STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Surjit Singh s/o Late Sh. Pal Singh, aged 67 years, resident of H.No.2321, Sector 71, Mohali.

……Appellant

V e r s u s

1.        Mukat Hospital and Heart Institute (a unit of City Clinic Pvt. Ltd.), Sector 34, Chandigarh through its Administrator Smt. Madhu.

2.        Dr. G.S. Bhatia, Mukat Hospital and Heart Institute, Sector 34, Chandigarh.

              ....Respondents.

Appeal U/s 15 of Consumer Protection Act, 1986

BEFORE:          HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                        MRS. NEENA SANDHU, MEMBER.

Argued by:     Sh.Chaman Lal, Advocate for the appellant.                           Sh.Aftab Singh ,Advocate for respondent no.1.

Sh.Manvinder Singh, Advocate proxy for Sh. Amit Rawal, Advocate for respondent No.2.

JUDGMENT

PER  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT

1.        This appeal is directed against the order dated 20.08.2008, passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the complaint, filed by the complainant (now appellant).

2.        The complainant, being a retired Master Warrant Officer and an ex-serviceman, was competent, to avail of all the facilities, being provided by ECHS. Mukat Hospital and Heart Institute (OP-1), was an empanelled hospital, of ECHS. Joginder Kaur, wife of the complainant, was suffering from fever, in the month of May 2007. The complainant got her admitted for treatment, in OP-1 hospital, through ECHS, on 17.6.2007. Dr. G.S. Bhatia (OP-2), started the treatment of Joginder Kaur.  On 17.6.2007, the said doctor, got conducted certain tests, such as Haematology, RFT and LFT, to diagnose the problem, on the basis whereof, it was found that, the patient was suffering from infection problem, as test report for LFT revealed that, S.G.O.T and S.G.P.T were on the higher side, than the normal values.  On 18.6.2007 another test for RFT, Haematology and urine was conducted and the problem of infection, was again detected, as blood urea and TLC, had gone on the higher side, than the normal value and the figure/value, which test report dated 17.6.2007, depicted.  The HB of the patient had decreased to 8.5, which as per the report dated 17.06.2007, was 11.4. On 19.6.2007, another test for urine was conducted and report of the test was found to be normal, which showed puss cells on the higher side, than the normal values.  On 19.6.2007, test of USG Abdomen, was also got conducted  from Dr. Sodhi’s MRI & CT Scan Centre, Sector 33, Chandigarh and the test report was found normal. Thereafter, on 24.06.07, blood test was conducted and the report was also found normal.  On 26.6.2007, another test was conducted, to rule out the possibility of  ‘Widal’ and the report revealed the same to be negative.  The attending doctor again got conducted the scan of whole abdomen and chest, from Mercury Imaging Centre, Sector 8, Chandigarh and the report revealed no problem. However, chest report revealed that, the patient had Mediastinal Lymphadenopathy, with minimal B/L pleural thickening, meaning thereby that there was chest infection. The report also suggested, that it be co-related clinically, with other relevant investigations. The attending doctor, also got conducted test for anti tuberculosis (TB), from Thyrocare, (thyroid testing laboratory). The report was found to be normal. The report further suggested that it be co-related with the clinical conditions. Thereafter, Anti Nuclear Antibodies test was got conducted, from the above named Thyrocare Laboratory, and the test report was normal.  On 27.6.2007, the attending doctor got echo done and the report revealed mild pericardial effusion, which means that there was accumulation of fluid in the pericardial sack, Concentric LVH and Diastolic dysfunction of the left ventricle.  On 29.6.07, the attending doctor got Endoscopy of UGI (Upper Gastrointestinal) from Dr. Dhawan’s Laboratory, and the report revealed Esophageal Motility disorder and fungal erosion, which means that the patient was having problem in swallowing.  On 30.6.2007 biopsy of left cervical lymphnode from Dr. Jain’s Cancer Screening cum Research Centre, Chandigarh, was got conducted, and the said report was submitted on 4.7.2007 after the death of Joginder Kaur, patient. That report revealed that the patient was having problem of Paracortical hyperplasia (reactive lymphoid hyperplasia).  It was on 1.7.2007, that the patient Joginder Kaur was declared dead and the cause of death, as revealed, in the death summary, issued by OP-1, was cardiac respiratory arrest. It was stated by the complainant that, OP-1 had issued two death summaries, one on the occasion of delivery of the dead body, and another, after some days. The death summaries, so issued, were contradictory to each other, in as much as, one showed that, the patient developed cardiac pulmonary arrest at 7:30 a.m and the other showed that the patient developed cardiac respiratory arrest at 8:30 a.m. It was further stated that, the test reports and the treatment given to the patient, referred to above, were sufficient to establish the medical negligence, on the part of the OPs.  It was further stated that the patient was required to be attended by a heart specialist, to regularly treat her, but the OPs did not bother to provide her the services of a heart specialist. It was further stated that the Doctor had given `Lasix` 2ML injection, on the first day of admission of the patient, which was not needed. It was further stated that on 29.06.2007, the patient was given Propofol injection, which is short acting general anesthetic, which actually was not necessary, to be given to the patient, and when without necessity, it was given to the patient, it reacted and caused pain. It was further stated that, with a view to subside the pain, a Ketamine injection was given to the patient. It was further stated that on 01.07.2007, when the patient was declared dead, no Doctor attended on her, nor any medicine was given to her, before that. It was further stated that, since the death of the patient, occurred due to the medical negligence of the OPs, on account of the aforesaid reasons, they were deficient in rendering proper service, and, as such, were liable to compensate the complainant. They were many a time asked, to pay compensation but to no avail. When the grievance of the complainant was not redressed, left with no other alternative, he filed a Complaint under Section12 of the Consumer Protection Act,1986 (hereinafter to be called as the Act only).    

