Delhi

StateCommission

A/398/2015

SOM DATT MEDICAL CENTRE - Complainant(s)

Versus

MR. RAJ KUMAR PRASAD & ANR. - Opp.Party(s)

05 Feb 2020

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:­­­05.02.2020

                                                                                                              

                                                                   Date of decision:10.02.2020

 

First Appeal No.360/2015

         

IN THE MATTER OF

         

          RAJ KUMAR PRASAD

          S/o Late Sh. Gangu Prasad

          R/o S-608, Nehru Enclave School Block,

          Shakarpur, Delhi-110092

 

          Also at:

          Bar Library No. 1, Supreme Court of India,

          New Delhi

 

 

VERSUS

26770616410.  

SOM DATT MEDICAL CENTRE

S-524, School Block,

Shakarpur, Delhi-110092

 

DR. VARDHMAN JAIN

(Ortho Redician)

Som Datt Medical Centre

S-524, School Block,

Shakarpur, Delhi-110092

 

At present

No.1 Ansari Road, Dariyagang

New Delhi

 

DR. Y.K. KAUSHIK

•  

Som Datt Medical Centre

S-524, School Block,

Shakarpur, Delhi-110092

 

At Present

453, DDA Flats, M.S. Park,

Shahadara, Delhi

Present Shop

Goodlife Path Labs

1/27, 24 Ram Nagar, Loni Road,

Opp. Ahinsha Vatika, Delhi-32

 

First Appeal No.398/2015

 

IN THE MATTER OF

 

SOM DATT MEDICAL CENTRE

Through its Director,

S-524, School Block,

Shakarpur, Delhi-110092

 

Dr. Y.K. Kaushik

At Radio Diagnosis

Som Datt Medical Centre

S-524, School Block,

Shakarpur, Delhi-110092….Appellant

 

VERSUS

 

MR. RAJ KUMAR PRASAD

S/o Late Sh. Ganga Prasad

R/o S-608, Nehru Enclave,

School Block,

Shakarpur, Delhi-110092

 

DR. VARDHMAN JAIN

S-524, School Block,

Shakarpur, Delhi-110092                                            ....Respondent

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Sh. Lekh Raj Rahiliya, Counsel for the appellant with appellant in person in FA-360/2015

                   Sh. Sudesh Kumar Singh, Counsel for the respondent no. 1 and 3 in FA-360/2015

                   Sh. Abhinav Jain, Counsel for the respondent No. 2 in FA-360/2015

And

                   Sh. Sudesh Kumar Singh, Counsel for the appellant in FA-398/2015

                   Sh. Lekh Raj Rahiliya, Counsel for the respondent No.1 in FA-398/2015

                   Sh. Abhinav Jain, Counsel for the respondent No. 2 in FA-398/2015

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           These two appeals, between the same parties and assailing the same orders, were heard together and both are being disposed of by a common order hereinafter.
2.           The order dated 30.06.2015 passed by the District Consumer Disputes Redressal Forum (East) Delhi in CC-575/2013 in the matter of Raj Kumar Prasad versus Som Datt Medical Centre Delhi and ors, directing as under:-

 

Taking into consideration the observations and discussion made supra, we hold the respondent no. 1 and 3 guilty of medical negligence, unfair trade practice and deficient in providing services to the complainant. We award a compensation of Rs. 20,000/- to be payable by respondent no. 1 to the complainant. We further, direct the respondent no. 3 to pay Rs. 30,000/- to the complainant. This shall act as a deterrent to the doctors who indulge in malpractices for easy money making. The respondent no. 1 and 3 shall comply with the order within 45 days from the date of this order. If this amount is not paid to the complainant within 45 days from the date of the order, the complainant shall be entitled to interest @ 9% p.a. on the amount of compensation so awarded till it is finally paid to the complainant.

Copies of the order be supplied to the parties as per rule.

Let the copy of this order be sent to The Medical Council of India for taking necessary action against Som Datt Medical Centre against their ongoing unfair trade practices and for the cancellation of registration of respondent no. 3 from the Medical Council of India. A copy should also be sent to the Chief Secretary, Govt. of NCT of Delhi and also to the Ministry of Health, Govt. of India for necessary follow up action at their end. We direct that the action taken by the Medical Council of India and the Government shall be intimated to this Forum within two months from the date of this judgement.

