STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Prabhjot Kaur, through her LRs: (1) Harminder Singh s/o Sh. Didar Singh (2) Harpreet Singh S/o Harminder Singh (Minor) through his father natural guardian appellant No.1 both R/o village Kathe, Teh. and Distt. Hoshiarpur, Punjab.

 ……appellant/complainant

V e r s u s

1.      Post Graduate Institute of Medical Education and Research through its Director, Sector -12, Chandigarh.

2.      Dr. Khandelwal, Department of Radio-Diagnosis & Imaging PGIMER, Chandigarh through its Director.

3.      Dr. Manoj (SR) Department of Radio-Diagnosis & Imaging PGIMER, Chandigarh through its Director. [Deleted vide order dated 17.11.2014].

              ....Respondents/Opposite Parties

Argued by:       Sh. S.S. Hira, Advocate for the appellant.

                        None for the 

1.      Post Graduate Institute of Medical Education and Research through its Director, Sector -12, Chandigarh.

2.      Dr. Khandelwal, Department of Radio-Diagnosis & Imaging PGIMER, Chandigarh through its Director.

……Appellants/Opposite Parties

V e r s u s

Prabhjot Kaur, through her LRs: (1) Harminder Singh s/o Sh. Didar Singh (2) Harpreet Singh S/o Harminder Singh (Minor) through his father natural guardian appellant No.1 both R/o village Kathe, Teh. and Distt. Hoshiarpur, Punjab.

….. Respondent/complainant

Argued by:       None for the appellants.

                        Sh. S.S. Hira, Advocate for the respondent.

Appeals under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER (RETD.),                                                PRESIDENT.MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

PER PADMA PANDEY, MEMBER

            This order shall dispose of the aforesaid two First Appeal Nos.151 of 2015, titled as Prabhjot Kaur Vs. Post Graduate Institute of Medical Education and Research and Ors. and 170 of 2015 titled as Post Graduate Institute of Medical Education and Research and anr. Vs. Prabhjot Kaur, arising out of order dated 4.06.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it partly allowed complaint, filed by the complainant (now appellant in First Appeal No.151 of 2015 ), and directed Opposite Parties No.1 to 2 (now respondents No. 1&2 in First Appeal No.151 of 2015), as under:-

“For the reasons recorded above, the complainant has established deficiency in service on the part of OPs 1 & 2 in not obtaining her consent for injecting MRI contrast on 8.5.2013.  However, the complainant has failed to establish any medical negligence in respect of the treatment given by the OPs 1 & 2 to her for the period from 8.5.2013 to 20.5.2013.  Accordingly, the complaint is partly allowed.  OPs 1 & 2 are jointly and severally directed as under :-

i)        To make payment of a compensation of an amount of Rs.40,000/- to the complainant on account of deficiency in service and causing mental agony and harassment to her. 

ii)       To pay Rs.11,000/- to the complainant as litigation expenses.

This order be complied with by OPs 1 & 2 within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amount mentioned at Sr.No.(i) above, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(ii) above.”

