PER:

Charanjit Singh, President.

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainants have filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 against the opposite parties on the allegations that on 18.01.2017, the husband of the complainant suffered heart attack who was taken to Nayyar Hospital for necessary treatment and sum of Rs. 1,40,000/- was paid to the opposite parties. Thus, the complainant is consumer qua OPs. On 18.01.2017, the husband of the complainant suffered heart attack and he was immediately taken to A.P Hospital,  where the doctor who had examined the husband of the complainant advised her that the husband of complainant needs stenting immediately and as the hospital is not so equipped, so the complainant can take her husband to any other hospital for stenting purpose. Consequently, the complainant took her husband to OP No. 1 Hospital where all the investigations were done on 18.01.2017 and 19.01.2017. Thereafter, the OP-2 advised the complainant that coronary angiography is required to be done as per ECG of her husband. The O.Ps asked the complainant to deposit the expenses required for doing the angiography of husband which the complainant paid to O.Ps and the angiography was done on 24.01.2017. The complainant told the O.Ps that her husband is duly covered under BHAI GHANYA SCHEME but the opposite parties told her, if she wants the treatment of her husband then she has to pay the expenses in cash. After the angiography, the complainant requested her relatives and respectable to give some payment on credit to her as she is not having sufficient means to get the surgery done in the hospital of opposite parties. The husband of the complainant was the only bread earner in the family of complainant so to save the life of her husband, the relatives and respectable such as inhabitants of her locality etc. have contributed the expenses and paid a sum of Rs. 1,40,000/- (for two stents) to the O.Ps for the stenting of her husband as the O.Ps told the complainant that two stents are needed to be implanted for full recovery. On 26.01.2017 opposite parties performed surgery for stenting of the husband of the complainant. While doing stenting of husband, due to negligence committed by the opposite parties the hand of the husband of complainant started changing in blue colour. Thereafter, the right hand of the husband started getting black. The complainant immediately brought the same in the knowledge of opposite parties  who told her that they have done stenting and now gangrene has developed in the hand of her husband and as such, the complainant was told to arrange Rs. 8 lacs immediately as they will have to perform another surgery upon her husband and if she wants to save the life of her husband then she will have to arrange the expenses of second surgery as early as possible. Thereafter, the complainant and other family members went in deep shock as they are not having sufficient money for conducting second surgery on the arm of her husband and nobody is ready to do the favour to her and the life of her husband is now at stake. The complainant told the opposite parties  that she took her husband to opposite parties  as her husband was having heart trouble and suffered heart attack and also asked the reason for development of gangrene in the right hand of her husband but the opposite parties did not evince any response and simply asking her to arrange the money and only then they will give further treatment necessary to the husband of complainant. The complainant agitated the attitude of the opposite parties vehemently but all the efforts of the complainant were put to naught. Eventually, the complainant approached concerned authorities such as Civil Surgeon and Deputy Commissioner Amritsar and made several complaints to them seeking directions to opposite parties to give necessary treatment as early as possible as gangrene has already been developed in the hand of her husband and necessary surgery would not be done to the earliest then infection may spread in the whole body of her husband and her husband can be died consequently but nobody is taking any action against the opposite parties. The condition of the husband of complainant is becoming bad to worse after passing of every minute what to talk about days. After the operation, only two fingers of hand were started blackening and now infections is being spreading after passing of every minute and now two fingers are totally black and another two fingers have started blackening. The infection is also spreading in the arm of the husband as the colour of arm is also started changing and if necessary treatment will not be given at the earliest then it may spread in whole body of her husband but the O.Ps are very much adamant and still saying to complainant to get the payment for second surgery first then they will do the same. When the complainant told them about the fact that they have made complaints to concerned authorities they have deputed one nurse who is giving only one injection to the husband in a day but they are not giving necessary treatment required to be done at this stage i.e. surgery. The opposite parties are openly threatening the complainant so that they could undermine the complainant so that the complainant would have been forced to leave the hospital as the complainant is not having requisite money for necessary treatment but as the condition of her husband is worsening day by day and he required urgent treatment and as the situation has arisen due to negligence of opposite parties in doing stenting as such the opposite parties are liable to bear the expenses of second surgery and save the life of husband of complainant. However, the opposite parties are passing buck to the genuine and legitimate demands and requests made by the complainant and openly refusing to give treatment to the husband as such the situation is becoming bad to worse day by day. The act of opposite parties of doing stenting so negligently causing gangrene in the hand of complainant husband and thereafter not giving proper treatment thereafter constitutes gross medical negligence behalf of opposite parties and gross deficiency in services as well as unfair trade practice on their part causing great mental agony, harassment, inconvenience to complainant for which complainant reserves his right to have suitable compensation as well as litigation expenses whatever may be awarded by competent court of law. The complainant has prayed that the opposite parties may kindly be directed to refund amount of Rs.1,40,000/-  paid for surgery (stenting) of husband of complainant and Rs. 14 Lacs for committing medical negligence while performing stenting and further 2 lacs on account of expenses which the complainant will have to incur in future for treatment of her husband and 1 Lac as compensation for deficiency in services and unfair trade practice committed by opposite parties and further Rs. 1 Lacs as expenses to the complainant for pursuing this complaint which the opposite parties have compelled the complainant to file and punitive damages may also be imposed upon opposite parties for unfair trade practice as well as deficiency in services on their part.

