Chandigarh

DF-I

CC/234/2023

ARUN MEHTA - Complainant(s)

Versus

POST GRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH - Opp.Party(s)

GAUTAM BHARDWAJ

04 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/234/2023
Date of Institution	:	04/05/2023
Date of Decision	:	04/09/2024

 

Arun Mehta son of Sh. Amrit Mehta r/o House No.5761, Street No.9, Raghubir Park, Badi Haibowal, Jassan Road, Ludhiana, Punjab.

… Complainant

V E R S U S

1. Post Graduate Institute of Medical Education and Research, Sector 12, Chandigarh through its Director.
2. Department of Dermatology, PGIMER, Chandigarh through its Head of Department.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Gautam Bhardwaj, Advocate for complainant
	:	Sh. Hitender Kansal, Advocate for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Arun Mehta, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations, as projected in the consumer complaint, that in the year 2021, complainant suffered from some skin problem on his face and accordingly approached OP-2 for treatment. OP-2 advised the complainant to go for TCA CROSS, upon which he did not show any willful concern, but, OP-2 time and again asked him to undergo TCA CROSS and copy of the OPD card is Annexure C-2.  The concerned department had also written the consent of complainant on the OPD card which was never signed by him.  Thereafter OP-2 had given some medicine i.e. tri caloro acetic acid to the complainant, which caused reaction and there were burns on his face.  The doctors of OPs again had given TCA CROSS treatment for the acne scars, but, again OP-2 had given wrong treatment to the complainant as his face was totally burnt. Thereafter complainant had made representation (Annexure C-3) to OP-1 stating about the grievances, but, till date, no response has been given, rather OP-2 had replied to the representation which is vague in nature.  Instead of redressing grievance of the complainant, OP-2 offered some other treatment to him.  In this manner, due to negligence of OPs, complainant is entitled for compensation. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action, jurisdiction and also that there is no negligence on their part.  However, it is admitted that the complainant consulted OP-2 through teleconsultation on 20.10.2021 with complaint of mucosal vitiliogo, post inflammatory hyperpigmentation (PIH) and Androgenetic Alopecia (AGA).  Later on, he was registered in the dermato-surgery clinic vide DSG No.5570 and the senior doctor and consultant in-charge of the clinic discussed the management with teams of doctors. Thereafter complainant was checked by the OPs on 25.10.2021 and he was advised suction blister grafting for mucosa, vitiligo and then PRP (platelet rich plasma) for androgenetic alopecia on 9.11.2021 and TCA CROSS (trichloroacetic acid chemical reconstruction of skin scar) treatment for acne scars on 6.12.2021. The complainant had given his consent for the TCA CROSS procedure for his acne scars, which was performed on 6.12.2021 and the consent was documented in his demarosurgery file bearing No.DSG 5570 (Ex.R-2). The consent file explicitly outlined the discussion held regarding the treatment method, their advantages and disadvantages, possible adverse effects and risks and he was informed about the risk of unsuccessful results and potential complication. After performing the said procedure of TCA CROSS, complainant was advised for regular follow up, but, he only came on 21.12.2021 and was advised alternative options, which he did not avail. Thereafter the complainant had filed a complaint with the Chairperson, Public Grievance Committee, PGIMER, Chandigarh in January 2022 and after receiving reply of OP-2, the said complaint was closed vide report dated 22.1.2022 (Ex.R-3).  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In replication, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant had taken treatment for acne scars on his face from the OPs where, after giving medicine to the complainant and on finding no recovery, TCA CROSS treatment was given to him on 6.12.2021, which resulted in some complication on the face of the complainant and he was advised for regular follow up, the case is reduced to a narrow compass as it is to be determined if there is medical negligence on the part of OPs and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the complainant has filed a false and frivolous complaint against the OPs  and there is no medical negligence and deficiency in service on the part of OPs and the consumer of the complainant is liable to be dismissed, as is the defence of the OPs.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the medical record/evidence, having been relied upon/led by the parties on record and the same is required to be scanned carefully in order to determine if there is any medical negligence on the part of OPs and the complainant is entitled to the reliefs prayed for in the consumer complaint.
   3. However, before scanning the evidence led by both the parties, it would be apposite to take note of the legal principle which would apply in the case of medical negligence and has been discussed by the Hon’ble Apex Court in various judgments.
   4. The Hon’ble Apex Court in Jacob Mathew v. State of Punjab and Another, III (2005) CPJ 9(SC), dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution, but, there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if:

(a)   either a person (doctor) did not possess the requisite skills which he professed to have possessed; or

(b)   he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. The Hon’ble Apex Court held as under:

“48. We sum up our conclusions as under:

(1)    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 three: “duty”, “breach” and “resulting damage”.