 

has been assailed before this Commission under Section 15 of the Consumer Protection Act 1986 by both the parties, the complainant and the OPs, the complainant for the enhancement of the compensation and the OPs for setting aside the orders.

3.           Facts of the two cases necessary for the adjudication are these.
4.           FA-398/2015

The respondent no. 1/complainant having sustained injuries on 03.06.2013 after a fall due to slipping, visited the appellant Hospital and the said Hospital after undertaking the X-ray etc. opined that the complainant had “Left Leg AP & Lat. View”- Fracture of Lateral Comdyle of Tibia Seer. Inferior Se Posterior Calcanead Spurssee. No other bony lesion is identified.

The further allegation of the complainant/respondent no. 1 is that the appellant Hospital advised him surgery, his left leg bone having been fractured into two parts and estimated expenditure for the purpose was to the tune of Rs. 50,000/-. However on consulting the Jai Prakash Narayan Trauma Centre (AIIMS), Dr. Rishi Sethi observed that there was no fracture. The allegation of the complainant/respondent no. 1 is that the report of the appellant was deliberately prepared with the sole objective to extort money. This has led to mental harassment to him and thus for the redressal of his grievances he had filed a complaint before the District Forum which complaint having been disposed of with direction to the appellant, this appeal has been filed praying for setting aside the order.

5.           FA-360/2015

Facts of this case are identical. The complainant before the District Forum has assailed the orders before this Commission praying for enhancement of compensation as the compensation of Rs. 50,000/- allowed by the District Forum according to the complainant/appellant in FA-360/15 is too inadequate the meet the hardship and mental agony caused to them.

6.           Respondents in both the cases were noticed and reply has been filed resisting the appeal both on technical ground and on merit.
7.           Both the appeals were listed before this Commission for final hearing on 05.02.2020 when the counsel for both sides appeared and advanced their arguments in support of their pleadings. The counsel for appellant in FA-360/2015 pressed for enhancement of the compensation in the facts and circumstances of the case as according to him the compensation awarded is far less than they need to be allowed. The counsel for the appellant in FA-398/2015 on the other hand argued for setting aside the order as there has been no negligence on their part. I have perused the records of the case and given a careful consideration to the subject matter.
8.           Point for examination is whether the allegation of the negligence as against the Hospital survives in the facts and circumstances of the case. This leads to another question as to what is medical negligence. Medical negligence is a complicated subject and the liability of a doctor depends upon the facts and circumstances brought on record. There may be cases of apparent deficiency/negligence in service by the doctors. Such cases of negligence can be broadly categorised as under:

 

1. The doctor does not give immediate treatment when required.
2. The doctor does not take precaution as per the medical jurisprudence of giving the test dose of medicines which are likely to be fatal in some cases or may cause allergy.
3. The post-operative treatment is not given properly.
4. The surgical wound is caused at a different place than required.
5. After operation, septicaemia or gangrene takes place.
6. Improper prescription of drugs. In case of fever, without knowing the cause of fever, combination of tablets and injections for malaria, thypoid, etc are freely used on trial and error basis.
7. Medical instruments are left in the body.

Mal-practice by the doctors, such as uncalled for pathological reports or investigations prescribed.

 

9.           In the case of Achutrao Haribhau Khodwa & Ors. v. State of Maharashtra & Ors. reported in (1996) 2 SCC 634, Their Lordships observed that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable. Their Lordships further observed that if the doctor has taken proper precaution and despite that if the patient does not survive then the Court should be very slow in attributing negligence on the part of the doctor. It was held as follows:

 

"A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."

 

 

Similarly, the Hon’ble Supreme Court in the case of Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr. reported in (1998) 4 SCC 39 observed as follows:

"Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."

10. Further, there are allegations that in some cases where the surgery is not required, but the same is carried out, there is no pre-anaesthetic chek-up; delay in performing surgeries, there are certain instances of death on table; there are cases of hospital acquired infection which are not known to the consumers; some of the emergency cases not dealt with by the doctors promptly; transfusing wrong blood; performing a criminal abortion. In such cases, medical negligence being apparent medical practitioners would be liable to pay compensation or damages to the victim. Finally, what is expected from the medical practitioner is to take due care and caution while giving treatment as per the established medical jurisprudence. In other words, if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art, no question of deficiency would arise.
11. The Hon’ble Supreme Court of India in the matter of  V. Kishan Rao vs. Nikhil Super Specialty Hospital in Civil Appeal No.2641/2010 decided on 08.03.2010, as reported in JT [2010] 4 SC 630 held in para 47 of the judgement  as under:-

 

In a case where negligence is evident, the principle of re ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. The Hon’ble Court in para 54 of the judgment makes clear that before the Consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of For a especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the for a finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.