3        After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 1 appeared through counsel and filed written version and contested the complaint by interalia pleadings that the complaint is not maintainable either on the facts alleged or under the law, hence it liable to be dismissed on this score alone. The complainant does not disclose any cause of action towards the opposite party No.1, The opposite party No. l hospital was insured with United India Insurance Co. Ltd. DO-II, situated at Dharam Singh Market, Amritsar at the relevant time under professional indemnity insurance and so the said insurance company is a necessary party to the proceedings. No specific negligence or deficiency in service has been attributed to the replying opposite party No.1. The surgery for gangrene was conducted on 30-3-2017 and was in the hospital premises which he has left without paying the dues of the hospital and also taken away the dishonored cheque No. 000005 issued by the complainant after threatening the officials of accounts department of the hospital. The complainant is not entitled to claim any relief against the replying hospital. The complainant brought patient Tara Chand Sharma on 18-1-2017 to the hospital of the opposite party after being referred from SGRD Hospital Valaha. It is stoutly denied that sum ofRs.1.40Lac was paid by the complainant. The amount received by the hospital authorities is only Rs.1,60,000/-.out of which complainant only deposited Rs.90,000/ on different dates with the opposite parties and an amount of Rs.70,000/- was paid to the hospital by an organization. The complainant is not consumer qua opposite parties. The husband of the complainant has availed the services of the opposite parties and best treatment has been given to him and as such his wife has no right to approach this commission and is not consumer under the provisions of this act. On 18.1.2017, the husband of the complainant was taken to the SGRD Hospital where doctors had examined the husband of the complainant. The patient Tara Chand Sharma i.e. husband of the complainant was presented in emergency on 18-1-2017 at 10.51 p.m. in very serious condition with altered sensorium, chest pain a/w profuse sweating, difficulty in breathing and loss of memory. Patient was immediately attended by on duty medical officer in ICU and was found to be having complete heart block(heart was stopping) with inferior wall myocardial infraction and was advised urgent TPI. Patient was attended and urgent temporary pacing was performed. Routine lab investigation were done which revealed high blood count at 14.200, increased blood urea [74.1] S. Creatinine of 2.8 [normal value 0.6-1.3] , increased enzymes MB 302. 1[N-upto 25], TROP-T positive, raised S. BILLIRUBIN AND VERY HIGH SGOT 5632 [N-upto-46), SGPT 4596.7 [N up to 49] and raised very high Ammonia Level of 1960.5[N.30-86]. He also had very low Prothrombin, time index of 46.6% [ N 100% ] All these investigations pointed towards serious Sepsis Infection in Blood) with Multiorgan involvement. This combined with Acute MI put the patient in very high risk  [grave] bracket. Complete Diagnosis of the patient was made and the condition was duly explained to the attendants and treatment was started. Patient could not be taken for any invasive procedure because of critically unstable condition. Patient was managed with High end antibiotics, diuretics, anti-platelets, inotropes and other supportive treatment. After his condition stabilized, patient was taken up for coronary Angiography on 24.1.2017, which revealed Triple Vessel Disease. During the procedure patient developed orthoponea as he was on high insotropic support with TPI, further procedure was abandoned and patient was shifted back to ICU as the patient was on temporary Pace Maker for a longer period. After his condition stabilized little more he was taken up for PTCA on 26.1.2017 and PTCA to RCA [Culprit vessel] was done. Patient was shifted back to ICU. All the consent forms were duly given by the complainant or his family members. After this procedure, patient's own sinus rhythm was revived. With this treatment patient's Kidney function and Liver function improved drastically. As per advise of Nephrologists, Haemodialys was done on 30.1.2017. Patient's general condition improved and urine output increased. Kidney function test came under the normal range. It is submitted that patient has been a chronic smoker and an alcoholic and he had pre disposing factors for peripheral Artery Disease. Subsequently the patient developed peripheral Arterial Disease with Right Upper limb compartment Syndrome. Decompression and Debridement was done with antibiotics support but despite best possible treatment gangrene of hand developed. The colour droppler was done and his colour Droppler study showed Thrombosis of Superficial Palmar Artery which is a branch of Ulnar Artery whereas CAG and PTCA were done through RADIAL. Artery this clearly shows that development of gangrene has nothing to do with the procedure and it is a total different clinical entity. Patient has been seen by Orthopedic Surgeon and his amputation is being planned.  After the angiography of the patient, the complainant never requested her relatives and respectables to give some payment on credit. The amount to the extent of Rs.70000/- was paid by the organization and not by the relatives of the complainant. One of the cheque of Rs.20000/- bearing No. 000005 issued by the complainant had been dishonoured for want of sufficient funds. It was made very clear to the complainant that one stent has to be implanted and now by making false allegations of two stents, she is misleading this Hon'ble Commission.  It is stoutly denied that while doing stenting of husband due any alleged negligence of the replying party the hand of the husband of complainant starting changing in blue colour. The husband of the complainant is a hard core smoker and alcoholic and was having peripherial arteriary disease because of which his hands turned black. It is submitted that after performing surgery the Colour droppler test was conducted and colour Droppler study showed Thrombosis of Superficial Palmar Artery which is a branch of Ulnar Artery where as CAG and PTCA were done through RADIAL Artery. This clearly shows that development of gangrene has nothing to do with the procedure and it is a total different clinical entity. The patient has been seen by Orthopedic Surgeon and his amputation is being planned. The colour droppler is not mandatory to be conducted prior to the performing of surgery. As per hospital accrued bills the complainant was asked to deposit money from time to time on the counter. The complainant had not deposited the cost of medicines which comes to Rs. 364000/- up to 28.3.2017 and other hospital charges for the services availed by the patient is Rs.7,35,790/- up to 28.3.2017 inspite of repeated request to the complainant by the hospital authorities but she instead to pay the same, is creating ugly scene in the hospital by calling anti-social elements and has caused grave injuries to the staff of the hospital and is instigating the attendants of other patients with the ulterior motive to defame the name and fame of the hospital and further threatening the doctors of dire consequences and further threatening that she will extract the money from the hospital instead of paying the dues. The complaint is not giving her consent for conducting the surgery of gangrene for which she herself is responsible, while the hospital authorities had already planned to get the surgery conducted after duly consulting the Orthopedic surgeon as stated above. The opposite party  No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.