3.        The OPs (now respondents) were duly served, but despite service, neither they nor any duly authorized representative, on their behalf appeared. Accordingly, the OPs were proceeded against ex-parte, by the District Forum.

4.        After hearing the Counsel for the complainant, and, on  going through the  evidence and record of the case, the District  Forum, came to the conclusion, that there was no medical negligence, on the part of the OPs, in treating the wife of the complainant. Since, the OPs were not found deficient, in rendering service, the District Forum dismissed the complainant.

5.        Feeling aggrieved, the instant appeal, was filed by the Appellant/complainant. 

6.        We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

7.        The Counsel for the appellant, submitted that there was certainly medical negligence, on the part of the OPs, in treating the wife of the complainant. He further submitted that, two summaries of death, of the deceased, issued by the Doctors, were contradictory to each other, as in one death summary, it was stated that, the patient developed cardiac pulmonary arrest at 7:30 a.m., while the other showed that, the patient developed cardiac respiratory arrest at 8:30 a.m.  It was further submitted that, even on 1.7.2007 when the wife of the complainant was admitted in ICU, there was no doctor to attend and treat her, and also no medical record of that date was produced. He further submitted that, the OPs did not bother, to call a heart specialist, to treat the wife of the complainant. He further submitted that on 17.6.2007, the HB of the patient was within normal range, but it decreased on the next day i.e. on 18.06.2007, as per the test report, but the OPs did not bother to examine the reasons, as to why, the HB of the patient had decreased. He further submitted that, even the OPs did not monitor the blood pressure of the patient regularly. He further submitted that, on the first day of admission of the patient, the attending doctor had given Lasix 2 ML injection, though there was no such need. He further submitted that on 29.6.2007, the patient was given Propofol injection, which was short acting general anesthetic, but it had not been explained, as to why necessity had arisen, to give such an injection.  He further submitted that, chest scan report dated 26.6.2007, and ECHO report dated 27.6.2007, revealed that Joginder Kaur, patient, was not having acute heart problem, which could lead to cardiac pulmonary arrest and all this showed that, it was due to the drug reaction that sudden cardiac pulmonary arrest was suffered by the patient.  He further submitted that the aforesaid act, surely showed that the OPs were negligent, in treating the wife of the complainant. He further submitted that the OPs were deficient in rendering proper service, but the District Forum wrongly dismissed the complaint.

