BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complt. Case No :  215 of 2009

Date of Institution:   12.02.2009

Date of Decision  :   08.07.2010

1]          Seema Gupta aged about 38 years widow of Late Sh.Shyamu,

2]       Surjit Kumar aged about 18½ years son of late Sh.Shyamu,

3]       Amit Kumar aged about 11 years, minor son of Late Sh.Shyamu,

4]       Rinku Kumari aged about 6 years minor daughter of late Sh.Shyamu,

5]       Anil Kumar aged about 4 years minor son of Late Sh.Shyamu,

minors through their mother, guardian and next friend Smt. Seema Gupta,

All residents of H.No.99, Street No.3, Ram Nagar, Bhamian Kalan, Ludhiana.

 ……Complainants

V E R S U S

1]          Nehru Hospital Post Graduate Institute of Medical Education & Research (P.G.I.), Chandigarh through its Director.

2]       The Director/Medical Superintendent, Nehru Hospital Post Graduate Institute of Medical Education & Research (P.G.I.), Chandigarh.

3]          Professor K.K.Talwar, Consultant, Department of Cardiology, Nehru Hospital Post Graduate Institute of Medical Education & Research (P.G.I.), Chandigarh.

4]          Dr.Manoj, Consultant, Department of Cardiology, Nehru Hospital Post Graduate Institute of Medical Education & Research (P.G.I.), Chandigarh.

5]          Dr.Dhiraj, Senior Resident, Department of Cardiology, Nehru Hospital Post Graduate Institute of Medical Education & Research (P.G.I.), Chandigarh.

6]          Dr.Parveen K., Department of Cardiology, Nehru Hospital Post Graduate Institute of Medical Education & Research (P.G.I.), Chandigarh.

.…..Opposite Parties

CORAM:          SH.LAKSHMAN SHARMA                         PRESIDENT

                    SH.ASHOK RAJ BHANDARI            MEMBER

                    MRS.MADHU MUTNEJA                        MEMBER

PRESENT:     Sh.B.B.Sobti, Adv. for the complainant.

Sh.Rajesh Garg, Adv. for the OPs No.1 to 4.

OPs 5 & 6 already exparte.

PER MADHU MUTNEJA, MEMBER

                    The instant complaint has been filed by the legal heirs of deceased Shyamu under the Consumer Protection Act praying for grant of compensation of Rs.20 lacs from the OPs, on account of death of Sh.Shyamu, who as alleged by them died due to deficient, negligent and improper medical treatment given by the OPs

1]                 A brief summary of the facts of the case is as under:-

          Sh.Shyamu, aged about 37 years, who was the husband of Complainant No.1 and father of Complainants No.2 to 5, was suffering from rheumatic heart disease.  He had been taking medical treatment for this ailment from Rama Charitable Hospital, Ludhiana since August, 2006.  He went to E.S.I.Hospital for treatment in Nov., 2006.  There it was diagnosed that his condition was serious, and he was referred to PGI, Chandigarh as he needed immediate surgery of the heart. His was a case of severe Aortic Stenosis with Aortic Regurgitation with Mitral Regurgitation with Tricuspid Regurgitation with Left Ventricular Hypertrophy. The expenditure for the complete surgery was estimated at about Rs.2.00 lacs.

                    The Director, Health Services, Punjab, Chandigarh was requested to sanction the amount required for the surgery.  An amount of Rs.1.70 lacs was sanctioned and directly paid to the PGI, Chandigarh in Jan., 2007 towards the expenses of the heart surgery. The patient was admitted to PGI for the first time on 26.4.2007.  Various routine investigations required prior to the surgery were carried out, after which the patient was discharged on 28.4.2007.  At the time of discharge, the patient was asked to arrange 5 units of blood for the surgery.  On 17.5.2007 the complainant was again admitted, put on various medications and discharged on 18.5.2007.  The patient was again admitted on 25.5.2007. After more investigations, he was discharged on 26.5.2007.  The blood for the surgery was also arranged by the patient and donated to the PGI.  The patient again visited PGI on 4.6.2007.  On this date, as per the noting on the card of PGI, the doctor on duty recommended to the Senior Resident in the Ward to admit the patient in the Ward. On the same date the doctor later noted on the Card : “PATIENT IS NOT WILLING FOR ADMISSION AT PRESENT”.  So the patient went/was sent back home.

                    Thereafter, the patient did not visit the PGI again.  He died on 19.6.2007. 

                    The complainants allege that the noting made in the Discharge and Follow-up Card stating that the ‘PATIENT IS NOT WILLING FOR ADMISSION AT PRESENT’ is by the hands of a Junior Doctor and indicative to cover-up the lapse, negligence and deficiency in service on the part of the treating doctors of PGI since the treating doctors had realized that by delaying the surgery of the patient, the condition of the patient had worsened.  According to them, this attitude of the doctors was totally callous, reckless, rash and negligent and the noting on the Discharge Card was only to cover up their own wrongs by the treating doctors.  After the death of the patient, the complainants sent a legal notice dated 8.3.2008 to the OPs by registered post claiming compensation of Rs.20.00 lacs for the loss suffered by them on account of untimely death caused by the negligence, lapse and deficiency in treatment rendered by the OPs to Sh.Shyamu.  Since the OPs failed to reply to the notice or make payment of the compensation, the complainants have filed the instant complaint alleging that with the untimely death of the patient, his widow and other legal heirs need to be compensated for the loss suffered due to the negligence of the OPs.