4        The opposite party No. 2 has appeared through counsel and has filed written version by contesting the complaint that the complainant brought patient Tara Chand Sharma on 18-1-2017 to the hospital of the opposite party after being referred from SGRD Hospital Valaha. It is stoutly denied that sum ofRs.1.40Lac was paid by the complainant. The amount received by the hospital authorities is only Rs.1,60,000/-out of which complainant only deposited Rs.90,000/ on different dates with the opposite parties and an amount of Rs.70,000/- was paid to the hospital by an organization. The husband of the complainant has availed the services of the opposite parties and best treatment has been given to him and as such his wife has no right to approach the forum and is not consumer under the provisions of this Act. On 18.1.2017 the husband of the complainant was taken to the SGRD Hospital where doctors had examined the husband of the complainant. The patient Tara Chand Sharma i.e. husband of the complainant was presented in emergency on 18-1-2017 at 10.51 p.m. in very serious condition with altered sensorium, chest pain a/w profuse sweating. difficulty in breathing and loss of memory. Patient was immediately attended by on duty medical officer in ICU and was found to be having complete heart block(heart was stopping) with inferior wall myocardial infraction and was advised urgent TPL. Patient was attended to by Cardiologist Dr. Mannan Anand at 11.00 pm and urgent temporary pacing was performed. Routine lab investigation were done which revealed high blood count at 14.200, increased blood urea (74.1) S. Creatinine of 2.8( normal value 0.6-1.3), increased enzymes MB 302. 1(N-upto 25), TROP-T positive, raised S. BILLIRUBIN AND VERY HIGH SGOT 5632 [N-upto46], SGPT 4596.7 [N upto 49] and raised very high Ammonia Level of 1960.5[N.30-86]. He also had very low Prothrombin, time index of 46.6% [ N 100% ]. All these investigations pointed towards serious Sepsis [Infection in Blood] with Multiorgan involvement. This combined with Acute MI put the patient in very high risk [grave] bracket. Complete Diagnosis of the patient was made and the condition, was duly explained to the attendants and treatment was started. Patient could not be taken for any invasive procedure because of critically unstable condition. Patient was managed with High end antibiotics, diuretics, anti-platelets, inotropes and other supportive treatment. After his condition stabilized, patient was taken up for coronary Angiography on 24-1 2017, which revealed Tripple Vessel Disease. During the procedure patient developed orthoponea as he was on high inotropic support with TPI, further procedure was abandoned and patient was shifted back to ICU as the patient was on temporary Pace Maker for a longer period. After his condition stabilized little more he was taken up for PTCA on 26-1-2017 and PTCA to RCA [Culprit vessel] was done. Patient was shifted back to ICU. After this procedure, patient's own sinus rhythm was revived. With this treatment patient's Kidney function and Liver function improved drastically. As per advise of Nephrologists, Haemodialys was done on 30-1-2017. Patient's general condition improved and urine output increased. Kidney function test came under the normal range. The patient has been a chronic smoker and an alcoholic and he had pre disposing factors for peripheral Artery Disease. Subsequently patient developed peripheral Arterial Disease with Right Upper limb compartment Syndrome. Decompression and Debridement was done with antibiotics support but despite best possible treatment gangrene of hand developed. The colour droppler was done and his colour Droppler study showed Thrombosis of Superficial Palmar Artery which is a branch of Ulnar Artery whereas CAG and PTCA were done through RADIAL Artery. This clearly shows that development of gangrene has nothing to do with the procedure and it is a total different clinical entity. Patient has been seen by Orthopedic Surgeon and his amputation is being planned.  