Chandigarh

DF-II

CC/5/2020

Rajat Singh - Complainant(s)

Versus

PGI - Opp.Party(s)

Adv. Dikshit Arora

03 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II, U.T. CHANDIGARH

 

Consumer Complaint  No	:	05 of 2020
Date  of  Institution	:	06.01.2020
Date   of   Decision	:	03.07.2023

 

 

 

 

 

Rajat Singh son of Sh.Vinod Kumar, R/o House NO.566, Kachi Colony, Dhanas, UT, Chandigarh

             …..Complainant

 

Versus

1]  PGI – Post Graduate Institute of Medical Education and Research, Chandigarh, Kairon Block, Sector 12, U.T., Chandigarh through its Director

2]  Dr.Mukul Kaushal, Surgeon, PGI, Kairon Block, PGIMER, Sector 12, U.T., Chandigarh

3]  Dr.Karan Jindal, Assistant Surgeon, PGI, Kairon Block, PGIMER, Sector 12, U.T., Chandigarh

4]  Dr.Akshat Gupta, Assistant Surgeon, PGI, Kairon Block, PGIMER, Sector 12, U.T., Chandigarh

5]  Dr.Reshma, Anesthetist, PGI, Kairon Block, PGIMER, Sector 12, U.T., Chandigarh

6]  Simran, Senior Nurse, PGI, Kairon Block, PGIMER, Sector 12, U.T., Chandigarh

7]  Mayo Healthcare Super Specialty Hospital, Near Gurudwara Shaheedan, Sector 69, Mohali, Punjab through its Director.

   ….. Opposite Parties

 

8]  Krishan Kumar Aggarwal, son of Late Vidya Parkash Aggarwal, R/o House No.3453, 1^st Floor, Sector 38-D, Chandigarh

 

9]  Vishal Aggarwal, Plot No.39, Coal Depot, Sector 16-D, Chandigarh

 

10] Kuldeep Singh @ Mannu, Charan Singh, Resident House No.3455, Sector 38-D, Chandigarh.

 

….. Performa Opposite Parties

 

BEFORE:  MRS.SURJEET KAUR      PRESIDING MEMBER

                MR.B.M.SHARMA        MEMBER

 

Argued by  :   Sh.Varun Veer Chauhan, Counsel for complainant

      Sh.Gaurav Bhardwaj, Counsel for OP No.1.

      OPs No.2 to 6 exparte.

Sh.Pranjal Vats, Counsel for OP No.7.

None for OPs No.8 to 10

 

