BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.52 of 2014

Date of Instt. 10.02.2014

Date of Decision :20.02.2015

1. Bimla Devi widow of Faqir Chand;

2. Mukesh Kumar son of Faqir Chand;

3. Parvesh Kumar son of Faqir Chand;

4. Saroj daughter of Faqir Chand;

5. Sunaina daughter of Faqir Chand;

6. Aarti daughter of Faqir Chand;

7. Dhanvarsha daughter of Faqir Chand;

All residents of EC-149, Qazi Mohalla, Jalandhar City.

..........Complainants

Versus

1. M/s Guru Nanak Mission Hospital, Guru Nanak Chowk, Guru Nanak Marg, Jalandhar City (Punjab) through its Manager.

2. Dr.Varinder Mahi, M.D, C/o Guru Nanak Chowk, Guru Nanak Marg, Jalandhar City (Punjab).

3. M/s The New India Assurance Company Limited, Regd.Office:- New India Assurance Building, 87, MG Road, Fort, Mumbai-400001, Divisional Office:- Ist (360900), SCO 30-31, Ist Floor, PUDA Complex, Shri Guru Ramdas Divine Tower, Jalandhar (insurer of opposite party No.1 vide insurance policy No.36090436120200000017).

4. M/s National Insurance Company Limited, Regd.Office:-3, Middleton Street, Post Box No.9229, Kolkata-700071, Divisional Office:-Divisional Office-II (404304), 20, GT Road, Jalandhar (insurer of opposite party No.2 vide insurance policy No.404/304/46/ 12/8700000131).

.........Opposite parties

Complaint Under Section 12 & 14 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.MS Sachdev Adv., counsel for complainant.

Sh.AK Walia Adv., counsel for OPs No.1 & 2.

Sh.AK Arora Adv., counsel for OPs No.3 & 4.

Order

J.S Bhatia (President)