The angiography of the patient, the complainant never requested her relatives and respecables to give some payment on credit. It is stated that the amount to the extent of Rs.70,000/- was paid by the organization and not by the relatives of the complainant. One of the cheque of Rs.20,000/- bearing No. 000005 issued by the complainant had been dishonoured for want of sufficient funds. It was made very clear to the complainant that one stent has to be implanted and now by making false allegations of two stents, she is misleading this Commission. The husband of the complainant is a hard core smoker and alcoholic and was having peripherial arteriary diocese because of which his hands turned black. After performing surgery the Colour droppler test was conducted and colour Droppler study showed Thrombosis of Superficial Palmar Artery which is a branch of Ulnar Artery whereas CAG and PTCA were done through RADIAL Artery. This clearly shows that development of gangrene has nothing to do with the procedure and it is a total different clinical entity. The patient has been seen by Orthopedic Surgeon and his amputation is being planned. The Colour droppler is not mandatory to be conducted prior to the performing of surgery. As per hospital accrued bills the complainant was asked to deposit money from time to time on the counter. The complainant had not deposited the cost of medicines which comes to Rs. 364000/- up to 28.3.2017 and other hospital charges for the services availed by the patient is Rs.7,35,790/- up to 28/3/2017 inspite of repeated request to the complainant by the hospital authorities but she instead to pay the same, is creating ugly scene in the hospital by calling anti-social elements and has caused grave injuries to the staff of the hospital und is instigating the attendants of other patients with the ulterior motive to defame the name and fame of the hospital and further threatening the doctors of dire consequences and further threatening that she will extract the money from the hospital instead of paying the dues. The complaint is not giving her consent for conducting the surgery of gangrene for which she herself is responsible, while the hospital authorities had already planned to get the surgery conducted after duly consulting the Orthopedic surgeon as stated above. The complainant is deliberately not paying the Hospital dues.  The complainant and other family members are not having sufficient money for conducting the surgery on the arm of her husband. The husband of the complainant was brought with a heart trouble and he has been duly attended by doctors and due treatment was given which has saved his life. The gangrene which had been developed has nothing to do with the treatment administered by the opposite parties. The attitude of the complainant is barbaric, gruesome and in order to avoid the payment for the services availed by her husband, she is creating ruckus in the hospital premises. The opposite party had planned for surgery of gangrene of the husband of the complainant by taking advise from specialist but the complainant is not giving her consent nor is depositing her arrear of bills till date and rather creating fuss in the hospital. The complainant is calling outsider and unwanted persons and is creating loss of name and fame of the hospital by raising false allegations. The complainant is quarrel some lady and is making false complaints just to extract money from the opposite parties and she has no interest in the life of her husband. The angioplasty was performed on the 26-1-2017 whereas gangrene had developed after long span of time and has nothing to do with the surgery conducted on the husband of the complainant. The operation for gangrene has been conducted on 3-4 after the consent form was signed. Hospital is entitled to claim all the charges, expenses incurred for treatment of the patient. The condition of the husband of the complainant is becoming bad to worse after passing of the time because of the act and conduct of the complainant, who is not giving consent for surgery and is not depositing arrear of hospital bills. The opposite parties are within their legal rights to ask the complainant to deposit the arrears of hospital treatment bills and to give consent for second surgery and to deposit necessary fee for the second surgery of husband of the complainant. The opposite party is giving full care and attention to the husband of the complainant and have put hospital staff for his care and proper best treatment is being given to the husband of the complainant keeping aside the non-payment of arrear of bills by the complainant.  The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same.