PER SURJEET KAUR, PRESIDING MEMBER

         The case of the complainant is that he is a fatherless child and while studying in class 10^th at the age of 15 years, he was made to do the labour work by OPs No.8 & 9 at their Vehicle Washing Station, taking advantage of his poverty.  It is submitted that on 12.3.2016 some dismantling work was going on at the work place of OP NO.9, there OPs No.8 & 9 directed him to remove the debris under roof which was in process of dismantling by the labour and in this process, when the complainant, as directed by OPs NO.8, 9 & 10, was removing the debris from the wheel of the door, a concrete slab fell down on his left leg. It is stated that two-three person, who were working there, took the complainant to General Hospital, Sector 16, Chandigarh but as his condition was critical having been diagnosed as Lacerated wound on (L) Lower Leg, he was referred to OP No.1(PGIMER) (Ann.C-1). Accordingly, the complainant was admitted by OP NO.1 vide Admission No.2016017446, CR No.201602023725, dated 12.3.2016. It is submitted that the complainant was got operated by OPs NO.2 to 6 but at that time of operation, the actual injuries could not be diagnosed due to negligence in treatment despite the fact that the complainant was suffering from Grade III facture of Tibia (Left) P/3 with vascular injury with non salvageable left leg and the laceration were present on left lower leg of the complainant.  It is also submitted that Ops No.1 to 6 at very initial stage had kept the complainant unattended at the premises of OP No.1 and during that particular time, blood was regularly oozing from the leg of the complainant and it was after 12 hours delay, the OPs No.1 to 6 had taken initiative after repeated request of mother of the complainant, which is one of the major factor, which had led to causing of irreparable loss to the complainant.  It is pleaded that the OPs No.2 to 6 who treated the complainant, completely failed to diagnose the actual injuries sustained by the complainant and they conducted the operation and after that external fixture and vascular repair was done but the doctors on duty i.e. OPs No.2 to 6 by doing the same, caused damage of tissue which subsequently caused gangrene and heavy flow of blood from his leg.  It is also pleaded that after seeing such deteriorated condition of the complainant, his mother first requested the OPs No.1 to 6 to give care to her child but when they did not give proper attention & care then, she in order to save the life of her son, who was suffering for immense pain and left with no option, requested the OPs to shift her son to any other hospital due to their failure in providing proper medical treatment whereupon the OPs No.2 to 6 forced her to take LAMA in order to save themselves from the wrong treatment given to the complainant.  It is further pleaded that in the said LAMA, the OPs No.1 to 6 forced the mother of the complainant who is an illiterate person, to put her signature on the pre-written paper i.e. LAMA Summary in order to save themselves from any responsibility for any complication thereafter (Ann.C-1).  It is asserted that the OPs No.1 to 6 have taken the forcible signature upon the said LAMA as they were well aware that due to wrong diagnose and treatment of the complainant, he had presumably developed gangrene and thus the OP No.1 in order to save themselves from legal action, which might be taken by the complainant against them, took forcible signature of the mother of the complainant without disclosing about the contents of the same.  Then the complainant was taken to Mayo Healthcare Hospital, Mohali- OP No.7 for further treatment and he was admitted vide Admission No.12643, dated 13.3.2016 and there the doctors on duty found that due to negligent treatment given by OPs No.1 to 6, the complete arteries were blocked below Popliteal region and the doctors conducted the surgery upon the complainant and amputated the left leg of the complainant to save his life.   It is also asserted that the mother of complainant due to amputation of the left leg of the complainant, fell ill and suffered brain attack which caused epilepsy and now she is on bed and dependent upon others. 

         It is stated that due to amputation of left leg, the complainant suffered life-changing injury, which involves a considerable period of readjustment and besides this, the complainant have gone through a painful procedure and his life has become dependable upon the others.  It is also stated that the doctors of OP No.7 diagnosed that there was delay in the treatment of the complainant by OP No.1 and the left of the complainant was not properly operated and the infection spread over in entire leg of the complainant due to delay in treatment, the doctors of OP No.7 found that complete arterial were blocked below political region and then amputated the leg of the complainant to save his life.  It is pleaded that the complainant has lost his leg due to medical negligence of OPs No.1 to 6.  In case the OPs have acted properly while discharging their official duties, then the left leg of the complainant might have been saved but due to gross negligence of OPs No.1 to 6, the complainant lost his left.  The matter was also reported to the Police whereupon FIR No.316, dated 11.8.2016 under Section 288/336/338 IPC at Police Station Section 17 Chandigarh was registered and the same is pending adjudication before the court of Sh.Abhishek Phutella, CJM, Chandigarh (Annexure C-5).  It is pleaded that apart from spending huge amount on the treatment of complainant, the complainant also suffered 75% permanent disability (Ann.C-6).  Hence, the present complaint has been preferred.

 