(2)    Negligence in the context of the 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 particular 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.

        xxx                   xxx                   xxx

(4)    The test for determining medical negligence as laid down in Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586] holds good in its applicability in India.

                xxx                   xxx                   xxx

(8)    Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

 

5. The term “negligence” has been defined in Halsbury Laws of England (Fourth Edition) para 34 and as settled in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, I (2010) CPJ 29 (SC) as under:-

            “45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:

                      22.   Negligence.—Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

 

6. In para 89 of the judgment in the case of Kusum Sharma (supra), the tests of medical negligence while deciding whether the medical professional is guilty of medical negligence, varied tested principles have to be kept in view, the Hon’ble Apex Court held as under:-

“89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the 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:

1. 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.
2. 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.
3. The medical professional is 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 particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. 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.
6. 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. 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.
7. 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.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. 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.”

 

7. In Dr. Harish Kumar Khurana v. Joginder Singh and Others, (2021) 10 SCC 291, the Hon’ble Apex Court has held that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances. However, in an unfortunate case death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence.
8. Recently, the Hon’ble Apex Court has discussed and relied upon the aforesaid judgments in the case related to medical negligence in Chanda Rani Akhouri [Dr. (Mrs.)] & Ors. Vs. M.A. Methusethupathi [Dr.] & Ors., II (2022) CPJ 51 (SC) and has held as under :-

27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

28. The term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in the follow-up care, at any point of time by the treating doctors or anyone else, it is always open to be considered by the Courts/Commission taking note of the exposition of law laid down by this Court of which a detailed reference has been made and each case has to be examined on its own merits in accordance with law.”

9. In the case in hand, complainant has come with the plea that there is medical negligence on the part of OPs as they had given TCA CROSS treatment of the acne scars on the face of the complainant, as a result of which his face was burnt and when he approached the OPs for the follow up, OPs had not given any treatment to him whereas the defence of the OPs is that, in fact, the TCA CROSS procedure was given only after explaining the possible risks, advantages and disadvantages of the same to the complainant and its success rate as well as on the voluntary consent given by the complainant and as the complainant has not even come for regular follow up despite of the fact that he was advised alternative options on 21.12.2021, the entire evidence led by the parties is required to be scanned in order to determine the real controversy between the parties.
10. As it is case of the complainant that there was medical negligence on the part of the OPs while performing the TCA CROSS procedure for acne scar treatment of his face, and also that the complainant had never consented to the OPs to give him TCA CROSS treatment, onus to prove these facts heavily lies upon the OPs. 
11. As per the case of the complainant, he had not given any consent to the OPs on the OPD card for providing TCA CROSS procedure to him as the alleged consent was never signed by him. No doubt, on the OPD card though the consent contents have been written, which does not bear the signature of the complainant, but, as per the defence of the OPs, the said consent was separately documented in the demarosurgery file bearing  No.DSG 5570 (Ex.R-2) and only after obtaining his consent the said procedure was performed.
12. Perusal of Ex.R-2 clearly indicates that the complainant was explained in his language and he understood the nature of operation/procedure (TCA CROSS) and had given his consent, which bears his signature, and relevant portion of the same is reproduced below for ready reference:-

  “Consent

I, Arun Mehta, ………………, hereby give my written informed consent and authorize the doctor of Department of Dermatology, PGIMER, Chandigarh to perform (operation/procedure) on me under Local anesthesia.  I have been explained in a language that I understand the nature of operation/procedure (TCA Cross), its expected benefits, possible side effects and after effects and the risks involved.  I have been informed about the alternative methods of treatment and their respective benefits, possible side effects and risks.  I have been informed about the risk of unsuccessful results and complications. For academic and scientific purposes the operation/ procedure may be televised or photographed.

Sd/-Arun Mehta.”

13. Thus, one thing is clear on record that the complainant has made false allegations in his consumer complaint that he had never given any consent for the procedure/operation which was done by the OPs and the said fact stands falsified from the written consent (Ex.R-2) which bears his signature.
14. So far as the case of the complainant that the OPs had not given the required treatment and there was medical negligence on their part is concerned, as the consent letter (Ex.R-2) proves that the OPs had explained to the complainant in his language about the nature of operation/ procedure (TCA CROSS), its expected benefits, possible side effects and after effects and the risks involved and about the alternative methods of treatment and their respective benefits, possible side effects and risks and also about the risk of unsuccessful results and complications, regarding which he himself had given consent, OPs cannot be held liable for any medical negligence for the simple reason that there were some side effects of the said treatment.
15. Not only this, when it has also come on record that the complainant was asked by the OPs for regular follow up and he only approached the OPs on 21.12.2021 and thereafter did not come for follow up treatment or for alternative treatment, as was explained to him in the written consent letter, it is safe to hold that had the complainant approached the OPs for follow up, he could have been treated by the OPs in a better way and it is unsafe to hold that the there is any medical negligence or deficiency in service  on the part of the OPs.

4. In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

04/09/2024	Sd/- [Pawanjit Singh] President
	Sd/-
	[Surjeet Kaur] Member
	Sd/-
	[Suresh Kumar Sardana] Member