5        To prove his case, Ld. counsel for the complainant       has tendered in evince affidavits of complainant Ex. C1A and C-1B  alongwith documents i.e. ECG report dated 19.1.2017 Ex. C-1, copy of the angiography report dated 2.1.2018 Ex. C-2, copy of CTCA report dated 26.1.2017 Ex. C-3, copy of complaint letter to civil Surgeon Ex. C-4, copy of complaint letter before DC Ex. C-5, original photograph Ex. C-6, copy of photographs Ex. C-7 and closed the evidence. On the other hands. Ld. counsel for the opposite party No. 1 tendered in evidence affidavit of Dr. S.D. Nayyar Ex. OP1/A,  affidavit of Dr. Manan Anand Ex. OP2/A alongwith documents i.e. diet chart of Tara Chand Ex. OP1/1, copy of daily chargeable service Ex. OP1/2 to Ex. OP1/14, copy of the medication admission record Ex. OP1/15 to Ex. OP1/28, copy of consultant visit record Ex. OP1/29 and Ex. OP1/29A, copy of the laboratory investigation report Ex. OP1/30 to OP1/33, copy of the colour Doppler report from Dhillon Ultrasound scan centre Ex. OP1/34, copy of the color Doppler Ex. OP1/35, copy of surgical safety check list Ex. OP1/36, copy of consent for angiography Ex. OP1/37, copy of the consent from the angioplasty Ex. OP1/38, copy of High risk informed consent Ex. OP1/39, copy of the informed consent for operation and procedure Ex. OP1/40 and OP1/41, copy of the expenses incurred and detail with provisional bills Ex. OP1/42 to OP1/45.