2]       The OP No.1 has filed written version stating that there is no negligence on the part of treating doctors of the PGI as there is no act or omission on their part which can be considered as not performing their duties as per the established Medical norms and ethics with regard to the treatment of the patient. It is stated that the patient presented to the Advanced Trauma Centre. PGIMER, Chandigarh on 12.3.2016 at approximately 11.57 AM with alleged history of fall of heavy object on his leg at 10.00 AM on the same day, he was first taken to General Hospital, Sector 16, Chandigarh and then sent to OP No.1 with a referral slip to manage the fracture and the associated vascular injury. It is also stated that the patient had open fracture Irft proximal tibia grade IIIc with neurovascular deficit, his peripheral pulses were absent below the left knee, his distal lower limb was cold to touch, insensate and pin prick sensation was absent on all toes.  It is submitted that it is informed that as per vascular injury protocol the Plastic Surgery as well as the Vascular Surgery team was notified and expert opinion taken from them and a Doppler study as well as a CT angiography was done of the left lower limb. It is also submitted that the Doppler study of the left lower limb showed no flow over the leg distal to the popliteal artery, the CT angiography of the left limb showed thrombus in the distal popliteal artery with obliteration of sistal flow. The Plastic Surgery team examined the patient and advised urgent exploration for repair of vascular elements of left lower limb and they also requested a general surgery review for assessment.  It is pleaded that the general surgery vascular team also assessed the patient in emergency and advised a fasciotomy and intra operative assessment of the muscles to decide for limb salvage or amputation. It is also pleaded that Consent for guarded prognosis/poor functional outcome of surgery was explained in vernacular language to the brother (Ajeet Singh) and Mother (Anju Kumari) of the patient; the patient was taken up for surgery on 12.3.2016 where the Orthopaedics team lead by senior resident Dr.Mukul Kaushal did a faciotomy and applied a trans articular fixator from the femur to the tibia and the patient was then handed over to the general surgery vascular team. It is asserted that the Vascular team did a vascular repair (left popliteal fossa exploration and fogartization of posterior tibial artery and reverse great saphenous vein graft left side); Post operatively patient was stable and blood transfusion was carried out and an intensive care unit on assessment was also taken. The post operative limb status was still the same as the pre operative status and showed no flow in the peripheral vessels.

          It is stated that on 13.03.2016 patients attendants wanted to leave against medical advice (LAMA) consent was signed by the patient relative where they were told about the complications which may arise if they took the patient away from the hospital. It is also stated that the medical case records clearly document the vascular injuries as well as the management protocol undertaken to treat them. It is further stated that the patient’s attendants were explained about the grave condition of the patient as they have consented for the surgery.  It is alleged that the patient relatives have on their own risk requested to take a leave against medical advice (LAMA) on 13.03.2016, the LAMA summary is duly signed by the brother Ajeet Singh and mother Anju Kumari on 13.03.2016.  It is pleaded that no negligence can be attributed against the PGI or any other concerned doctors who were involved in imparting treatment to the patient Rajat. It is pleaded that the treating doctors of the PGI are very well qualified and possess the requisite medical knowledge and skills.  It is submitted that the doctors of the PGI have discharged their medical functions to the utmost of their abilities and there is no act or omission on the part of the treating doctors which could have resulted in harm or injury to the patient.  It is also pleaded that the doctors of the PGI have provided adequately possible medical care to the patient, keeping in mind the medical condition of the patient, rather the patient relatives have on their own risk requested to take a leave against medical advice (LAMA) on 13.03.2016, which is duly signed by the brother Ajeet Singh and mother Anju Kumari on 13.03.2016.  Denying all other allegations, a prayer for dismissal of the complaint has been made.

         The OPs No.2 to 6 did not turn up despite having been served through publication, hence they were proceeded exparte vide order dated 16.3.2022.

 

         The OP No.7-Mayo Healthcare has also filed reply stating that the complaint is not maintainable against it.  It is submitted that answering OP treated the complainant as per the expert advice and which were the requirement at that time and he was discharged after proper treatment given by OP No.7.  It is pleaded that the doctors of OP No.7 gave proper treatment to the complainant and as per expert medical advice amputated the left leg of the complainant so as to save his life. Denying other allegations and pleading no deficiency on its part, the OP No.7 prayed for dismissal of complaint qua it.

         The OPs No.8 to 10 failed to file reply & evidence within stipulated period of 45 days, hence their defence was struck off vide order dated 16.2.2022.

 

3]       The parties led evidence in support of their contentions.

 

4]       We have heard the ld.Counsel for the contesting parties and have gone through the documents on record including written arguments.

 

5]       At the time of arguments, the Counsel for the OPs has vehemently contested that the complaint filed by the complainant, who was treated in a government hospital qua hospital and the doctors attending to him, is not maintainable before this Commission in view of the ratio of law settled in the latest judgment  of the Hon'ble Supreme Court of India passed in Civil Appeal No.103 of 2012-Nivedita Singh Vs. Dr.Asha Bharti  & Ors., decided on 7.12.2021. 