1. The complainants have filed the present complaint under section 12 & 14 of the Consumer Protection Act, against the opposite parties on the averments that the complainant No.1 is widow whereas the complainants No.2 & 3 are the dependent sons whereas the complainants No.5 yo 7 are the unmarried daughters of late Shri Faqir Chand while complainant No.4 is the divorcee daughter of Faqir Chand who at present is residing in her parental house after her divorce with her husband. Faqir Chand died on 23.9.2013 at the age of about 59 years. He was having robust health and was very active in his day to day work. He was dealing in the business of shoes and other leather products and was regularly doing the work and was earning more than Rs.2,00,000/- per annum approximately and he was likely to live till the age of more than 75 years as generally the life span in the family of complainants is to that age. On 20.9.2013 in the morning Faqir Chand (since deceased) suffered stomach pain and loose motions and he was immediately taken to Guru Nanak Mission Hospital, i.e opposite party No.1 for the purpose of medical treatment and accordingly, Faqir Chand was admitted in the hospital on 20.9.2013 at 7.00 Am and shifted to bed No.4 in the ICU. The patient Faqir Chand was kept in ICU and thereafter, shifted to a private room bearing No.206 on 21.9.2013 at 8.30 PM and it was told by the opposite party No.2, Dr.Varinder Mahi that Faqir Chand is alright and in due time, he would be perfect. However, this fact was never told by the opposite party No.2 that Faqir Chand was suffering from Platelets(Dengue). Had this fact been told by the opposite party No.2 then Faqir Chand should have been shifted to some other hospital where there was treatment for Dengue because admittedly treatment for Dengue disease and the concerned machines which are needed for said treatment, are not available in the hospital of opposite parties but instead of disclosing the truth to the complainants, the opposite party No.2 continued medically treating Faqir Chand knowing fully well that their hospital is not well equipped for treating the Dengue patients and also knowing fully well that the opposite parties were not having expertise and skill to deal with the Dengue patients. Admittedly, during the hospitalization, many tests were conducted and on conducing of said tests, it was found that infection upon Faqir Chand was increasing and his blood platelets were decreasing. However, even after seeing that the condition of Faqir Chand is deteriorating moment by moment, the opposite parties did not refer Faqir Chand to well equipped hospital where Dengue patient could be treated. Even this fact was not reported to Civil Hospital, Jalandhar that Faqir Chand was suffering from Dengue where Dengue treatment is available. Faqir Chand died on 23.9.2013 and at that time for the first time, the opposite party No.2 told the complainants that Faqir Chand was suffering from Dengue. On being asked as to why this fact was not previously disclosed to the complainants and why the treatment was continued in the hospital, opposite party No.1 and tests were being conducted knowing fully well that the opposite party No.2 and their hospital i.e opposite party No.1 did not have any proper treatment for the said disease but the opposite party No.2 was very rude and stated that he does not care. The original patient file at present is in the possession of the police, however, there were numerous tests which were got done by the opposite parties in the hospital and the reports qua those tests are lying in the hospital of the opposite party No.1 but the same are not being supplied by the opposite parties to the complainants even after specific demands made by the complainants to the opposite parties. The complainants intended to file civil and criminal litigation against the opposite parties but on the advise of their counsel, before initiating any litigation, they with an idea to avoid undue litigation, got served a legal notice dated 16.12.2013 which was posted on 18.12.2013 upon the opposite parties whereby the opposite parties were called upon to supply the documents as per guidelines of Medical Council of India but even after seeking the original documents or duly certified copies thereof concerning treatment of Faqir Chand, during his admission in the hospital of the opposite parties, the same have not been provided despite the fact that the opposite parties were duly served with the legal notice thereby showing that the opposite parties are manipulating the documentation hence on his score also, adverse inference has to be taken against the opposite parties. It is further to be mentioned that qua the incident, a DDR is already entered and viscera report is still awaited and as and when the viscera report would be received, the same would be filed before this Forum in due time. From the above detailed facts, it is clear that the opposite parties had been negligent in services and were not providing proper medical services and due to the said negligence and unfair trade practice on their behalf, the deceased had died on 23.9.2013. Had the opposite parties been vigilant and performed their duties properly and in case, they had no facilities available in their hospital and had referred to such a hospital having proper treatment/facilities qua Dengue patients, then deceased could have been surely saved. On such like averments, the complainants have prayed for Rs.19,50,000/- on account of compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed their written replies. In their written reply, opposite parties No.1 and 2 pleaded that the age of Faqir Chand at the time of admission with the opposite party No.1 was 55 years as per the verbal disclosure of the patient/his relatives. Faqir Chand at the time of admission with the opposite party No.1 was not having robust health and was not very active in his day to day work. He might have been suffering with several serious diseases. Medically, it is not possible that a patient develops sudden septicemia with marked increase in white blood cells (leukocytes) and a marked decrease in the platelets, grossly low hemoglobin and derangement of kidney functions within a few hours. The said Faqir Chand must have been ailing for sometime and was brought to the hospital when the patient became critically ill. As per available record with the opposite party No.1 and as per deceased attendant/relative the chief complaints of the said deceased were pain abdomen for last two days, difficulty in breathing (Dyspnoea), sweating at the time of admission. On 20.9.2013, on the admission of the said Faqir Chand immediately after general examination by the opposite party No.2 found the patient in a critical condition, so immediately shifted him to ICU of the opposite party No.1 and advised for several tests i.e Haemtological Report and in the report it was found that the said Faqir Chand was suffering from septicemia and thrombocytopenia i.e decrease in platelets counts. The test conducted for Dengue was negative. After examining the lab report the said Faqir Chand was prescribed and provided best possible treatment by the opposite parties No.1 & 2. He was provided with medicines i.e Inj.Pansi, Inj.Nubact, Inj.Plusline, Inj.Retorlix etc. The attendants of said Faqir Chand informed the conditions of the said Faqir Chand and were asked to shift the patient to other centre as the opposite party No.1 do not have the facility of blood bank. The attendants of the patient instead of shifting the patient to other centre insisted the opposite party No.2 to continue the treatment of the said patient in the hospital. As the attendants of the patient were not willing to shift the patient to other centre, so they were asked to arrange for units of single donor platelets(SDP) and the attendants brought the same and the platelet unit was infused. All necessary protocols were followed for treatment of the Faqir Chand. The opposite party No.2 and the other attending doctors of the opposite party No.1 verbally in general way informed the attendants of the Faqir Chand that the condition of the Faqir Chand is serious but due to the treatment provided it has somewhat improved and if they want to shift the patient to other hospital they can. But the attendants of the Faqir Chand did not take the Faqir Chand to other centre on their own discretion and showed faith in the opposite party no.1 & 2. On 21.9.2013 on the examination of repeat test of the platelets counts, it showed some improvement form 13000 to 20000 and the attendants of Faqir Chand were informed about the conditions of the Faqir Chand and asked/directed to arrange for two more units of single donor platelets (SDP), which the attendants brought and two units platelets were infused. All necessary protocols were followed for treatment of Faqir Chand. The opposite parties No.1 and 2 are fully competent and bear the necessary expertise in diagnosing and treating patients of Dengue. Several hundred Dengue patients have been treated by the opposite parties No.1 and 2. On 21.9.2013 the opposite party No.2 and the other attending doctors of the opposite party No.1 verbally in general way informed the attendants of the Faqir Chand that the condition of the Faqir Chand is still serious but due to the treatment it has somewhat improved, the electrolyte levels came to near normal i.e serum sodium from 125 to 132 and the platelet levels also showed a transient increase and if they want to shift to other hospital they can. But the attendants of the Faqir Chand on their own discretion did not take him to other centre and showed faith in the opposite parties No.1 and 2. After infusion of two more units of platelets and continues treatment on 21.9.2013 and when the condition of Faqir Chand improved then he was shifted to a private room No.206. On 22.9.2013, on the examination of repeat test of the platelets counts, it showed improvement from 20000 to 43000 and the other attending doctors of the opposite party No.1 verbally in general way informed the attendants of the Faqir Chand that the condition of the Faqir Chand is still serious but due to the treatment in has improved as the electrolyte levels came to near normal and the platelet levels also showed an increase but haemodynamic abnormalities persisted indicative of the ongoing disease process inside the patient's body. The opposite party No.1 did not report to District Civil Health Authorities, Jalandhar about the said patient because the test conducted for Dengue of the said patient was negative on 20.9.2013. On the morning of 23.9.2013 Faqir Chand succumbed to the disease process. On 23.9.2013 at 6.00 Am vital sign of the patient were stable as BP- 100/60, Pulse- 78, Temp- 98 Degree F, SPO 2 Oxygen Saturation = 99%. At 6.00 AM and at 8.00 AM the concerned nursing staff on duty gave the prescribed medicine to Faqir Chand. At about 8.30 AM and 10.00 AM the patient found to be gossiping with their attendants. Thereafter, the patient became serious and at 10.25 AM Inj.Deriphyllin, Inju.Efcorllin, Inj.Atropine were given and Cardio Pulmonary Resuscitation (CPR) started but the patient did not improve. As his SPO2 (Oxygen saturation) was decreasing so the patient was given Oxygen and Inj.Atropine and Inj.Deriphyllin were given, but the patient did not show any improvement and despite the best efforts of the opposite party No.2 and other staff of the opposite party No.1 Faqir Chand expired at 10.35 AM. The cause of death has not been determined by the postmortem report as several samples collected from the dead body of the Faqir Chand has been sent for the chemical examination by the doctors of the Civil Hospital who conducted the postmortem of the dead body of the deceased Faqir Chand. The cause of death will be ascertained on the examination of the chemical report of the said samples. The original file/record of the treatment of Faqir Chand was snatched away by the complainants from the staff of the opposite party No.1 Neither any document was ever demanded by the complainants from the opposite party No.1 at any time, nor there was any need to demand any document as all the concerned file was taken away from the staff of the opposite party No.1 forcefully by the complainants and handed over the same to the police. After intervention of the respectable persons and after investigation by the police concerned the said original file was handed over to the opposite party No.1 but still the same is not complete. They denied the other material averments of the complainant.

