BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 276 of 2020.
Date of Institution : 09.11.2020.
Date of Decision : 30.04.2024.
Sardari Lal aged about 69 years son of Shri Harichand, resident of village Kotli, Tehsil and District Sirsa, Haryana.
……Complainant.
Versus.
1. Poonia Nursing Home & Heart Care Center through its Director, Near Surkhab Chowk, Hisar Road, Sirsa, Haryana.
2. The Oriental Insurance Company Limited, 4E/14, Azad Bhawan, Jhandewalan Extension, New Delhi – 110055.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
Before: SH. PADAM SINGH THAKUR ………………PRESIDENT
SMT. SUKHDEEP KAUR……………………….MEMBER.
Present: Sh. Parveen Godara, Advocate for complainant.
Sh. A.K. Gupta, Advocate for opposite party no.1.
Sh. K.L. Gagneja, Advocate for opposite party no.2.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party(s) (hereinafter referred to OPs).
2. In brief, the case of complainant is that complainant was admitted in op no.1 hospital on 29.02.2020 for complaint of chest pain and after various medical tests, he was advised by doctor of op no.1 to undergo heart operation who stated that stent need to be implanted in heart for proper function of heart. That complainant agreed for this and doctor of op no.1 operated the complainant for putting stents but due to negligence of doctor the condition of complainant got worsened and doctor asked the relatives of complainant to take him to another hospital upon which complainant was taken to OP Jindal Institute of Cancer & Cardiac Research Hisar on the same day. It is further averred that at the OP Jindal Institute of Cancer & Cardic Research, Hisar, the complainant was diagnosed and the doctors gave their finding qua the fact that “PTCA & stenting tried at Poonia Hospital, Sirsa. During procedure stent get stucked at OSTI of right CORONARY ARTERY” and the complainant remained admitted at OP Jindal Hospital, Hisar till 13.03.2020. That at the time of discharge of complainant from op no.1 hospital, the doctor had not disclosed anything to the relatives of the complainant that complications occurred during the operation of complainant instead the doctor had simply told them to take the complainant to some other hospital whereas the doctors were fully aware of the fact that complication had occurred during operation due to negligence of doctor and staff of op no.1 intentionally hided this fact from the relatives of complainant. This clearly shows negligence on the part of op no.1 which could have been resulted into death of complainant. It is further averred that complainant was discharged from Jindal Hospital Hisar and thereafter he was taken to Heart Centre, Civil Hospital, Jagadhari road, Ambala Cantt on 14.03.2020 where the complainant was operated and defective stent which was used by doctor of op no.1 was removed. That complainant sent a legal notice qua the negligence of doctor of op no.1 through his counsel on 01.01.2020 and claimed compensation of Rs.50 lacs from op no.1 and the op no.1 sent reply to the complainant. In the reply, it has been confessed on their part that during the procedure after crossing of wire, when the stent was tried to be deployed, the stent slipped into the Aorta and as a result of which complications occurred during the above said operation. It is further submitted that no discharge report was given to the complainant or to his relative as alleged by op no.1 in its reply and even when the complainant approached the op no.1 to take his medical record of treatment the op no.1 refused to hand over the treatment record. That due to negligence on the part of doctor of op no.1, the complainant could have lost his life and apart from that he has suffered financial loss and mental agony. Hence, this complaint.
3. On notice, op no.1 appeared through counsel and filed written statement taking certain preliminary objections that claim of complainant is highly exorbitant without any basis or justification and is fictitious, complaint is wholly misconceived, frivolous which is unsustainable in the eyes of law and has been filed without justified reason/ cause against the op just to harass, defame and extort illegal sum from it and that no specific, scientific and justification allegations in regard to negligence of deficiency in providing services have been made by complainant against the op no.1 and complainant has totally failed to explain as to how the op was negligent, hence the complaint is based on non specific, unscientific and laymen conjectures and is liable to be dismissed out-rightly. It is also submitted that complaint is not supported by any expert medical witness on behalf of complainant and no cause of action arose against the op as no negligence has been committed nor any deficiency in service has been made by op no.1 while providing the treatment to the complainant, hence this complaint is not maintainable in the present form and is liable to be dismissed and that op hospital provided the services to the patient diligently with due care and skill and there was no complication of the surgery performed on the patient and that complaint is bad for non joinder and mis joinder of parties as complainant has not impleaded Oriental Insurance Company Ltd. as op in this case.