2]                 Before issuing notice to the OPs, the matter was referred to a Committee of Experts of Government Medical College & Hospital, Sector 32, Chandigarh for giving their opinion.  The relevant extract from the report received on 3.9.2009 is reproduced below:-

“After scrutiny of the records provided, the committee is of the opinion, that the alleged reasons for delay in surgery are not clear.  Also, in busy hospitals like PGI the waiting list for surgeries sometimes runs into weeks to months and the exact reason for alleged delay in conducting cardiac surgery are therefore not obvious. The committee is unable to give any further opinion on this aspect of the case.” 

3]                 After admission, notices were sent to all the OPs.  The OPs No.1 to 4 have filed reply while notices sent to OPs No.5 & 6 were received back undelivered with the remarks “refused”.  Since refusal amounts to service and none appeared on their behalf on the next date of hearing, they were proceeded exparte on 20.3.2009.

4]                 OPs No.1 to 4 in their reply have taken preliminary objections that the complaint deserves to be dismissed pursuant to the report of Medical Board, dated 3.9.2009, since it clearly indicates that the treatment given to the deceased patient was adequate and the patient was not willing for admission at the relevant stage. 

                    On merits, they have admitted that money has been deposited for the surgery of the patient.  Similarly arrangement of blood units is sought from all patients in the likely event of blood required for transfusion at the time of surgery.  Whether the patient needs surgery at a relevant time over and above other emergency cases pending in the Institute is for the concerned doctor to decide.  The surgery of the patient was postponed not due to any malice/motive of the answering OPs.  The Discharge and follow-up Card remains with the patient and there can be no occasion to manipulate or tamper with the same.  The tests/investigations carried out on the patient are mandatory before any elective surgical procedure.  The death of the patient though unfortunate, was not on account of any medical negligence of the OPs and definitely not connected with Summer Vacations of OP Institute. Thus the OPs have prayed for dismissal of the complaint saying that there was no malice, negligence or deficiency in providing medical treatment to the deceased patient. 

5]                 We have heard the learned counsels for the parties and perused the evidence led by the parties in support of their contentions. 

6]                 At the time of arguments, the ld.Counsel for the complainant stressed that the PGI should have issued L.A.M.A. (Left Against Medical Advise) Certificate to the patient on 4^th June, 2007 when the Doctor recorded that he was not willing for admission at that time.  However, there is no law placed on record to show that this certificate is mandatory. Just because the patient never came to the PGI again because of his death, the complainants have picked up cudgels against the doctors on duty, and the PGI authorities, demanding compensation by trying to prove that the doctors did not act prudently.

                    In case of C.P.Sreekumar (Dr.) Vs. S.Ramanujam, (2009) 7 SCC 130, it was held that “the onus of proving medical negligence lies on complainant – Mere averment in complaint is not evidence……………………………………………………………………

Held, bald statement cannot be accepted.” 

                    Further in the case of Kusum Sharma Vs. Batra Hospital, (2010) 3 SCC 480, it was reiterated that : 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.”

7]                 There is no evidence on record to prove that the doctors were negligent or lacked any skill for treating the patient.  Even though timing of surgery is crucial for such a patient as surgery performed too late does not benefit the patient due to damage already done but no doctor can do anything without the patient’s consent.  And in this case, it is recorded on the Follow-up Card maintained with the complainants that it was the patient who was not willing for admission.  Though this aspect is vehemently denied by the counsel for the complainant, but the attendant circumstances highlight the correctness of the noting by the doctors on the record file.

8]                 As per record submitted by his heirs, the patient never visited the PGI, Chandigarh after 4^th June, 2007.  He died 15 days later on 19.6.2007.   These 15 days were crucial for the life of the patient and by not coming to PGI, the patient himself brought this eventually on himself.

9]                 As per Jacob Mathew (Dr.) Vs. State of Punjab and Anr., 2005(6) SCC 1, Medical Negligence has been explained as under:- 

“There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish.  Things have gone wrong and, therefore, somebody must be found to answer for it.  An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed.  It can be demonstrated that actual blame for the outcome has to be attributed with great caution.  For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not.  The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheet chance may have combined to produce a result in which the doctor’s contribution is either relatively or completely blameless.”

10]               In view of the above discussion and settled position of law, we have come to the conclusion that none of the OPs were negligent in treating the deceased patient.  His death was a natural cause of the circumstances.  The operation was not performed since he himself refused admission on the last date of his visit to the PGI.  No case of medical negligence against the OPs can be made out.  This complaint is thereby hereby dismissed. The parties are left to bear their own costs.  

                    However, the OPs No.1 & 2 are directed to immediately refund the complete amount of Rs.1.70 lacs, deposited with them for the deceased patient.

11]               Certified copies of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

08.07.2010                                                                                Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                                                   Sd/-

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                                   Sd/-

                                                             (MADHU MUTNEJA)

MEMBER

‘Om’