2.           The facts in brief are that the complainant was suffering from one small wound at the right side leg above the ankle for which she got treatment at Tagore Hospital, Jalandhar in the year 2003; DMC Hospital Ludhiana in the year 2003; Dr. Jaspal Singh, Sr. Consultant & Laparoscopic Surgeon, Associate Professor, Department of Surgery, DMC Hospital, Ludhiana in the year 2005 and Miglani Hospital Adampur Doaba, Jalandhar in September 2012 who suggested her to get treatment from PGI Chandigarh. Accordingly, on 27.9.2012, the complainant approached PGI, Chandigarh OPD for treatment where the doctor, after check-up, referred for various tests and received blood report, Haematology requisition, coagulation requisition etc. for a number of times and again examined her on 3.10.2012, 5.10.2012, 6.10.2012, 9.10.2012, 12.10.2012 and 31.10.2012. It was stated that the doctors of the PGI decided to conduct MRI on 8.5.2013 for diagnosing the ailment and before that the doctor asked her husband to purchase the prescribed injection No.1048. It was further stated that the said injection was injected on the complainant’s left hand carelessly/negligently after which her left hand had swollen and became blackish and she suffered severe pain and the doctors on duty admitted her on 5.8.2013 (8.5.2013?).  It was further stated that the complainant remained under treatment and was discharged on 20.5.2013. But, after two months, the skin of the left hand of the complainant detached, her finger nail became blackish and her finger fell down. It has been contended that the complainant suffered permanent disability of left hand due to negligent administration of above mentioned injection. It was further stated that the aforesaid acts of Opposite Parties, amounted to deficiency in rendering service and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed.
3.           In their joint reply, Opposite Parties No.1&2 have admitted that the complainant approached them for treatment on 27.9.2012. It was denied that the injection was injected negligently on the complainant.  It was further stated that the injection was injected to the patient for doing contrast MRI and as mentioned in patient’s discharge summary, the contrast extravasated while injecting.  Extravasation (meaning contrast going into soft tissue and not in vein) is a known complication and has been well documented in medical literature world-wide.  It was further stated that though all care is taken to prevent this from happening, still it may, however, occur in a small number of patients. It was further stated that at the time of discharge the patient was advised multiple medications and was asked to come again for follow up in three different OPD-clinics for her underlying clinical problems and for contrast related complications. It was further stated that the patient had multiple underlying problems and was being investigated and treated for the same and the complications of skin detachment/fingers falling could be due to one of those conditions. It was further stated that the complainant was presented to the department of Plastic Surgery OPD with established gangrene of ring and middle finger of left hand with wound over hand.  The complainant was treated with operation which included amputation of gangrenous fingers and split skin grafting for wound.  It was further stated that the complainant had healed her wound when she last visited PGI and she was also issued a disability certificate as per PGIMER protocol. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1&2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4.           In the rejoinder, filed by the complainant, he reasserted all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties No.1&2.
5.           The name of Opposite Party No.3 was deleted from the array of Opposite Party by the District Forum vide order dated 17.11.2014.
6.           The complainant and Opposite Parties No.1 to 2, led evidence, in support of  their case.
7.           After hearing the Counsel for the complainant, Opposite Parties No.1&2, and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint of the complainant, in the manner, referred to, in the opening para of the instant order. 
8.       Feeling aggrieved, First Appeal No.151 of 2015, titled as Prabhjot Kaur Vs. Post Graduate Institute of Medical Education and Research and Ors. was filed by the appellant/complainant, for enhancement of compensation, whereas, on the other hand, First Appeal No.170 of 2015 titled as Post Graduate Institute of Medical Education and Research and anr. Vs. Prabhjot Kaur was filed by the appellants/Opposite Parties No.1&2, for setting aside the order of the District Forum being invalid and illegal.
9.           We have heard the Counsel for the  parties and, have gone through the evidence, and record of the case, carefully. 
