Chandigarh

DF-I

CC/682/2015

Sh. Sarbjit Singh - Complainant(s)

Versus

Nehru Hospital, Postgraduate Institute of Medical Education And Research - Opp.Party(s)

Pankaj Chandgotia

16 Mar 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

 

                               

Consumer Complaint No.	:	CC/682/2015
Date of Institution	:	08/10/2015
Date of Decision	:	16/03/2017

 

Sh. Sarbjit Singh s/o Sh. Gurcharan Singh r/o 103, Sodal Nagar, Jalandhar-144004 Natural Guardian, being father of Ms. Gurnaz Kaur.

…..Complainant

V E R S U S

Nehru Hospital, Postgraduate Institute of Medical Education and Research, Chandigarh 160012, through its Chairman/Administrator/Manager.

……Opposite Party

CORAM :	S.S. PANESAR	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

 

                                                                       

ARGUED BY	:	Sh. Abhinandan Pandhi, Counsel for complainant
	:	Sh. Paras Money Goyal, Counsel for OP

 

Per S.S. Panesar, President

1.         The facts of the consumer complaint, in brief, are that the complainant’s daughter Ms. Gurnaz Kaur is suffering from Thalassemia and a member of Thalassemic Children Welfare Society (Regd.), Jalandhar. On the advice of the doctors at Jalandhar, the complainant brought his daughter to the OP for treatment on 16.4.2013 in the OPD on which date samples were taken. On 24.9.2013, the concerned team of doctors of the OP diagnosed Thalassemia screening. On the advice of the doctors, the complainant got blood transfusion on various dates from Jalandhar.  On 29.10.2014, the concerned team of doctors of the OP again checked up Ms. Gurnaz Kaur.  On the advice of the doctors of the OP, the complainant got the test of HCV Quantitative (Viral Load) PCR done at Jalandhar. On 19.11.2014, the complainant again visited the OP and team of doctors checked Ms. Gurnaz Kaur and admitted her for treatment of Liver Biopsy and conducted several tests. On 21.11.2014, the complainant’s daughter was discharged and thereafter the complainant visited the OP on various dates, as advised. On 21.2.2015, the doctors of the OP again admitted the complainant’s daughter for treatment.  On 27.2.2015, the complainant was asked to immediately purchase Peginterferon alfa – 2a injection Exxura @ 135 mcg/0.5 ml. and ribavirin and large/big syringe. After treatment, Ms. Gurnaz Kaur was discharged on 27.2.2015 with directions to get aforesaid injection injected only from the OP.  After 5^th injection on 27.3.2015, the concerned doctors advised the complainant to get the injection injected from Jalandhar to avoid harassment. After 12 weeks, as per the advice of the doctors of the OP, the complainant visited the OP with his daughter on 10.6.2015 and the concerned doctors were shocked to find that Ms. Gurnaz Kaur was not responding to the treatment and he was told to come on 12.6.2015 for administration of 16^th injection. The complainant was stunned to see that the injection was administered without diluting by mixing distilled water. When the complainant pointed out the said fact, Dr. Jagdish of the OP got the discharge and follow up card of the child from the complainant for making enquiry and issued a fresh one.  It has been alleged that instead of administering five injections, 15 injections of diluted dose were administered to Gurnaz Kaur resulting in more damage to her body. The disease of Ms. Gurnaz Kaur instead of improving started decreasing. The iron in the body of Ms. Gurnaz Kaur increased and further required more treatment.  Alleging that the aforesaid acts amount to negligence, deficiency in service and unfair trade practice on the part of the OP, the complainant has filed the instant complaint. 
2.         The OP in its written reply has not disputed the factual matrix of the case. It has been averred that the child of the complainant was suffering from Thalassemia major since birth which require lifelong blood transfusion and liver damage due to an iron overload is an established consequence of the disease. For this disease frequent hospital visits for blood transfusion and checkups are mandatory. Hepatitis C which the child contracted due to blood transfusion received outside PGIMER would have hastened the deterioration of the liver status.  Thalassemia is not curable without bone marrow transplantation and is invariably associated with many complications.  It has been contended that treatment given is as per the procedure and recommendation of the protocol and the disease of the patient did not deteriorate as a result of the treatment. Various side effects and success rate of treatment as well as need to maintain hemoglobin of the child around 9gm% by periodic blood transfusion and the possible need for iron chelation therapy was duly and clearly explained to the parents. Pleading that there is no deficiency in service, medical negligence or unfair trade practice on its part, OP prayed for dismissal of the complaint.
3.         Rejoinder was filed by the complainant denying all the averments in the written statement of OP.
4.         The parties led evidence in support of their contentions. 
5.         We have gone through the record, including the written arguments, and heard the arguments addressed by the learned Counsel for the parties.
6.         On the basis of the evidence on record, learned counsel for the OP has vehemently contended that the complainant has been accusing OP for negligence in providing treatment to Ms. Gurnaz Kaur, his minor child. The complainant has indulged in stealing the records of PGI. The complainant has taken away the records without disclosing the said fact to the OP. The present complaint deserves to be dismissed on this ground alone; rather a separate action for the offence of perjury may be initiated against the complainant. The complaint is false and is liable to be dismissed summarily. A reference in this connection has been made to S.P. Chengalvaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and Ors., AIR 1994 SC 853, wherein it has been held as follows :-