3. In its separate written reply, opposite party No.3 insurance company pleaded that the answering opposite party had issued Professional Indemnity Insurance (Medical Establishment) Policy bearing No.36090436120200000017 to M/s Guru Nank Mission Hospita Trust, Guru Nanak Chowk, Jalandhar, for the period 27.12.2012 to midnight of 26.10.2013 for a sum of Rs.10,00,000. However the liability in respect of anyone accident is maximum to the tune of Rs.3,00,000/-. They denied the other material averments of the complainant.

4. The written reply filed by opposite party No.4 is also on the same lines.

5. In support of her complaint, complainant has tendered copies of documents Ex.C1 to Ex.C44 (Ex.CE1 to Ex.CE44) and closed evidence.

6. On the other hand, learned counsel for opposite parties No.1 and 2 has tendered affidavits Ex.O1/A and Ex.O2/A alongwith copies of documents Ex.C1 to C24, Ex.C26, Ex.C27, Ex.O1/1 to Ex.O1/6 and closed evidence. Further learned counsel for the opposite party No.3 has tender affidavit Ex.OP3/A alongwith copies of documents Ex.OP3/1 and closed evidence. Further learned counsel for opposite party No.4 tendered affidavit Ex.OP4/A alongwith copies of documents Ex.OP4/1 and closed evidence.

7. We have carefully gone through the record and also heard the learned counsel for the parties and further gone through the written arguments submitted by both the parties.