4. On merits, it is submitted that patient Sh. Sardari Lal was brought to Poonia Hospital on 29.02.2020 in emergency with the complaint of retrosternal pain with uneasiness since morning of 29th February 2020 and worsening of symptoms for 1 to 2 hours. The patient had a history of known case of Coronary Artery Disease/ Old Inferior Wall Myocardial Infarction (STK+VE), well tolerated to medications. He took primary treatment from local practitioner and then came to the op for further evaluation and management. Patient was admitted with above mentioned complaints and on examination, his general condition was poor, conscious, BP : 110/70 mm of Hg, PR: 46/ min, chest: B/L A/E + P.A: soft, ECG S/o NSR with ST coving in inferolateral leads, CNS: NAD. It is further submitted that all necessary investigations were done and after stabilization patient was taken for CAG/ revascularization. During the procedure after crossing of wire, when the stent was tried to be deployed the stent slipped into the Aorta, hence in view of that stent (XIENCE V3.5 X 15 mm) partially hanging into the Aorta, it was decided in the best interest of the patient to shift him for CABG. During the stay in Poonia Hospital, patient was managed through ant platelets, anticoagulants with other supporting treatment diligently with reasonable care and skill as per accepted medical standards. The patient was referred in hemodynamically stable condition with medical therapy for CABG. All the above mentioned facts were informed to the patient and attendants and the same are documented in the treatment file of the patient. It is further submitted that on referral patient’s vitals were stable and patient was informed about the complication which was documented in the discharge report which is signed by patient while receiving it. The complication that occurred is also mentioned in the angioplasty report handed over to patient. It is further submitted that applying precedent from the judgment of Hon’ble Supreme Court in case titled as Jacob Mathew Versus State of Punjab (2005) 6 SCC1, the medical literature and medical record, it is clear that op was not negligent and provided the services to the patient diligently with reasonable care and skill. The doctors of the op hospital are well qualified and they diligently treated the patient with reasonable care and skill. The complication that occurred in the present case is a known complication as reported in the medical literature and does not mean negligence per se. The procedure was performed diligently and with reasonable skill and care, however, the complication occurred due to the risk factors as mentioned above. The complainant has not alleged any specific act of commission or omission that constituted negligence on the part of op. It is further submitted that about treatment of the patient at OP Jindal institute of Cancer & Cardiac Research, Hisar, no comments are possible for want of knowledge and no medical records of that Institute have been provided with the complaint. It is further submitted that Law does not require professionals to give guarantee or warranty with respect to the end results of the services rendered by them. What law requires is that the services rendered must not be sub standard or below par and the services rendered must be without any shortcomings. The end results are immaterial. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. On being impleaded and on notice, op no.2 also appeared and filed written statement submitting therein that op no.2 had issued error and omission medical policy no. 272200/48/2020/1710 for the period 10.06.2019 to 09.06.2020 on 07.06.2019 on claim mode basis and subject to the terms and conditions of medical establishment- professional negligence errors and omissions insurance policy. As per clause 5(b) of Policy Extended Claim Reporting Clause “In the event of non renewal or cancellation of this policy either by the company or by the insured, the company will allow a time limit not exceeding 90 days from the date of expiry or cancellation of the policy, provided no insurance is in force during this extended reporting period for the same interest, for notification of claims for accidents which has taken place during the period of insurance but could not be made during the policy period. In the case in hand, the op no.2 has received intimation on 02.02.2021 i.e. after the expiry of last renewed policy on 09.06.2020. As such liability of op no.2 does not arise in this case. Thus, in view of the above, op no.2 is not liable to indemnify the op no.1 or to compensate the complainant. The insurance under this policy is subject to conditions, clauses, warranties and endorsements. It is further submitted that op no.1 hospital is one of the best hospitals in Sirsa and is providing quality health services to the patients for the last so many years and present complaint is totally false, fictitious, fabricated and baseless filed on the basis of unfounded allegations as there was no negligence on the part of the treating doctor. It is further submitted that complaint has been filed by complainant with the ulterior motive of extorting huge amount of money from the ops by leveling false allegations of negligence, deficiency in service and unethical practice etc. while treating the patient, as is evident from the prayer clause. On merits, the contents of complaint are denied for want of knowledge. It is submitted that patient was admitted in Poonia Hospital on 29.02.2020 for treatment and legal notice was served in anticipation on 01.01.2020 by the complainant through his counsel claiming the compensation of Rs.50 lacs alongwith other reliefs and that this Commission has no jurisdiction to try and entertain the present complaint against answering op. In additional plea, it is submitted that answering op will indemnify the op no.2 only in accordance with the terms and conditions of the policy. With these averments, dismissal of complaint prayed for.
