Punjab

StateCommission

FA/1366/2013

Dr. Jatinder Kumar - Complainant(s)

Versus

Rattan Lal - Opp.Party(s)

Ashwani Talwar

27 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

First Appeal No. 1366 of 2013

                                                        

                                   Date of institution: 12.12.2013    

                             Date of Decision:    27.2.2015

 

Dr. Jatinder Kumar, MO, T.B. Hospital, Phagwara Road, Hoshiarpur, now working as MO, CHC, Mahilpur, Hoshiarpur.

…..Appellant/OP No. 3

                                      Versus

1. Rattan Lal S/o Lashman Dass, resident of H. No. 422/25, Gokal Nagar, Hoshiarpur.
2. Sunita W/o Rattan Lal, resident of H. No. 422/25, Gokal Nagar, Hoshiarpur.

….Respondents No.1&2/Complainants

3. Punjab Health System Corporation C/o Institute of Health & Family Welfare Complex, Near Civil Hospital, Phase VI, SAS Nagar, Mohali, through its Chairman.
4. Civil Hospital, Jalandhar Road, Hoshiarpur, through Civil Surgeon Hoshiarpur. 
5. Dr. Seema Garg, MO (Medical Officer), Civil Hospital, Hoshiarpur.

…..Respondents No. 3 to 5/OP Nos. 1, 2 & 4

 

First Appeal against the order dated 30.10.2013 passed by the District Consumer Disputes Redressal Forum, Hoshiarpur.

 

Quorum:-

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

Present:-

          For the appellant             :         Sh. Rahul Sharma, Advocate for

                                                          Sh. Ashwani Talwar, Advocate

          For respondent Nos. 1&2:          Sh. Munish Goel, Advocate

          For respondent Nos. 3&4:          Ms. Jasleen Kaur, Advocate

          For respondent No.5        :         Sh. Atul Nehra, Advocate

 

2^nd Appeal

 

First Appeal No. 1371 of 2013                                            

                                   Date of institution: 12.12.2013    

 

Dr. Seema Garg, Medical Officer, Clinical Laboratory, Civil Hospital, Hoshiarpur.

…..Appellant/OP No. 4

                                      Versus

1. Rattan Lal S/o Lashman Dass, resident of H. No. 422/25, Gokal Nagar, Hoshiarpur.
2. Sunita W/o Rattan Lal, resident of H. No. 422/25, Gokal Nagar, Hoshiarpur.

….Respondents No.1&2/Complainants

3. Punjab Health System Corporation C/o Institute of Health & Family Welfare Complex, Near Civil Hospital, Phase VI, SAS Nagar, Mohali, through its Chairman.
4. Civil Hospital, Jalandhar Road, Hoshiarpur, through Civil Surgeon Hoshiarpur. 
5. Dr. Jatinder Kumar, SMO, T.B. Hospital, Phagwara Road, Hoshiarpur.

…..Respondents No. 3 to 5/OP Nos. 1, 2 & 3

 

First Appeal against the order dated 30.10.2013 passed by the District Consumer Disputes Redressal Forum, Hoshiarpur.

 

Quorum:-

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant             :         Sh. Atul Nehra, Advocate

          For respondent Nos. 1&2:          Sh. Munish Goel, Advocate

          For respondent Nos. 3&4:          Ms. Jasleen Kaur, Advocate

          For respondent No.5        :         Sh. Rahul Sharma, Advocate for

                                                          Sh. Ashwani Talwar, Advocate

 

3^rd Appeal

First Appeal No. 1400 of 2013

                                                         

                                   Date of institution: 18.12.2013    

 

1. Punjab Health System Corporation C/o Institute of Health & Family Welfare Complex, Near Civil Hospital, Phase VI, SAS Nagar, Mohali, through its Managing Director.
2. Civil Hospital, Jalandhar Road, Hoshiarpur, through Civil Surgeon, Hoshiarpur. 

…..Appellant/OP Nos. 1&2

                                      Versus

1. Rattan Lal S/o Lashman Dass, resident of H. No. 422/25, Gokal Nagar, Hoshiarpur.
2. Sunita W/o Rattan Lal, resident of H. No. 422/25, Gokal Nagar, Hoshiarpur.

….Respondents No.1&2/Complainants

3. Dr. Jatinder Kumar, MO, T.B. Hospital, Phagwara Road, Hoshiarpur, now working as MO, CHC Mahilpur, Hoshiarpur.

…..Respondents No. 3 / OP No. 3

4. Dr. Seema Garg, MO (Medical Officer), Civil Hospital, Hoshiarpur

Performa Respondents.