6        We have heard the Ld. counsel for the complainant and opposite parties and have gone through the record on the file.

7        The combined and harmonious reading of documents and pleading transpired that on 18.01.2017, the husband of the complainant suffered heart attack, who was taken to Nayyar Hospital for necessary treatment and a sum of Rs. 1,40,000/- was paid to the opposite parties. Initially the patient was taken to A.P. Hospital, after examination the patient was referred to the hospital i.e. Opposite Party No. 1. Thereafter, the opposite party No. 2 after investigation advised the complainant No. 2 for coronary angiography. The O.Ps asked the complainant to deposit the expenses required for doing the angiography of husband which the complainant paid to O.Ps and the angiography was done on 24.01.2017.

8        On 26.1.2017 opposite parties performed surgery for stenting of the husband of the complainant. As per version of complainant that while doing stenting of her husband a negligence was committed by the opposite parties. The hand of the husband of the complainant started changing in blue colour. Thereafter, the colour of the hand turned in to black from blue. This fact was immediately brought to the  notice of opposite parties who told her that they have done stenting and now gangrene has developed in the hand of her husband and as such, the complainant was told to arrange Rs. 8 lacs immediately so that they have to perform another surgery upon her husband.  The complainant as well as other family members went in deep shock as they are not having sufficient money for conducting the second surgery of the arm of her husband.  As per version of the complainant,  she took her husband for having heart trouble but subsequently not for the development of gangrene in the hands of the husband of the complainant.  The hospital simply asked to the complainant to arrange money for further treatment of the patient. The complainant agitated the attitude of the opposite parties vehemently but all the efforts of the complainant put to naught. Eventually, the complainant approached concerned authorities i.e. Civil Surgeon and Deputy Commissioner Amritsar for seeking directions to opposite parties to give necessary treatment as early as possible as gangrene has already been developed. The condition of the husband of complainant was becoming bad to worse after passing of every minute. Infection is also spreading to the body as the colour of the arm of the patient was started changing. The opposite parties were insisting to arrange the money for the urgent treatment of the patient. The act of opposite parties doing stenting surgery so negligently caused gangrene in the hand of the patient. 

9        On the other hand, the opposite parties submitted that the complainant was taken to SGRD Hospital from where he was referred to  the opposite party No. 1 i.e. Nayyar Heart Hospital. The patient was admitted in the emergency on 18.1.2017 at 10.51 P.M. in various serious condition with altered sensorium, chest pain a/w profuse sweating, difficulty in breathing and loss of memory. The patient was found to having complaint heart block with inferior wall myocardial infection and was advised urgent TPI.  The routine lab investigation were done and all the investigations pointed towards serious sepsis [infection in blood with multi organ involvement]. The patient was at high risk due to acute MI. The condition of the patient was duly explained to his attendants and treatment was started. As the patient was in critically unstable condition, he was stabilized with various types of medicines. Thereafter, the condition of the patient was stabilized and he was taken for coronary angiography on dated 24.1.2017  which revealed as triple vassal disease. During the procedure the patient developed orthopnea as he was on high inotropic support with TPI and thus further procedure was abandoned and patient was back to ICU as the patient was on temporary pacemaker for a long period.   After condition of the patient stabilized he was taken up further PTCA on 26.1.2017 and PTCA to RCA (culprit vessel) was done and the patient was shifted back to ICU. All the consent forms were duly signed by the complainant and her family members. Thereafter, patient own sinus rhythm was revived and kidney function was also improved, and as per the advise of nephrologists haemodialysis was done on 30.1.2017 and general condition of the patient was improved. Further it is stated that the husband of the complainant is a chronic smoker and an alcoholic. The patient subsequently developed peripheral disease with right upper limb compartment syndrome. Despite antibiotic administered upon the patient, gangrene of hand was developed. Thereafter, colour droppler test was done and the opposite parties came to know that thrombosis of superficial palmar artery which is a branch of ulnar artery whereas CAG and PTCA were done through Radial Artery. The said fact clearly shows that the development of gangrene was nothing to do with the procedure and it is total different critical entity. The patient was seen by the orthopedic surgeon and his amputation was planned.  Further it is stated that the opposite parties were ready to perform the required surgery and even sought report from orthopedic surgeon but the complainant and her family members were not giving the consent for performing surgery and on 30.3.2017, the son of the patient gave the consent and necessary surgery was performed. Thereafter, on 23.4.2017, patient ran away from the hospital without paying dues which amounts to more than Rs. 11,00,000/-.  The husband of the complainant remained in the hospital for more than 3 months  and paid only Rs. 1,60,000/-. A cheque was issued by the complainant which was dishonoured later on. An application was moved on 11.2.2020 by Tara Chand Sharma patient for impleading himself as party to the complaint  and as such he was impleaded as party but nothing has been done by the complainant in this regard with a period of limitation. It is pertinent to mention here that an expert panel was also appointed and the opposite party has submitted the entire record but inspite of various intimation from the expert panel to provide the record by the complainant but the complainant never furnished the complete record.