“We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of litigation.”

It has further been argued that adjudication of the present complaint requires detailed and voluminous evidence which cannot be permitted in summary jurisdiction vested with this Forum, as such, the present complaint deserves to be dismissed.  A reference in this connection has been made to Oriental Insurance Co. Ltd. Vs. Munimahesh Patel, IV (2006) CPJ 1 (SC) wherein it has been held that the complete factual position requires that the matter should be examined by an appropriate court of law and not by the Commission. It has further been contended that the complainant has resorted to all unethical ways by recording the conversation being claimed to be recorded on mobile phone. The complainant has not supplied any copy of the CD of the alleged recording. The said recordings are, however, denied without being proved. There are other grounds on which the present complaint is liable to be dismissed which are as follows :-

i)      That there has neither been any deficiency in service nor unfair trade practice on the part of the OP.

ii)     That the complaint in dispute is nothing but an abuse of process of law. The complainants have not been empowered by any law to take the benefit of their own wrongs. 

iii)    That the complainants have unnecessarily dragged the OPs into unnecessary litigation, therefore, the complaint is liable to be dismissed with exemplary costs u/s 26 of the Consumer Protection Act.

As a matter of fact, the child of the complainant was admitted for liver biopsy under Pediatric Gastroenterology unit and was discharged on 21.11.2014. Subsequent thereto, the liver biopsy report was reviewed and the Genotyte of Hepatitis-C virus was tested. The patient was re-admitted to start treatment after due care and discussion amongst the treating doctors of the Pediatric Gastroenterology Team on 21.2.2015.  No harm was done to the patient due to medication prescribed at PGIMER.  The disease itself requires lifelong blood transfusion and liver damage due to iron overload is an established consequence of the disease. For this disease frequent hospital visits for blood transfusion and checkups are mandatory. Hepatitis C, with which the child was suffering, appears to have been contracted due to blood transfusion received outside PGIMER, which has hastened the deterioration of the liver status. Thalassemia is not curable without bone marrow transplantation and is invariably associated with many complications.  Further, the father of the child himself is a diabetic patient. So, the family was already under emotional and mental stress.  Whatever tests and travel costs are being attributed to PGI were undertaken by the family entirely for their own convenience, though option of testing from PGI was given to the complainant.  Hence, it is very unfair to blame PGIMER for all the problems the family was suffering from. The patient was not seen by Pediatric Gastroenterology team, but, was seen by the Pediatric Hematology at Advanced Pediatric Centre, PGI, Chandigarh.  The treatment and test in this period were as per advice of Pediatric Hematology clinic of PGIMER and Thalassemia Child Welfare Society at Jalandhar. As per recommended protocol, which is Annexure OP-1 to OP-3, it was decided that since the patient had two diseases, both of which were damaging liver i.e. iron overload because of thalassemia major and Hepatitis C and because the likelihood of early complications were more in this situation, the most appropriate treatment benefiting the child was started on Ribavarin 200 mg. per day  and Peginterferon 2a in a weekly dose of 25-27 microgram subcutaneously i.e. 0.1 ml. sc of the injection containing 135 microgram in 0.5 ml.  Thus, each injection would last for 5 doses and a total of 24 doses over weekly intervals would be needed in all. Hence, six injections of 135 microgram each would be needed for the entire course of treatment. This was duly explained to the parents at the time of admission.  In addition, various side effects and success rate of the treatment as well as the need to maintain hemoglobin of the child around 9gm% by periodic blood transfusion and the possible need for iron chelation therapy was duly and clearly explained to the parents. At no point of time, the patient was referred to any private lab/clinic for tests.  This was got done by the complainant for his own convenience. It is denied that the concerned doctor felt the mistake; rather the treatment given to the patient was in her interest taking into consideration the age and ailment. The complainant himself admits that no physical harm was done to the patient.  The disease of the patient did not deteriorate as a result of treatment.  There was no significant further increase in iron overload of the patient after treatment. The blood transfusion administered was for the treatment of the basic underlying disease of thalassemia major which required blood transfusion. The patient was improving on account of treatment. It is emphasized that the current treatment being given to the patient is exactly the same as prescribed at PGI. 

                It is further contended that the instant complaint is nothing but an abuse of the process of law and, as such, the same is liable to be dismissed with exemplary costs and, therefore, it is requested that the complaint may be dismissed.