6. The complainant in evidence has tendered his affidavit Ex. CW1/A and documents Ex.C1 to C12.
7. On the other hand, op no.1 has tendered affidavit of Mr. Ajay Poonia, authorized signatory/ owner/ Director as Ex.RW1/A and documents Ex.R1/1 Ex.R1/7. Op no.2 has tendered affidavit of Ms. Puja Papwal, Incharge T.P. Hub as Ex.R1 and documents Ex.R2 and Ex.R3.
8. We have heard learned counsel for the parties and have gone through the case file.
9. From the Refer Summary placed on file by op no.1 as Ex.R1/1, it is evident that on 29.02.2020 the complainant was brought in the hospital of op no.1 in emergency with the complaints of retro sterna chest pain with uneasiness from the morning of 29.02.2020 itself with worsening of symptoms. Accordingly the complainant was taken for CAG/ revascularization. It is admitted by op no.1 in reply to legal notice, refer summary Ex.R1/1 as well as in its written version that during the procedure after crossing of wire, when the stent was tried to be deployed the stent slipped into the Aorta, hence in view of that stent (XIENCE V 3.5 X 15 mm) partially hanging into the Aorta, it was decided in the best interest of the patient to shift him from CABG i.e. Coronary artery bypass graft surgery. Thereafter, complainant was taken to O.P. Jindal Institute of Cancer & Cardiac Research Center, Hisar where he was advised for stent removal by intervention followed by CABG which shows the medical negligence on the part of doctor of op no.1 because the doctor of O.P. Jindal Institute of Cancer & Cardiac Research Center, Hisar had also advised the complainant for removal of stent. Further more, the medical negligence of doctor of op no.1 is also proved from the discharge summary of Heart Centre, Civil Hospital, Ambala Ex.C6 as he was shifted to that hospital and was admitted there on 14.03.2020 where successful PTCA stenting to RCA was done after removal of defective stent and he was discharged in haemodynamically stable condition. So, it is proved on record that there was medical negligence on the part of doctor of op no.1 hospital because he could not place the stent where he wanted to place it and said medical negligence of the doctor of op no.1 is apparent on record and even expert medical record of hospital of OP Jindal and Heart Centre, Civil Hospital, Ambala regarding medical negligence is already on file and such no other medical expert evidence was required in this case. Though, op no.1 has relied upon medical literature i.e. Bouncing Guide and a Lost Stent but the said literature itself says that stent embolization into the systemic or coronary circulation prior to development is a rare occurrence i.e. not common. The complainant due to the above said medical negligence of doctor of op no.1 had to go Hisar and Ambala and had to incur more expenses and his stenting at Heart Centre, Ambala was successful and so it cannot be said that there was no medical negligence on the part of doctor of op no.1 and that said complication is known complication as per medical literature rather it is commonly known that success rate of stenting is higher without any complication as occurred to the complainant in the hospital of op no.1 due to medical negligence of its doctor. The judgments of the Hon’ble Supreme Court in cases titled as Dr. Harish Kumar Khurana Versus Joginder Singh & Ors. CA No. 7380 of 2009 decided on 07.09.2021 and Dr. (Mrs.) Chanda Rani Akhouri & Ors. Versus Dr. M.A. Methusethupathi & Ors. CAA No. 6507 of 2009 decided on 20.04.2022 relied upon by learned counsel for op no.1 are not applicable to the present case. Although complainant has not asserted specifically that how much amount was incurred by him on his treatment in above said three hospitals but the fact cannot be ignored that he might have spent huge amount on his treatment. As such complainant is entitled to compensation of Rs. five lacs for unnecessary harassment including refund of treatment charges as he had to incur more expenses on his treatment and had to remain under mental trauma due to said medical negligence of doctor of op no.1 The complainant is entitled to said compensation of Rs.five lacs from the ops. It is proved on record from insurance policy document Ex.R2 that hospital of op no.1 was insured with op no.2 for the period 10.06.2019 to 09.06.2020 for the amount of Rs.50,00,000/- and as such ops no.1 and 2 are jointly and severally liable to pay the above said amount of Rs. five lacs to the complainant as op no.2 is also insurer of op no.1.
10. In view of our above discussion, we allow the present complaint and direct the opposite parties to pay an amount of Rs.5,00,000/- as compensation for medical negligence to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to receive the said amount of Rs.5,00,000/- from ops alongwith interest at the rate of @6% per annum from the date of this order till actual realization. We also direct the ops to further pay a sum of Rs.20,000/- as compensation for harassment and Rs.10,000/- as litigation expenses to the complainant within above said stipulated period. Both the ops are jointly and severally liable to comply with this order. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member President
Dt. 30.04.2024. District Consumer Disputes
Redressal Commission, Sirsa.