 

12. In Jacob Mathew’s case as reported in [2008] 6 SCC 1, the  Hon’ble Supreme Court observed as under:

 

“78. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. This court in Jacob Mathew’s case very aptly observed that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient."

 

13. In Jacob Mathew’s case (supra), conclusions summed up by the Hon’ble Supreme Court are very apt and some portions of which necessary for the adjudication of the case under consideration, are reproduced hereunder-

 

Negligence is the breach of 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 and 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.

Negligence in the context of medical profession necessarily call 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 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.

The standard to be applied for judging, whether the person charges has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.”

 

14. The National Commission in the case of 1 (1999) CPJ 13 (NC) titled Calcutta Medicare Research Institute versus Bimalesh Chatterjee and ors ruled that “the onus of proving medical negligence and resultant deficiency in service was clearly on the complainant which in the given case remains unsubstantiated.
15. The Hon’ble Apex Court in the matter of Kusum Sharma versus Batra Hospital as reported in (2010) 3 SCC 480, was pleased to hold as under:

 

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

 

16. Reverting back to the facts of the case, the complainant before the District Forum has built the edifice based on the observation of Dr. Rishi Sethi, observing that there was no fracture but there is no evidence of the said doctor and thus the reliance of his report in the given case would be misplaced, which means the entire edifice falls to the ground. Besides, in the OP Hospital only x-ray was done and no treatment. Mere on the x-ray report not followed by treatment one cannot allege or establish the negligence.
17.  At this stage I may advert to the report of the Delhi Medical Council. The said report posits as under:-

 

The Executive Committee perused the complaint and copy of medical records, as supplied by the complainant.

The Executive Committee observed that in spite of repeated notices calling upon the complainant to produce the x-ray film serial no. 1027 dated 04.06.2013 and x-ray film serial no. 9846 before the Executive Committee, the complainant has failed to produce the same in support of his complaint, till date, hence, the complaint stands dismissed for non-prosecution.”

 

18. The observation/report of the Delhi Medical Council has also given no findings on the allegation of the complainant alleging negligence on the part of the OPs the complainant not having taken up the matter with the council, which means and to put it differently the complainant has not been able to substantiate his allegation regarding negligence as against the Hospital.
19. Coming to the facts of the case, I may in the first instance deal with the objections of the OP 2-3 as contained in their written statement. Their objection that there being no consideration, no fee having been paid, the complainant is not a consumer, and thus not entitled to raise a consumer dispute, which objection relying of the judgment of the Hon’ble Supreme Court of India in the matter of Medical Association versus V.P. Shantha and ors as reported in AIR1996SC 550, is not sustainable. The Hon’ble Supreme Court in that case is pleased to hold as under:

 

In such a situation the persons belonging to “Poor class” who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the “Paying class”. Service rendered by the doctors and hospitals who render free service to poor patients and charge fees for others irrespective of the fact that part of the service is rendered free of charge would nevertheless fall within the ambit of the expression “service” as defined in Section 2(1) (o) of the Act.

Doctors working in the hospitals/nursing homes/dispensaries/whether Govt. or private charging fee to everybody availing service or charging fee for some and giving free service to poor would be covered by the definition of “service” under the Act and as such are amenable to the provisions of the Act along with the management of the hospital, etc. jointly and severally.

 

20. Having regard to the discussion done and legal principles having been explained I am of the considered view that negligence as against the Hospital is not established and if that be the case, the orders passed by the District Forum, holding that the Hospital and the doctor there, were negligent qua the complainant, cannot sustain and are accordingly set aside in totality. Accordingly appeal filed by the Hospital succeeds and simultaneously the complaint filed before the District Forum is dismissed leaving the parties to bear the cost.
21. The complaint before the District Forum having been dismissed in the preceding paragraph the appeal filed by the complainant praying for the enhancement of the compensation stands dismissed by implication with no orders as to cost.
22. Ordered accordingly.
23. Registrar of this Commission is requested to place on record the certified copy of this order in both the case files for records.
24. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information.
25.  File be consigned to records.

 

(ANIL SRIVASTAVA)

144616126.  

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