 

6]       In view of the aforesaid submission of the Learned Counsel for the OPs, the first question to be determined before us is as to whether the present complaint filed by the complainant before this Commission is maintainable qua the OPs or not?

 

7]       The Hon'ble Supreme Court of India in the judgment aforesaid has held as under:-

                 The present appeal is directed against an order passed by National Consumer Disputes Redressal Commission (for short, ‘NCDRC’) on 26.05.2010 affirming the order passed by the District Consumer Disputes Redressal Forum and the State Consumer Disputes Redressal Commission, dismissing the complaint filed by the appellant inter alia on the ground that the appellant was not a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 (for short, ‘the Act’).

                  Learned counsel for the appellant relies upon a receipt dated 27.08.2004 of payment of Rs.266/- as service charge to the District Women Hospital, Ghazipur. It is admitted by learned counsel for the appellant that no consideration was paid to the doctors who were in fact the Government servants.

                  In terms of Section 2(1)(d)(ii) of the Act, a consumer is the one who hires or avails of any services for a ‘consideration’ which has been paid or promised or partly paid or partly promised.

                  Since the admitted case of the appellant is that the appellant has not paid any consideration for availing the services of the respondents - doctors and the nurses, she would not be covered under the definition of consumer to avail the remedies under the Act. In fact, in a common written statement filed, an objection was raised that the appellant should file a suit in a competent Civil Court by depositing proper court fee and not in Consumer Court as the suit is not maintainable before the Consumer Court.

                  Learned counsel for the appellant relies upon a judgment of this Court reported in (1995) 6 SCC 651 titled “Indian Medical Association Vs. V.P. Shantha & Ors.” to contend that payment for service availed is not a necessary ingredient to file a complaint under the Act. However, we find that the said argument is not tenable in view of the following findings recorded:-

“45. In respect of the hospitals/nursing homes (government and non-government) falling in category (i), i.e., where services are rendered free of charge to everybody availing of the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does not fall within the ambit of Section 2(1)(o) of the Act insofar as the hospital is concerned, the said service would fall within the ambit of Section 2(1)(o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. There is no merit in this contention. the medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1) (o), being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing the service a "consumer" under Section 2(1)(d) in respect of the service rendered to him. The service rendered by the employee-medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o).”

                        A reading of the above para shows that a medical officer who is employed in a hospital renders service on behalf of the hospital administration and if the service as rendered by the Hospital does not fall within the ambit of 2(1)(0) of the Act being free of charge, the same service cannot be treated as service under Section 2(1)(0) for the reasons that it has been rendered by medical officer in the hospital who receives salary for the employment in the hospital. It was thus concluded that the services rendered by employee-medical officer to such a person would therefore continue to be service rendered free of charge and would be outside the purview of Section 2(1)(0) of the Act.

                        In view thereof, we do not find any merits in the present appeal and the same is dismissed.

            Pending application(s), if any, also stand disposed of.

 

………..…………J.

[HEMANT GUPTA]

 

 ……………………………J.

 [V. RAMASUBRAMANIAN]

New Delhi:

7th December, 2021”

 

8]       The ratio of the law settled in the aforesaid judgment of the Hon'ble Apex Court is squarely applicable to the facts and circumstances of the case in hand. In view of the ratio of law settled by the Hon’ble Apex Court in the judgment aforesaid, we have no hesitation to conclude that the services rendered by the hospital and the doctors who are governments servants to the complainant would therefore continue to be service rendered free of charge and would be outside the purview of Section 2(1)(0) of the Act. We are, therefore, of the considered view that the complaint filed by the complainant is not maintainable qua the hospital and the doctors of the hospital before this Commission.

9]       In view of the above discussion, the present complaint is dismissed with no order as to costs. However, the complainant is at liberty to file a civil suit before the competent court of jurisdiction.  The complainant may take advantage of the ruling of the Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583, to seek exclusion of time spent before this Commission. 

10]      The pending application(s) if any, stands disposed of accordingly.

         Certified copy of this order be sent to the parties, free of charge. After compliance, file be consigned to record room.

Announced

3^rd July, 2023               

                                                                                                            Sd/-

 (SURJEET KAUR)

PRESIDING MEMBER

 

Sd/-

(B.M.SHARMA)

MEMBER