3 & 5 are directed as under :-

1. to pay lump sum amount of ₹5,00,000/- to the complainants alongwith interest @ 9% per annum from the date of institution of the present consumer complaint i.e. 12.5.2021 onwards, as compensation on account of the medical negligence as well as for the mental and physical pain and trauma suffered by the complainants and the amount spent by them on treatment of the patient and out of the aforesaid awarded amount, ₹4,50,000/- shall be paid by OPs 1 to 3 and the remaining ₹50,000/- shall be paid by OP-5.
2. to pay ₹10,000/- to the complainants as costs of litigation.

5. This order be complied with by the OPs 1 to 3 & 5 within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amount mentioned at Sr.No.(i) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(ii) above.  It is, however, made clear that the aforesaid awarded amounts shall be apportioned amongst the complainants in equal share.
6. Since no medical negligence or deficiency in service has proved against OP-4, the consumer complaint against him stands dismissed with no order as to costs. 
7. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
8. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 11/09/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member