Haryana

Yamunanagar

CC/767/2013

Rooma Devi W/o Mohan Singh yadav S/o Hansa Yadav - Complainant(s)

Versus

Narang Clinic - Opp.Party(s)

P.K.Lehna

25 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR AT JAGADHRI.

                                                                  

                                                          Complaint No.767 of 2013.

                                                          Date of institution:15.10.2013.

                                                          Date of decision:25.9.2017.

 

Smt. Rooma Devi w/o Sh.Mohan Yadav, since deceased now represented through her legal heirs

i)       Saurabh (minor son)

ii)      Pooja Rani (minor daughter)

iii)     Sachin (minor son)

iv)     Rahul (minor son) all being minors represented through their father and natural guardian Sh.Mohan Singh Yadav son of Sh.Hansa Yadav, resident of H.No.307, Ward No.29/15, Anand Colony, Garhi Road, Yamuna Nagar.

                                                                                      …Complainant.

                                  Versus.

 

1.       Narang Clinic, Garhi Road old Hamida Yamuna Nagar.

2.       Dr.Gulshan Narang, Garhi Road, old Hamida Yamuna Nagar.

3.       United India Insurance Company Ltd. Presently situated at 60 Janpath New Delhi 110001.

                                                                                       … Respondents.

BEFORE:   SH.SATPAL, PRESIDENT,

       SH.S.C.SHARMA, PRESIDING MEMBER.     

                   SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Sh.P.K.Lehna, Adv.for complainant.

    Sh.D.P.Bhatnagar, Adv. for Ops No.1 & 3.

    Sh.Rajiv Gupta, Adv. for Op No.2.

 

ORDER: (SATPAL, PRESIDENT)

                            

1.                Complainants have filed this complaint Under Section 12 of the Consumer Protection Act 1986 against the respondents (hereinafter the respondents shall be referred as OPS).

2.                Brief facts of the complaint as alleged by the complainant are that on 17.1.2013, the Rooma Devi (now deceased) was suffering from loose motion and vomiting and taken to the OP No.1 for her treatment and got admitted with the OP No.1.  OP No.2 gave some injections, some medicines and Glucose to Smt. Rooma Devi (now deceased) during her stay in the clinic.  She remained admitted in the with the OP No.1 up to 23.1.2013 but during this period the condition of Smt. Rooma Devi (now deceased) instead of improving became from bad to worse. Seeing, the condition of the deceased Rooma her husband of deceased Rooma Devi requested the doctor to shift her to another hospital but the Ops always assured the husband of the complainant that there was nothing to worry about and assured that she would get recover soon.  On 23.1.2013 the condition of deceased Rooma turned critical and she became serious and only then the OP No.2 took her to the hospital of Dr.Ish Chadha in Yamuna Nagar who after noticing the critical condition of the deceased Rooma, advised the Op No.2 to take the deceased Rooma to PGI but even then the Op No.2 instead of taking her there took her to the hospital of Dr.R.K.Gupta, who also advised to took the deceased Rooma to PGI, Chandigarh and only then the Op No.2 arranged an Ambulance to take the deceased Rooma to Chandigarh and then she was admitted in PGI, Chandigarh.  On 23.1.2013 the Op No.2 contacted the son of the deceased Rooma and asked him to hand over all the original record of the treatment for the period for her stay in his hospital from 17.1.2013 to 23.1.2013 on the pretext that the same was required in the PGI.  Believing the words of the OP No.2 the son of the deceased handed over the same to the Op No.2.  During her treatment at PGI it was noticed that the condition of the Rooma (since deceased) became from bad to worse only due to wrong prescription and wrong medicines, two feet and one hand of the complainant had become completely useless and these were amputated from the body of the deceased Rooma.  The deceased was earning Rs.10,000/- per month from selling the tea and snacks etc.  Due to wrong prescription and medicines and due to negligence and deficiency of the Ops No.1 & 2, complainants have suffered a loss and prayed for acceptance of complaint by directing the Ops to pay Rs.19,50,000/- explained above along with interest @2% p.a. for economic loss, loss of her both feet and one hand and further to pay Rs.21000/- as legal expenses to the complainant. 