10      In the present complaint, the allegation of the complainant is that the gangrene which was occurred to her husband is due to the negligent surgery performed by the opposite parties, but the complainant has miserably failed to establish this fact on the record that the gangrene was developed due to the negligent treatment by the opposite parties. However, an expert panel of doctors was also constituted to establish this fact that whether subsequent gangrene which was developed by the surgery performed with regard to stenting. It is also worthwhile to mention here that the patient was a chronic smoker as well as alcoholic. Further, it is alleged by the opposite parties that the  patient ran away from the hospital on 30.4.2017 after taking the treatment for 3 months without clearing the dues of Rs.  11,00,000/-. 

11      For the foregoing reasons in the absence of expert opinion as well as the conduct of the complainant we do not find any negligence on the part of the opposite parties, as there is nothing on record that the gangrene was developed due to the negligent surgery performed by the oppostie parties. Moreover onus was upon the complainant to prove the negligence beyond reasonable doubt which has not been done in the instant case. In C.P.Sreekumar (Dr) MS Ortho Vs. Ramanujan, 2009 (7) SC 130, it has been held that bald statement of the complainant cannot be accepted to reach conclusion that the doctor lacked expertise. It is observed that too much suspicion about the negligence of the attending doctors and frequent interference by courts could be a dangerous proposition as it would present doctors from taking decision which could result in complications and in such a situation the patient will be the ultimate sufferer. It is well settled law that in the case of medical negligence, initial burden to prove medical negligence lies on the complainant. Mere averments in the complaint are no evidence. Just a bald statement cannot be accepted as held by Hon‟ble Supreme Court in Jacob Mathew Vs. State of Punjab &Anr (2005) (3) CLT 358 (SC). On this point we are supported from the judgment 2015(2) CLT 310 (NS) Ram Gopal Yadav Cs Pushkar Anand (Dr) and others. In this case it was held that initial burden to prove medical negligence lies on the complainant. Further a reference has been taken from 2009(4) CLT (SC) C P Sreekumar (DR) MS (Ortho) Vs Ramunjam 2009(3) CLT 430 (SC)“ Nizam Institute of Medical Sciences Vs Prasanth S Dhanaka & Ors and (2005) (3) CLT 358 (SC) Jacob Mathew Vs State of Punjab and others .

12      Moreover the scope of negligence has discussed in various judicial decision extract of which are detailed hereunder:

In the book titling "Medical Negligence" written by Shri S.P. Tyagi (Edition 2004) Reprint 2008, he has mentioned at Page No.64, 65, 66, 67 and 68 regarding Medical Negligence, Classification of medical negligence or mistakes. It runs thus :-

"What is Medical negligence

The term medical negligence is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico-legal jurists have not come forward to provide a specific meaning to this express. 'Medical negligence' is always an outcome of doctor patient inter se conduct and relationship, which lacks uniformity. The issue of medical negligence is a complicated one as medical professionals deal with human body. They do not deal with the machine. Human body is not a mere composition of bones and flesh. It is susceptible to emotions also. Response of medicinal treatment varies from patient to patient. This phenomenon is also applicable to recovery aspect. Further recovery aspect is not solely dependent upon the appropriateness of treatment provided by the doctor. Response or recovery of a patient also depends on his individual anatomy and physiology. Possibility cannot be ruled out that a drug may be effective in case of one patient, it may not be effective in second and may cause reaction in third. Medico Legal experience also establishes that there exists inherent risk in every treatment, medicinal or surgical. Further possibility of unforeseen mishap may not be ruled out. Even the medicinal literature provides for failure rates particularly in surgery. 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 more than one course of treatment which may be advisable for treating a patient. Medical opinion may differ with regard to the course of action adopted by a doctor treating a patient.

Further the concept of medical negligence may be studied with reference to the extent of approach of a medical professional towards three under mentioned concepts, which generally work as guidelines to determine the factum of medical negligence or other-wise in a particular case.

-Duty of care in accepting the patient for treatment.

-Duty of care in providing appropriate treatment.

-Breach of duty or commission of negligence in any of them and damage cause by such breach.