10.           Alongwith First Appeal No. 170 of 2015 titled as Post Graduate Institute of Medical Education and Research and anr. Vs. Prabhjot Kaur the appellants/Opposite Parties filed consent form obtained from the husband of Prabhjot Kaur (now deceased) and respondent in the said appeal, on the ground that the same is essential for the just decision of the appeal as the District Forum wrongly, partly allowed the complaint on the ground that no consent was taken from the respondent/complainant though no such plea was raised by the complainant in the complaint.  The said consent being essential for the adjudication of the controversy in hand, this Commission vide order dated 14.8.2015, ordered to admit the same into evidence as Annexre ‘X’  by affording an opportunity to the legal heir of the respondent/complainant (now deceased) to file rebuttal evidence to the same. Accordingly the legal heirs of the respondent/complainant filed rebuttal evidence stating therein that the said consent form has no relevance in adjudicating the dispute involved in the case as the same was obtained from the husband of the complainant, which was not valid as per settled principle of law.
11.              The Counsel for the appellant, in First Appeal No.151of 2015, submitted that though the District Forum held that the respondents/Opposite Parties  did not obtain consent of the complainant Prabhjot Kaur (now deceased) and in the absence of any consent from her, doing the procedure of injecting MRI contrast injection, on her body was an unauthorized invasion and interference with her body, which amounted to a tortuous assault and battery and therefore, there was deficiency in service on the part of the respondents/Opposite No. 1&2, yet it failed to grant compensation to the complainant as per claim made by her in the complaint. He further submitted that the order of the District Forum be modified and appropriate compensation be granted to the legal heirs of the appellant.
12.           On the other hand, the Counsel for the respondents/Opposite Parties No.1&2 submitted that the order passed by the District Forum is illegal and invalid as it allowed the complaint on the ground that the respondents/Opposite Parties No.1&2  were deficient in rendering service by not obtaining consent of the complainant before injecting MRI Contrast injection, though no such plea to this effect was taken by the complainant in the complaint. It was further submitted that had this plea been raised by the appellant/complainant in the complaint, the same would have rebutted by respondents/Opposite Parties No.1&2 by producing on record consent form, which has now been produced on record.  He further submitted that as such the order of the District Forum being invalid and illegal is liable to be set aside. .   
13.  The main grouse of the appellant/complainant in the complaint was that the complainant suffered permanent disability of left hand due to negligent administration of MRI Contrast injection by the respondents/Opposite Parties No.1&2 and there was medical negligence on their part. On the other hand the plea of the respondents/Opposite Parties No.1& 2 was that MRI contrast is injected in patients for doing contrast MRI and around 10 ml of contrast is used on a given patient. Extravasations is a known complication and has been well documented in medical literature world-wide. It was further pleaded that all care is taken to prevent this, but still it may occur in small number of patients and in the instant case, contrast extravasations occurred and the complainant was admitted for the management of the same and she was given full medical care and surgical consultation to manage the problem which occurred secondary to contrast extravasations. The patient was discharged in hemodynamically stable status and was advised multiple medications and follow up but the patient did not turn up nor it was clear whether she was taking medication as advised by PGI and she neither submitted documents to this effect.  Even the complainant did not produce on record any literature or medical evidence to prove that contrast extravasation is not a known complication when MRI/CT is done.  It is also evident from the record that the patient started his treatment from PGI on 27.9.2012 and it was found that she was suffering from multiple diseases as mentioned in para No. 12 of the impugned order and it could be assumed that the complication may have occurred due to the disease she was already suffering. Admittedly the complainant earlier was taking treatment of her wound on the right side leg since 2003 from Tagore Hospital Jalandhar, DMC, Ludhiana and Miglani Hospital Adampur Doaba, Jalandhar etc. and when she approached PGI in 2012 for treatment of disease from which she was already suffering, various tests were conducted on her and when on 8.5.2013, MRI was conducted to evaluate BCS (Budd Chiari Syndrome) and impression of BCS was found as per the MRI report. As mentioned above unfortunately when a contrast injection was given to the complainant, the same extravasated and it is evident from the discharge card Annexure C-3 and affidavit of Dr. N.K. Khandewal that complication of contrast extravasation was taken seriously and the patient was treated for the same properly. It is evident from discharge card Annexure C-3 as discussed above that after treatment the patient was discharged in hemodynamically stable status and it was recorded that she was able to move all the fingers, pain and edema was reduced and skin had become reddish blue. As such it is proved that the matter of extravasation was seriously taken and the condition of the patient at the