3.                Upon notice, the Ops appeared and filed their written statement separately.  The Ops No.1 & 2 while, filing the written statement, took some preliminary objections that the complaint is not legally maintainable; the complainant has no locus standi to file the present compliant; the complainant is estopped from filing the present complaint; the complainant has no cause of action to file the present compliant; the present compliant is an abuse of process in the eyes of law; the complaint is bad for mis joinder and non joinder of necessary parties; unless specifically admitted hereinafter contents of the complaint under the reply are categorically wrong and denied; the complaint filed by the complainant is entirely misconceived and bundle of lies and has been filed with malafide intentions; complaint filed by the complainant seeking compensation on the ground of the medical negligence and deficiency in service is per se not maintainable in view of the facts of the complaint; OP No.2 Dr.Gulshan Narang having qualification of BAMS is well experienced and reputed doctor from  last 22 years and is proprietor of Narang Clinic-OP No.1 and has performed his duty to the best of his ability and skill and with due care and caution.  Smt. Rooma Devi w/o Sh.Mohan Yada came in the clinic of Op No.1 as OPD patient on 23.1.2013 with nearest laboratory report dated 19.1.2013 with finding HB 7.5 Blood urea 63, S.Creatine 1.7, S.Uric acid 8.7 and report dated 21.1.2013 with finding blood urea 31 S. Creatine 1.4 and also report dated 23.1.2013with finding HB 7.5, TLC 29100, N 82, L15, M2, E1, ESR 88, SGPT 45, S.Bilrubin 1.0, Blood Urea 29, S.Creatine 0.6, S.Proteins 6.3 of Guru Nanak Clinical Laboratory, which were related to diarrhoea.  The patient informed the OP that they were taking medicine from another medical practitioner.  The OP requested the complainant to come along with all the reports and prescriptions of the previous consultant doctor.  As the patient at that point of time did not have complete set of report and the prescriptions of medical practitioner so the OP advised the complainant to have all these necessary prescription and finding of the laboratory report.  The patient on the same day came back with another report of some laboratory without any delay reference of any doctor.  Op again advised the complainant to go through examination and there upon they would have lab report than only than the OP will be in a position to prescribe any medicine to the deceased Rooma.  The patient was asked to have S.Sodium, S.Potasium and S.Albumins tests from a reputed Nidaan Diagnostic Centre.  The Op provided first Aid to deceased Rooma and sent her for all those prescribed tests so that the treatment could be provided in proper way.  The first aid was given to control diarrhoea, no other medicine was prescribed to the complainant.  The patient Rooma came back along with all those reports on 23.1.2013 with finding Albumins 3gm%, Sodium 172MEQ/Litre, Potasium 3.10EQ/Litre of Nidaan Diagnostic Centre, which was prescribed to her.  On examination the Op came to know that there was aggravated form of infection so, the OP advised the complainant to consult senior doctor and accordingly referred the matter for management to higher center.  Thereafter, the patient did not come back to the Op and the OP is completely unknown where the complainant had taken treatment and what happened to her.  It is pertinent to mention here that the Hon’ble Supreme Court of India in judgment reported in 2005(6) SCC 1 titled as Jacob Mathew vs. State of Punjab has been held that, “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”. 

49 (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 the processional, in particular a doctor additional consideration, apply.   A case of occupational negligence is different from one of the 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”.

53.     “A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to the support the charge of rashness or negligence on the part of the accused doctor”.

Further, the Hon’ble Supreme Court of India in judgment reported in 157(2009) DLT 391 (SC titled as Martin F.D Souza vs. Mohd. Ishfaq, held that, “47 Simply because a patient has not favourably responded to the treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of resipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake.  A single failure may cost him dear in his lapse”. 

                   The Ops No.1 & 2 have not committed any medical negligence or deficiency of service.  Answering Ops gave the treatment with proper care and due diligence and as per the set medical standards.  Moreover, the complainant has not produced on record any expert finding stating that there was any lapse on the part of the Ops: there is no cause of action to file the present complaint; the complainant has concealed and suppressed number of material facts and on this ground also captioned complaint is liable to be dismissed.  On merits, the controvert the plea taken in the complaint and reiterated the stand taken in the preliminary objections and further denied that that the deceased Rooma was brought on 17.1.2013 for treatment before the answering OP.  It is submitted that deceased Rooma was Ops patient and came to OP for treatment on 23.1.2013 having some laboratory report with her.  The answering OP prescribed some lab report on 23.1.2013 so that proper treatment could be provided to her.  After the finding of the lab report, the OPs referred the patient for management to higher centre as the disease diarrhea was in its aggravated form. The patient Rooma was never admitted in the OP clinic and hence, all allegations are wrong and denied.  The OP seeing the pathetic condition of the patient referred the patient for management to higher center and the OP only provided and prescribed first aid to the patient so that the proper treatment could be provided by senior doctor.  The OP is completely unknown as to where from the complainant got the treatment and result of the treatment.  As the patient Rooma was the OPD patient so there was no question of admission in the hospital.  It is wrong that the OP took the patient to the hospital of Dr.R.K.Gupta and Dr.Ish Chadha.  The OP-doctor never contacted the son of the deceased Rooma for treatment record, even on seeing the report of Nidaan Diagnostic Centre, the OP referred the patient and the OP only provided medicine for diarrhea.  There is no deficiency in service on the part of the answering.  In addition, since the patient claims that she has been treated at PGI Chandigarh so to know the final details, full diagnosis and further out come the record of PGI Chandigarh should be summoned for bringing the truth.  Answer to all the queries can only be made after going through above mentioned treatment record of PGI, Chandigarh and prayed for directing the complainant to produce all the treatment record for proper justice.  The complainant availed treatement in the PGI, Chandigarh and opinion of the medical board of PGI, Chandigarh regarding whether the case is of medical negligence or not is required.  The patient was initially treated for diarrhea and hence the PGI board opinion regarding the treatment she availed over there is necessary and sincere for the determination of the present case.  The complaint is false and frivolous and prayed for dismissal of complaint with costs.