7.         But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that facts and evidence itself are res ipsa loquitur.  They throw light upon the negligence, apathetic attitude and conduct of the treating doctors of the OP towards the patient. There are two discharge and follow up cards, when first discharge and follow up card existed, there was no reason or justification for issuing a second discharge and follow up card.  From the reply of the OP it is clear that it does not deny the existence of such record, but, only accuses the complainant for stealing the record from its possession.  No follow up action against the complainant has been taken by the OP, which shows that the charge of stealing the record, has been cooked up by the OP in order to non-suit the complainant. When the contents of second discharge and follow up card are compared to the first discharge and follow up card, the negligence of OP comes to the fore.  The first follow up and discharge card shows the brief summary of patient Ms. Gurnaz Kaur, wherein she is shown to be suffering from thalassemia intermedia and that she had undergone liver biopsy of diagnosis of Hepatitis C.  Further medicine recommended by the treating doctors and dosage and potency recommended of Peginterferon alfa – 2a injection Exxura 135 mcg/0.5 ml and Ribavarin has been explained. It can be seen that the treating doctor has directed that the injection has to be administered in distilled water by dilution. This dosage was followed upto administration of 15 injections to the child.  Now when the second discharge and follow up card is perused, it can be seen that the contents in it are completely changed and different. Even dosage and potency recommended of Peginterferon alfa – 2a injection Exxura 135 mcg/0.5 ml is completely changed from the earlier dosage and potency so recommended and the administration of it was to be done without any dilution with water.  No history or summary of the patient has been mentioned in the second discharge and follow up card as is available in the first discharge and follow up card while the patient was admitted on November 19, 2014 and discharged on November 21, 2014.  No reasons have been assigned as to why there is no treatment summary of the patient so admitted to the Hospital, which further exhibits the malafide conduct of the OP. In fact, in the second discharge and follow up card, there is mention of prescription dated 19.6.2015 for administration of above mentioned injection in pure form which raises further doubt as to why no summary or history has been mentioned even though the patient was indoor. 
8.         It becomes further evident that as per report dated 2.11.2014 and report dated 3.6.2015 prior to commencement of treatment of Ms. Gurnaz Kaur with the OP, her Hepatitis C lab report dated 2.11.2014 read as 25,90,479 IU/mL [HCV Quantitative (Viral Load) PCR] and report dated 3.6.2015 read as 35,89,713 IU/Ml [HCV Quantitative (Viral Load) PCR]. The reports themselves depict the fact that despite administering 15 injections, instead of reduction in viral load of the disease, there has been an increase in the same.  This was primarily on account of the fact that the treatment carried out by the OP after dilution of the dosage further aggravated the ailment of the patient.  It is further pertinent to note that the fact of negligence on the part of the treating doctors with regard to wrong dosage of injection was administered by Dr. Jagdish and Dr. Sadhna. A CD and transcription of their conversation has been adduced on record.  