 

 

First Appeal against the order dated 30.10.2013 passed by the District Consumer Disputes Redressal Forum, Hoshiarpur.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

          For the appellant             :         Ms. Jasleen Kaur, Advocate

          For respondent Nos. 1&2:          Sh. Munish Goel, Advocate

          For respondent No.3        :         Sh. Rahul Sharma, Advocate for

                                                          Sh. Ashwani Talwar, Advocate

          For respondent No.4        :         Sh. Atul Nehra, Advocate

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

                   These appeals have been filed against the impugned order dated 30.10.2013 passed in Consumer Complaint No. 248 dated 19.12.2012 by the District Consumer Disputes Redressal Forum, Hoshiarpur(in short the “District Forum”) vide which the complaint filed by the complainants was partly accepted with a direction to the opposite parties to pay a sum of Rs. 9,22,400/- to the complainant jointly and severally within a period of 30 days from the date of receipt of this order, failing which the OP shall be liable to pay interest @ 9% p.a. on the said amount from the date of filing of this complaint i.e. 19.12.2012 till realization.

2.                The complaint was filed by the complainants as parents of deceased Gagandeep Singh. It was alleged in the complaint that Gagandeep Singh their son fell ill and was got admitted in Civil Hospital, Hoshiarpur on 10.12.2010. OP No. 2 was working under OP No. 1 and it is a Government Hospital and the patient was attended by OP No. 3 in Emergency Ward. Requisite charges were deposited for admission and it was alleged that there was relationship of consumer and service provider between the parties. At the time of admission, Gagandeep was suffering Headache, fever, pain and Jaundice symptoms. OP No. 3 suggested number of tests referred in the Bed Head Ticket, which were to be conducted by Pathology Department of the Hospital and OP No. 4 was on duty and incharge of the Pathology Department. The Blood Samples of the patient were taken and tests were conducted on the same day and he was shifted to Dengu ward. Op No. 3 had again visited the patient in the evening and prescribed one unit of blood and assured for recovery. In the next morning again the Doctor came and told the complainant that there was no improvement in the condition of his son and the Doctor again prescribed for a unit of blood, which was arranged. However, it was transfused after a long delay as the Doctor on duty did not sign the formalities. On 11.12.2010, Dr. Daljit Singh Khella visited and checked the patient and told the complainant that the condition of their son was very serious and he be shifted to some better hospital and accordingly, son of the complainant was referred to PGI at 10.15 p.m. but no Ambulance was arranged despite repeated request. They arranged the Ambulance at their own and shifted the patient to DMC & H, Ludhiana where complete blood tests, X-ray and scan was conducted upon the patient and was put on Oxygen. After tests Doctor detected Malaria with P-Falciparum in the blood within a few minutes. However, due to undiagnosed and negligent treatment at Civil Hospital, Hoshiarpur, Jaundice and Pheumonia further aggravated the Malaria, which was never checked by OP Nos. 3 & 4 and had damaged the vital organs of the body of the patient due to which he died on 19.12.2010 at DMC, Ludhiana. Despite the fact that the patient complained for fever, to OP No. 3 but no routine fever was checked and no tests for jaundice was prescribed. MP Slides tests were also not conducted by OP No. 4, even OP No. 3 after going through the summary of the tests, did not emphasized for the same. Therefore, Ops were negligent in treating the son of the complainant, as a result of that the patient died in DMC & H, Ludhiana, therefore, they were deficient in their services. The complaint was filed before Punjab Human Rights Commission, Chandigarh. Inquiry was marked by the Commission, but a bias and baseless inquiry was conducted. It was further alleged that the deceased Gagandeep was only son of the complainant and was a competent Technocrat. He had good earnings and was supporting his parents as well as his Sisters, who were still studying. Due to his death, the family was completed shattered and accordingly, the complaint was filed to direct the Ops to pay damages to the tune of Rs. 10 lacs.

3.                OP No. 1 was ex-parte whereas OP Nos. 2, 3 & 4 filed their respective replies. OP No. 2 in its reply admitted that patient Gagandeep was admitted in the Emergency Ward of Civil Hospital, Hoshiarpur on 10.12.2010 at 2.12 p.m. with the complaint of headache 14 days, fever 9 days, altered sensorium 4 days, black colour stools 2 days. He was examined by Dr. Jatinder Kumar, Medical Specialist (Ops) and prescribed the investigations, CBC (complete blood count), MP Slide, Widal test, RBS, Blood Urea, S. Creatinine, S. Electrolytes (Na, K, Ca) and X-ray Chest PA view. However, complaint of Jaundice was not mentioned in the bed head ticket after taking the blood sample, which was sent to the laboratory. One unit blood was advised by Dr. Jatinder Kumar. The delay, if any, was due to rush in Medical emergency. On 11.2.2010, Dr. Daljit Singh Khella in the evening round of the emergency ward, examined the patient and reports in his Bed Head Ticket and found that the patient was serious and referred the patient to PGI, Chandigarh/ DMC & H, Ludhiana. It was further submitted that Malaria test was prescribed by Dr. Jatinder Kumar and requisite slip for the tests was handed over to the attendants of the patient. However, no Jaundice test was prescribed. As per inquiry conducted by Dr. Bhupinder Singh, Sr. Medical Officer, Civil Hospital, Hoshiarpur, the death of Gagandeep Singh was not due to negligence of Dr. Jatinder Kumar in treating the patient.