4.                OP No.3, while filing the written, statement took some preliminary objections that the compliant is not maintainable against the answering OP; there is no negligence or deficiency in services on the part of the OP-company; this Hon’ble Forum has got no jurisdiction to entertain and try the present complaint; the complainant has not disclosed the actual and material facts and has not placed the documents/record/medical record before this Hon’ble Forum.  On merits, reiterated the stand taken in the written statement of the Ops No.1 & 2 and prayed for dismissal of complaint.

5.                To prove his case, the complainant tendered into evidence affidavits as annexure CW/A to CW/C and documents such as copies of bills as annexure C.1 to C.99, copies of tickets of buses and rail as annexure C.101 to C.106, copy of performa for Assistance from Poor Patients Welfare Fund as annexure C.107 & C.108, copy of patient information form as annexure C.109, copy of receipt of Rs.195/- as annexure C.110, copy of estimate certificate as annexure C.111, History form of PGI as annexure C.112, copy of birth certificates of children of deceased Rooma as annexure C.113 to C.116, copy of ration card as annexure C.117,  copy of Aadhar card of Mohan Yada as annexure C.118, copy of hand written medicine as annexure C.119, copy of receipt of cremation as annexure C.120, photographs as annexure C.121 to C.125, copy of death certificate as annexure C.126 and closed his evidence.

6.                On the other hand, Dr.Gulshan Narang tendered into evidence his own detailed affidavit as annexure RW/A on behalf of Ops No.1 & 2 and closed his evidence.

7.                The counsel for the OP No.3 tendered into evidence affidavit as annexure RW.3/A affidavit of Shri Ajay Sareen, document such as copy of policy as annexure R.3/1 and closed the evidence on behalf of OP No.3.

8.                We have heard, the learned counsel for the parties and gone through the pleadings as well as documents placed on the file minutely.  The counsel for the complainant reiterated the stand taken in the complaint and draw the attention of this Forum towards order dated 17.9.2010 passed by this Forum in case titled as Smt.Anju vs. Narang Clinic etc.and copy of order dated 17.8.2011 passed in FA No.1649 of 2010 and FA No.1799 of 2010.  Lastly prayed for acceptance of complaint.

9.                On the other hand, the learned counsel for the Ops No.1 & 2 also reiterated the stand taken in their written statement and further argued that there is no deficiency in service on the part of the answering Ops and draw the attention of this Forum towards authority 2009(2) CLT P.381 titled as Martin F.D’Souza vs. Mohd. Ishfaq, wherein it has been held that, “(i) Medical negligence-General principles relating to Medical Negligence-Case law on the subject indicated. (ii) Medical negligence-Criminal cases against doctors-Protection to Doctors in Criminal cases-Certain rules laid down in this connection in Jacob Mathew’s case enumerated. (iii) Medical negligence-Application of general principles to particular cases-Decisions of the Apex Court discussed. (iv) Medical negligence-Medical expert’s repot- Petitioner admitted in serious condition as a case of chronic renal failure and was undergoing haemodialysis twice a week on that account-He was suffering from higher fever and severe urinary tract infection which could only be treated by Amikacin or Mathenamine-Since Mathenamine Mandate cannot be used in patient suffering from renal failure, Amikacin injection administered to him-Allegation that due to excess dose of Amikacin he suffered hearing impairment-Assistance of Expert from AIIMS sought by the National Commission-Report from AIIMS in favour of appellant doctor-The commission sought to submstitute its own views over that of medical experts and has practically acted as super specialists in medicine-That apart the affidavits of several other doctors who have stated that appellant acted correctly in the situation he faced-Held that if he chose to save the life of the patiernt rather than his hearing surely he cannot be faulted-Appellant cannot be held guilty of medical negligence”.  Further draw the attention of this Forum towards authority 2013(2) CLT P.43 titled as Orthonova Institute of Advanced Surgery & Research, New Delhi & others vs. Nripendra Kumar Thakur, held that, “Section 2(1) (g)-Medical Negligence-Difference of opinion-Merely because one doctor had favoured amputation and appellants for plausible and convicing reasons duly recorded did not agree with it does not in any way constitute medical negligence on their part-Appeal allowed”.  Lastly prayed for dismissal of complaint with costs.