Although the CD has not been displayed in court being inadmissible, yet, there is no serious objection regarding the transcription and the same has not been specifically denied by the OP.  As a result of the treatment provided by the OP, the chronic ailment of Ms. Gurnaz i.e. Thalassemia Intermedia, with prolonged treatment of peg interferon alfa - 2a combined with ribavirin increased blood transfusion and thereby made the body of the patient transfusion dependent leading to indirect transformation to thalassemia major. Due to long treatment and wrong dosage, continuous intake of ribavirin resulted into side effect of decrease of RBL in the body of the patient leading to anemia and in such circumstances close monitoring of hemoglobin is required because of increased risk of hemolysis. Since there was lurking danger of reduction in level of hemoglobin and the fact that at least a level above 98/dl was required to be maintained, there used to be blood transfusion time and again as is evident from the transfusion details attached with the complaint.  Consequently, the disease of the patient got changed from thalassemia intermedia to thalassemia major, which finds support from the medical jurisprudence extracted from google search from internet adduced on record. As a matter of fact, the doctors of the OP did not properly administer the appropriate potency medicine to the patient and as a consequence, her treatment got prolonged and at present the body of the patient has become accustomed to blood transfusion at shorter intervals. As such, the negligence and deficiency in providing service is writ large.
9.         The contention that since intricate questions of law and fact are involved in this matter and lengthy evidence is required, which is not possible under summary jurisdiction, is concerned, the same is not tenable because this Forum is invested with all the powers with which a civil court is vested with.  We draw support on this point from CCI Chambers Co-op. Hsg. Society Ltd. Vs. D.C. Bank Ltd.,  2004 (1) CPC 1 (SC) wherein it has been laid down that mere complicated nature of the facts and law arising for decision would not be decisive for driving away the complainant to the civil court.  Further reliance can be had on Dr. J.J. Merchant Vs. Shrinath Chaturvedi, 2002 AIR (SC) 2931 wherein similar proposition of law has been echoed. As such, we hold that the District Consumer Forum is fully empowered to deal with the complaint and there is no need for relegating the complaint to the civil court for adjudicating the controversy. 
10.         From the aforesaid discussion, it transpires that the OP as well as the treating doctors were negligent in treating the patient namely Ms. Gurnaz Kaur. The complainant has not arrayed the treating doctors as party to the complaint, but, the OP has not denied that the erring doctors were its employees or that they attended the patient, therefore, the OP is vicariously liable for the negligence and deficiency in service on the part of erring employees.
11.         Consequently, the present complaint deserves to succeed and the same is partly allowed.  The OP is directed as under:-

(i)     To pay to the complainant Rs.2,00,000/- as  compensation for deficient services regarding the treatment of his minor daughter Ms. Gurnaz Kaur.

(ii)    To pay to the complainant Rs.5,000/- as costs of litigation. 

12.         This order be complied with by the OP within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amount mentioned at Sr.No.(i) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(ii) above.
13.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
16/03/2017	[Suresh Kumar Sardana]	[Surjeet Kaur]	[S.S. Panesar]
hg	Member	Member	President