8. Counsel for the complainants contended that patient was admitted in the opposite party hospital with stomach pain and lose motion and at that time he was not having any serious disease. He further contended that according to the opposite parties No.1 and 2, he responded to the treatment and remained conscious during hospitalization except for the last hours. He further contended that the patient died due to wrong treatment given by the attending doctor who could not control infection and as such the hospital and doctors are responsible for the death of Faqir Chand deceased. In support of his contention, learned counsel for the complainants has relied upon Dr.Balram Prasad Vs. Dr.Kunal Saha & Ors, Civil Appeal No.2867 of 2012 decided on 24.10.2013 by Hon'ble Supreme Court. We have carefully considered the above contentions advanced by learned counsel for the complainants. The above cited authority is on its own facts. It depends upon the facts and circumstance of the each case whether the complainant has been able to prove alleged medical negligence on the part of the opposite party hospital and its doctor or not. The law regarding medical negligence is well established. In KUSUM SHARMA & ORS VS BATRA HOSPITAL & MEDICAL RESEARCH CENTER & ORS 1(2010) CPC 29 (SC), the Hon'ble Supreme Court has held as under:-

" This Court in a landmark judgment in Jacob Mathew v. state of Punjab & Another, III (2005) CCR 9 (SC)=VI (2005) SLT 1=122(2005) DLT 83 (SC)=III (2005) CPJ 9 (SC)=(2005) 6SCC. 1 while dealing with the case of negligence by professionals also gave illustration of legal profession. The Court observed as under:

"In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances.

A’ physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the

defendant is to be. judged by the lowest standard that would be regarded as acceptable.”

It is a matter of common knowledge that after happening of unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medial professionals."

9. According to the pleaded version of the complainants, Faqir Chand was suffering from Dengue but on the other hand, the opposite parties No.1 and 2 have denied this fact. In their written reply, opposite party No.1 and 2 have pleaded that patient was suffering from septicemia with marked increase in while blood cells and marked decrease in the platelets and further the patient was having low hemoglobin and derangement of kidney functions. In para 3 of the complaint, the complainant have pleaded that on 20.9.2013 Faqir Chand (since deceased) suffered stomach pain and loose motions and he was immediately taken to Guru Nanak Mission Hospital, i.e opposite party No.1 for the purpose of medical treatment and accordingly, Faqir Chand was admitted in the hospital on 20.9.2013 at 7.00 Am and shifted to bed No.4 in the ICU. So immediately after admission in the hospital, the patient was shifted to ICU which tends to prove that at the time of admission, the condition of the patient was serious. According to medical treatment record, Ex.CE2 on 20.9.2013 the hemoglobin of the patient was 7.5 and whereas his TLC was 23,000 and platelet count was 13000. The fact that the patient was having TLC or white blood cell count of 23000 clearly indicates that he was having infection or septicemia. Hemoglobin and platelet count of the patient was also low. Further from the treatment record Ex.CE5 and Ex.CE6, it is also evident that in the hospital during treatment platelets were infused. From the Hematological Report Ex.CE15 it is evident that platelet count of the patient increased to 20,000 and further from the report Ex.CE17 it is evident the platelet count further increased to 43000. It is also in the affidavit Ex.O1/A of Dr.Rajesh Saini, Medical Superintendent of opposite party No.1 hospital that as per record of opposite party on 22.9.2013 on the examination of repeat test of platelets counts, it showed improvement from 20000 to 43000. It is further in his affidavit that opposite party No.1 did not report to the District Civil Health Authorities, Jalandhar about the patient because the test conducted for Dengue of the said patient was negative on 20.9.2013. So patient was not suffering from Dengue. However, his while blood cell count was higher indicating infection or septicemia. Learned counsel for the complainants has not pointed out as to what wrong treatment was given by opposite parties No.1 and 2 to the patient during his hospitalization till death. It is further in the above affidavit of Dr.Rajesh Saini that on 23.9.2013 at 6.00 AM vital sign of the patient were stable and at about 8.30 AM and 10.00 AM the patient was found to be gossiping with their attendants and thereafter, the patient became serious. The attending doctor and staff gave treatment to the patient but he did not show any improvement and ultimately expired at 10.35 AM on the said date i.e 23.9.2013. So ultimately Faqir Chand succumbed to disease process. The complainants have not led any expert evidence to show that there was any negligence in the treatment of the patient or as to what was the exact cause of death of the patient and that the cause of death of patient was attributable to any negligence on the part of opposite parties No.1 and 2. The complainants have not lead any reliable evidence to prove any medical negligence on the part of the opposite parties No.1 and 2. If unfortunately the patient did not survive, the opposite parties No. 1 and 2 can not be blamed for the same.

10. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

20.02.2015 Member President