10.              The counsel for the Op No.3 argued that there is no deficiency in service on the part of the answering OP and prayed for dismissal of complaint with costs.

11.              After hearing the learned counsel for the parties and going through the pleadings as well as documents placed on the file, it emerges that it is no where proved and admitted that the deceased Rooma remained admitted in the clinic of Ops No.1 & 2.    The complainant in whole of the pleadings pleaded that the Op-doctor admitted deceased Rooma in his clinic on 17.1.2013 and gave the wrong treatment to her due to which the condition of the deceased Rooma became critical on 23.1.2013 and then only the OP-doctor took the patient to the hospital of Dr.R.K.Gupta and Dr.Ish Chadha but he has nowhere produced any cogent evidence or any documentary evidence on the file to prove that what wrong treatment was given by the OP-doctor to the deceased Room due to which her position became critical.  Instead of proving the case the complainants made allegations against doctor for collecting original record from the son of the complainant for the period of stay of the deceased in his hospital from 17.1.2013 to 23.1.2013 on the pretext that the same was required at PGI Chandigarh for the purpose of consultation.  This plea of the complainant is not tenable as they have to stand on their own legs by producing the treatment record of the treating doctor to prove that what wrong treatment was given by the OP-doctor.  The plea taken by the complainant that Dr.Gulshan Narang took the patient to the hospital of Dr.R.K.Gupta and Dr.Ish Chadha is also not proved on the file because the complainants have failed to file any affidavit of their relatives or any other person including said Dr.R.K.Gutpa and Dr.Ish chadha that Dr.Gulshan Narang took the above said patient to the aforementioned hospitals.  Shri Mohan Yadav husband of the deceased Rooma tendered his affidavit with the version that on 17.1.2013, deceased Rooma Devi was suffering from diarrhoea and was got admitted in the clinic of OP-doctor and when the condition of the deceased Rooma became critical on 23.1.2013, the OP-doctor took the patient to the Chadha Hospital but it has nowhere been mentioned that the OP-doctor further took the deceased to the Dr.R.K.Gupta hospital as pleaded in the complaint; it shows that the pleadings/version of the complainants are self contradictory.  In second affidavit tendered by one Shri Happy, it is nowhere stated that the OP-doctor took the patient to the aforementioned hospitals.  So far as, third affidavit of Shri Sandeep Tiwari is concerned, he has simply stated that on 17.1.2013 on the asking of the husband of Rooma Devi, he took her to the clinic of Dr.Gulshan Narang and dropped her in the clinic of OP-doctor where she remained admitted for seven days and he used to visit in the clinic of Dr.Gulshan Narang for 7 days. In case the above said pleadings are taken to be true that the deceased Rooma Devi remained admitted in the hospital of the OP-doctor then how it is possible that the complainant had not taken any prescription slip and other treatment record from the OP-doctor to prove that from what disease, the said deceased Rooma was suffering.  Whereas the OP-doctor has taken a specific plea in his pleadings that the deceased Rooma came in his clinic as OPD patient on 23.1.2013 with the problem of diarrhoea and he got the test conducted from Nidaan Diagnostic Centre and on seeing the reports of the Nidaan Diagnostic Centre on 23.1.2013 the OP-doctor referred the patient to the higher centre as the disease diarrhoea was in its aggravated form.

12.              So far as the question of medical negligence is concerned, the plea taken by the OP-doctor has nowhere been controverted by the complainants by producing any expert/cogent evidence.  In case, there was any negligence on the part of the OP-doctor then the complainant should have summoned the doctor of PGI or placed on record any opinion of doctor concerned to establish that due to negligence and wrong treatment given by the OP-doctor the condition of deceased Rooma Devi had become critical and her two feet and one hand had become useless due to gangrene and the same were amputated at PGI, Chandigarh to save her life.  The orders of this Forum as well as of Hon’ble State Commission, Haryana tendered by the counsel for the complainant are not disputed but not identical to the facts and circumstances of the case in hand because each and every case has its own facts and merits and if the OP was held guilty in any case earlier it cannot be taken as precedent to hold him guilty in other cases, whereas the authorities (supra) tendered by the Ops No.1 & 2 are fully applicable and identical to the facts and circumstances of the case in hand.  .

13.              In view of the above said discussion, we are of the considered view that the complainants have miserably failed to prove their case, hence, they are not entitled for any relief.

14.              Resultantly, we find no merits in the case of the complainant, hence the same is hereby dismissed with no order as to costs.  Copies of this order be supplied to the parties concerned free of costs.  File be consigned to the record-room.

Announced in open Court:25.9.2017.                           

                                                                             (SATPAL)

                                                                             PRESIDENT.

 

(VEENA RANI SHEOKAND)                         (S.C.SHARMA)

MEMBER.                                                         MEMBER.