8.        On the other hand, the Counsel for the respondents, submitted that the Doctors, who treated the wife of the complainant, were well qualified. He further submitted that, the requisite tests of the wife of the complainant were got conducted, from time to time, by the OPs. He further submitted that ,due care was taken by the OPs, in treating the wife of the complainant. He further submitted that there was no contradiction in the death summaries, Annexures C-14 and C-15, as in C-14 (death summary), it was stated by the Doctor that, she developed Cardio Pulmonary arrest at 7.00 a.m. and, thus, she was put on ventilator, whereas in C-15, it was written by the Doctor that, she developed Cardiac Respiratory arrest at 8.30 a.m., but she could not revive, inspite of all resuscitative measures. He further submitted that, there was no medical negligence, on the part on the part of the OPs, in treating the wife of the complainant. He further submitted that, it was for the Doctors to decide, as to which injection was required to be given to the wife of the complainant. He further submitted that no opinion of the medical expert, was obtained, and submitted by the complainant, to prove that, the treatment which was given to his wife, was not correct, or that the OPs did not take due care and precautions, while treating his wife. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.

9.        After giving our thoughtful consideration, to the rival contentions, raised by the Counsel for the parties and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. In the case of Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC), it was held by the Apex Court that  medical negligence in the context of medical operation necessarily calls for treatment with difference, and simple lack of care, error of judgment or accident is no proof of negligence on the part of the medical professional. Failure to use special or extraordinary precautions, which might have prevented the particular happening, cannot be said to be a standard for judging the alleged negligence.  A physician would not assure the patient of full recovery in every case.  A surgeon cannot and does not guarantee that the result of the surgery would invariably be beneficial much less to the extent of 100% for the person operated upon. 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 reasonable 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. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient, as the professional reputation of the person, is at stake.  A single failure may cost him dear in his career.  Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitur.

10.      In the case of Laxman Balakrishan Joshi Vs. Trimbak Bapu Godbole & Anr.-AIR 1969 SC 128, the Apex Court laid down the criteria for determination of the professional duty of a medical man. The Hon’ble Supreme Court held that a person who holds himself out ready to give medical advice, and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.  Such a person when consulted by a patient owes himself certain duties viz. a duty to care, in deciding whether to undertake the case, a duty of care, in deciding what treatment to give or duty of care, in administration of that treatment. 

11.      Keeping in view, the principle of law, laid down, in the aforesaid cases, now let us see, as to whether, there was any medical negligence, on the part of the OPs and whether, they were deficient in rendering proper service, to the wife of the complainant. The authenticity and genuineness of the summary of treatment Annexure C-15 given by the OPs, to Joginder Kaur, aged 64 years, which is not disputed by the complainant even, is extracted hereunder :-

“Mrs. Joginder Kaur, Aged 64 years/F was admitted with H/o fever x 1 month and h/o weakness & loss of appetite.  Patient was put on antibiotics and antipyretics.  Patient developed itching & she was put on antiallergics.  She was investigated completely for PUO.  Her blood and urine cultures were sterile.  CECT chest and abdomen were done which showed mediastinal lymphadenopathy with Minimal B/L pleural thickening. She was subjected to (L) cervical lymph node biopsy done under GA. Blood test showed ­­ed TLC (Septicemia).  She underwent extended investigations for PUO.  ECHO was done to rule out infective Endocarditis.  UGI Endoscopy was done for her c/o dysphagia.  On 30th June 2007, the patient developed high grade fever with rigors & breathlessness. A clinical diagnosis of ARDS was made and she was shifted to the ICCU and nebulisation & O2 inhalation was started.  She developed severe Hypoxemia and was immediately intubated & started on mechanical ventilation.  She developed Cardiac Respiratory Arrest at 8:30 AM and was given CPR according to ACLS protocol for 45 minutes.  In spite of all resuscitative measures, the patient failed to revive.  Her pupils were fixed & dilated.  She was declared dead at 9:15 AM on 1.07.2007.”