In other words, medical negligence is result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties. Broadly speaking medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of medicine or surgery. Classification of medical negligence or mistakes. Negligence in medical care may broadly be classified into four categories Medical negligence at the level of doctors / paramedical staff / hospital authorities. Liability for negligence may be fixed at individual level and / or jointly or vicariously where hospitals nursing homes are involved. Negligence at the level of patient himself or his attendants also known as contributory negligence. Negligence at the level of manufacturers of drugs, equipment etc. and dispensers. Composite negligence i.e. at more than one of the above 3 levels. Negligence of first category may further be sub-classified into two categories viz. (a.) Individual liability of a medical professional. (b) Vicarious liability of an individual doctor or hospital for the Medical negligence may also be classified as under :Medical mistakes. ,Clinical negligence. Surgical mistakes Misplaced injection.

In Vimla RanaVs Mahesh Hospital and Ors. 2018 (1) CPR 353(NC), Hon'ble National Commission has observed thus :- "Consumer Protection Act, 1986 – Medical Negligence – Complainant's daughter was critical and hospitalized at Mahesh Hospital due to pain in abdomen for several days – Blood Pressure could not be recorded and she shivered - Following ultrasound adnexal mass found in right portion of adnexa – Tuberculosis in intestine along with severe perforations detected, and patient was shifted to LNJP hospital where she died after sixteen days – Complainant alleges Mahesh Hospital was negligent, and had operated on stomach of deceased without consent of her relatives – Seeks compensation to the tune of one crore – Defense point out that deceased had been unwell for past few months – Complainant has been unable to prove his allegations - No evidence to show that hospital did not have an ICU - No case of negligence made out against the hospital – Complaint dismissed without costs."

In Dr. M. KocharVs. Ispita Seal and Anr. 2018 (1) CPR 507 (NC),Hon'ble National Commission has observed thus :- "Consumer Protection Act, 1986 – Medical Negligence – Patients right fallopian tube had to be removed in 1990 owing to an ectopic pregnancy, but she was told that she could still conceive – Second pregnancy was also ectopic, and for the remaining few years she kept taking infertility treatment - OP then recommended IVF as the only alternative - On the day of tests she was handled only by staff members and even the documents did not bear OP's sign – Husband's semen test report was fine – Procedure was to be performed by the OP, who on the date of IVF told her that she had developed an infection - Complainant alleges extreme stress caused by the whole experience, and further alleged that OP had insisted on performing ET despite the certainty of failure - Complainant thus seeks compensation for negligence of OP and a refund – IVF in itself has a low rate of success which only gets lower as a woman gets older – OP had used the right procedure for IVF – No case of negligence made out."

In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed thus :-

The duties which a doctor owes to his patient are clear. 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 him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives Page a right of action for negligence to the patient. The practitioner must bring to his task 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 : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........

In this context it is relevant to cite case of Kusum Sharma & ORS.Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-

‘Para” 90” In Jacob Mathew’s case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:

a.       Negligence is the breach of a duty caused by omission to do something which is 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’.

b.       Negligence in the context of 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.

c.       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 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.

On scrutiny of the leading cases of medical negligence both in our country and other countries especially 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:

d.       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.

e.       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.

f.       The medical professional 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 circumstances of each case is what the law requires.

g.       A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

h.       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. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is 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. 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.

It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

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.”

In Jacob Mathew (Dr.) Vs. State of Punjab &Anr. III (2005) CPJ 9(SC), Hon'ble Supreme Court has observed thus :-

"26. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. 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. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent now-a days is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. We sum up our conclusions as under: -

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 there: 'duty', 'breach'' and 'resulting damage''. Negligence in the context of 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 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.

A professional may be held liable for negligence on one of the 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 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.

In Prayag Hospital & Research Center Pvt. Ltd. & Anr. Vs. Vijay Pal2016 (2) CPR 2 (NC);

Hon'ble National Commission has observed that "Complainants must provide materials to prove allegation of medical negligence."

In Ashok Kumar Pathak Vs. Dr. Swarnava Roy and Anr.2017 (1)CPR 251 (NC); Hon'ble National Commission has observed that "Medical Negligence must be proved by expert opinion."

13      In the above case the complainant has not been able to prove that the opposite parties have given any wrong treatment to the complainant. The complainant has neither brought in any expert to prove her case. Therefore, we are of the opinion that the complainant has not been able to establish any medical negligence or deficiency in service on the part of the opposite parties.

14      In view of the above discussion, we do not find any merit in the complaint and the same is hereby dismissed. The parties are left to bear their own costs. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

15.11.2022