time of discharge was normal. On the contrary the complainant failed to prove that there was negligence on the part of the Opposite Parties in treating the extravasation and even she did not produce OPD record to prove that she visited the PGI for follow up as advised in the discharge card and even she did not produce cogent evidence to prove that she took medicine as per prescription of the Opposite Parties. It is not out of place to mention here that the complainant produced all the OPD record prior to 20.5.2013 when she was discharged and was advised follow up but she miserably failed to produce OPD record thereafter. Thus in absence of any OPD record that the complainant continued her treatment after 20.5.2013 with the PGI as was advised, it cannot be said that complainant suffered disability due to medical negligence on the part of Opposite Parties No.1&2. Thus, the District Forum rightly held that the complainant failed to prove medical negligence on the part of Opposite Parties No.1&2. .
14.        However, the foremost question, which requires to be determined is whether prior to injecting MRI contrast,  a legal and valid consent was obtained from the complainant or not?  To adjudicate upon this issue, we place reliance on the judgment Samira Kohli Vs. Dr. Prabha Manchanda & anr. Decided on 16.1.2008,  by the Hon’ble Supreme Court of India, wherein it was  in clear cut terms held that a doctor has to seek and secure the consent of the patient before commencing a treatment (the term treatment includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure so, that he/she knows what is consenting to. The plea of the respondents/Opposite Parties is that though such a plea was not taken by the complainant in her complaint, yet the District Forum wrongly adjudicated upon the issue and came to the conclusion that there was deficiency on the part of the Opposite Parties  No. 1&2. We do not agree with this contention of the respondents/Opposite Parties No.1&2(appellants in First Appeal No. 170). It is the primary obligation of the Consumer Fora while deciding a consumer  complaint to see the legality or illegality of every aspect  in accordance with settled principle of law, irrespective of the fact whether any plea to this effect was taken or not by the parties. Hence this plea of the respondents/Opposite Parties No.1&2  stands rejected. Even otherwise the respondents who are appellants in First Appeal No. 170 of 2015 were allowed to produce on record consent form produced by them alongwith their appeal.  As per the respondents/Opposite Parties No.1&2, proper consent of the husband of the complainant was taken prior to injecting MRI contrast and the same is evident from consent form produced on record.  We do not feel that any help can be drawn by the respondents/Opposite Parties No.1&2 ( appellants In First Appeal No. 170) from this document to prove their case that legal consent was obtained. In Samira Kohli Vs. Dr. Prabha Manchanda & anr.(supra),  it was clearly held by the Hon’ble Apex Court that when a patient is a competent adult, there is no question of someone else giving consent on his/her behalf. In the instant case the complainant was neither minor or mentally challenged nor under anesthesia at the time of injecting MRI contrast, hence, consent of her husband could not be considered valid. As such the consent form produced by the respondents/Opposite Parties No.1&2 (appellants in First Appeal No.170) is of no help to them. Therefore, it is proved that Opposite Parties No.1&2 injected MRI contrast on the body of the complainant illegally without her due consent, which was unauthorized invasion and interference with the body of complainant amounting to tortuous assault and battery and as such this act of Opposite Parties No.1&2 amounted to deficiency in rendering service. Thus the finding given by the District Forum in this regard is correct and on the basis of facts and provision of law and the same deserves to be upheld.
15. As far as enhancement of compensation sought by the appellant/complainant is concerned, it is held that since the complainant miserably failed to establish any medical negligence in respect of the treatment given to her by the PGIMER, the relief granted by the District Forum for deficiency in rendering service against Opposite Parties, No.1&2 is just adequate and there is no valid reason or justification for enhancement.
16.           In view of the above, we are of the considered opinion that both the aforesaid appeals filed by the complainant and Opposite Parties No.1&2 respectively are liable to be dismissed being devoid of merit and the District Forum order deserves to be upheld.  
17.           For the reasons recorded above, both the aforesaid appeals filed by the complainant and Opposite Parties No.1&2 respectively are dismissed, with no order as to costs. The order of the District Forum is upheld.
18.           Certified copy of this order, be placed in the file of First Appeal No.170 of 2015 titled as Post Graduate Institute of Medical Education and Research and anr. Vs. Prabhjot Kaur,.

19.         Certified copies of this order, be sent to the parties, free of charge.

20.         The file be consigned to Record Room, after completion

Pronounced.