12.      From the summary of treatment, referred to above, it is evident that, at the time of admission of Joginder Kaur, in OP-1 hospital, she had been having high fever for the last one month. She was very weak and had a loss of appetite. It was, under these circumstances, that she was put on antibiotics, antipyretics antiallergics.  Not only this, the OPs got various blood, urine, CECT Chest, abdomen tests etc. conducted on the patient  with a  view, to ensure proper treatment, to be provided to the wife of the complainant.  The medical tests offer a greater degree of help, to the Doctors, to properly diagnose the disease, from which the patient is suffering from. When the diagnose is properly done by the Doctor, then, certainly, correct treatment of the patient can be started, so as to ensure that he or she, recovers soon. Report of the test dated 17.06.2007, shows that the HB of the patient was 11.4, ESR 358, TLC 8400, Puss Cells 10-12, RBC 5-10, Epithelial Cells 2-3. There is an another test report dated 18.06.2007, according to which, the HB of the patient decreased from 11.4 to 8.5, Blood Urea increased to 80 and Serum Creatinine was 2.5. Then, abdomen test was got conducted from Dr. Sodhi`s MRI & CT Scan Centre, wherein the liver was shown to be normal in size. No mass or stone was seen in the Gall Bladder, Pancreas was normal in size and no Retroperitoneal mass or Lymphadenopathy was seen, Spleen was normal in size, both Kidneys were having normal size, shape and position. Thus, the overall report was normal. Again, on 26.06.2007, various tests of the wife of the complainant were got conducted from Dr. Rakesh Verma, M.D. of Mercury Imaging Centre and the reports in respect thereof, is Annexure C-7 and Annexure C-8. According to the report Annexure C-8, the Doctor found on the basis of CT findings that, Mediastinal lymphadenopathy with minimal B/L was there. Annexure C-9, another report of Thyrocare, was also obtained. From these reports, it is evident that the Doctor, who treated the wife of the complainant, was well qualified, skillful in his profession and competent enough.  It was not that, the wife of the complainant, was being treated by a `quack`, who could not properly diagnose her disease, which resulted into her death. It is also proved that the Doctor took due care in diagnosing the disease of the wife of the complainant on the basis of various tests referred to above. The injections, referred by the Counsel for the appellants, which were given by the Doctors, to the wife of the complainant, must have been found, to be necessary by them. The complainant could not be said to be medical expert, to determine, as to whether, the injections were necessary, to be given to her wife or not. No opinion of any other medical expert was produced by the complainant, to prove that the treatment, given to his wife/patient, was in any way wrong, or the OPs did not get the proper tests conducted, or no medical expert, treated her. In the absence of opinion of any other medical expert or any other medical evidence, it could not be said that the treatment given by the Doctors, to the wife of the complainant was, in any way, wrong. OP-2 i.e. Dr.  G.S. Bhatia, of Mukat Hospital, performed his duty in a careful manner. There is no evidence, on record, which could prove that, there was any medical negligence, on the part of the OPs. Even in the handwritten summary of death, it was only recorded that “the patient developed cardiac pulmonary arrest at 7 a.m.  Cardiac pulmonary arrest could have preceded cardiac respiratory arrest”. Thus in the second death summary, it was, in clear-cut terms, recorded that “the patient developed cardiac respiratory arrest at 8:30 a.m and she was given CPR according to ACLS protocol for 45 minutes and in spite of all resuscitative measures, the patient failed to revive and was declared dead at 9:15 a.m”. There was no contradiction or difference, in both the summaries of treatment, as suggested by the Counsel for the appellants. Even, the amount for providing medicines and treatment by the OPs, was paid by the complainant. Separate payment to Dr. G.S. Bhatia, OP-2 was also made by the complainant. The District Forum, thus, was right in holding that there was no medical negligence, on the part of OP No.2, Doctor of OP No.1, in treating the wife of the complainant. The District Forum was also right, in holding that, there was no deficiency, in rendering, proper service, to the wife of the complainant.  

13.      The order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.

14.      For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs quantified at Rs.3,000/-. The order of the District Forum is upheld.

15.      Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.

Pronounced.

02^nd May,  2011.

                                                                                                Sd/-

[JUSTICE SHAM SUNDER]

   PRESIDENT

               Sd/-                                     

  [NEENA SANDHU]

  MEMBER

Rg