4.                OP No. 3 in its written reply took the preliminary objections that the complaint was not maintainable, the complainants were stopped by their act and conduct, admissions and acquisances to file this complaint; the complaint was bad for mis-joinder and non-joinder of necessary parties. DMC & H, Ludhiana where the deceased took the treatment and died was not made a party; Ops had served the patient during the discharge of their official duties, therefore, no liability can be fastened upon them. Moreover, they acted under the employment of the State of Punjab and State of Punjab is vicariously liable for the alleged acts and that the complaint was not within limitation. On merits, it was submitted that Gagandeep, aged 23 years son of Rattan Lal was admitted in Civil Hospital, Hoshiarpur on 10.12.2010 at 2.20 p.m. vide C.R. No. 110/13026 with history of loose motions, fever, headache vertigo and blurring of vision and he remained admitted in that hospital only for two days. After admission, he was immediately examined by this OP. His vitals were stable and cardic vascular and respiratory system was found to be within a normal limits and following tests were advised:-

CBC (Complete Blood Count), MP Slide, Widal test, RBS, Blood Urea, S. Creatinine, S. Electrolytes (Na+, K+, Ca++) and X-ray Chest PA view. He was found to put on standard line of treatment with I/V Fluids, Antibiotics, Antacid and Anti Pyretic.

After viewing the investigation reports, the patient was found to have Thrombocytopenia. His platelet count was 12000/Cmm and patient was shifted to Special Ward and was advised PRP (Platelets Rich Plasma) or fresh blood transfusion urgently. It was denied that the patient had complaint of Jaundice. There were no symptoms of Jaundice during the general physical examination. The patient was again checked by OP No. 3 in the evening and was advised PRP and attendants of the patient were directed to bring 4 donors for PRP so that the platelets can be separated from the blood of 4 donors but the attendants could arrange only 1 donor, which was transfused upon the patient. There was no question of giving any assured recovery of patient and on examination his general condition was better and at the time his platelet counts was 19000/Cmm. It was denied that there was delay in transfusing the blood to the patient. This OP treated the patient from 10.12.2010 at 2.20 p.m. till 12.00 noon, during which the condition of the patient was stable and after that this OP was on leave and then patient was examined by Dr. Daljit Singh Khella in the evening. After that, he was shifted to DMC College & Hospital and death history noted by this hospital shows that the patient was suffering from headache from 15 days, fever from 10 days and altered sensorium for 5 days and black coloured stool for two days, which was inconsistent with the history. As per the history given by the patient and his attendants in Civil Hospital, Hoshiarpur, there was no history of Jaundice and death summary of DMC College & H. That hospital was also a necessary party. It was a tertiary care hospital and they could not save the patient and patient died after a gap of one week of its admission. OP No. 3 is qualified Specialist in medicines from Rajindra Medical College and Hospital, Patiala and had 19 years of experience as a skilled Doctor. He prescribed the treatment as per standard medical practices and no negligence can be attributed to this OP. No case of medical negligence on the part of this Op. The matter was also adjudicated by Punjab Human Right Commission, Chandigarh and necessary inquiry was got conducted through Dr. Bhupinder Singh in which the statements of Dr. J.P.S. Bains E.M.O, Dr. Bhupinderjit Singh E.M.O., Dr. Jaswinder Singh E.M.O., Dr. Des Raj E.M.O.,, Dr. R.P. Saroya E.M.O., Dr. Daljit Singh Khela M.D. (Medicine), Smt. Balbir Kaur, Staff Nurse Emergency, Smt. Surinder Kaur, Staff Nurse Emergency, Smt. Ramneek, Staff Nurse Emergency, Miss. Tulika Sharma, Staff Nurse Emergency, Smt. Sukhjit Kaur, Staff Nurse Emergency, Sh. Sukhjinder Singh, Medical Lab Technician, Sandeep Singh M.L.T. (Blood Bank), Sukhdev Lal, M.L.T. (Blood Bank), Sh. Amarjit Lal, Incharge (Blood Bank) M.D. Oathology, Dr. Seema Garg, M.D. Bio-Chemistry and Shri Harjit Singh, Driver were recorded and he submitted a detailed inquiry report to the Punjab Human Right Commission through Dr. Bhupinder Singh and as per inquiry report, it was found that the patient and its attendants did not give the accurate history of the patient and no record was produced by them about problems detailed by the patient for the admission. It was further revealed that the patient had visited abroad in the past one month prior to the hospitalization and exact Etiology (Cause) of the signs and symptoms of the patient could not be found even in the DMC Hospital & College and patient died after 8 days. It was concluded in the inquiry report that the patient Gagandeep was attended and was given standard treatment and no negligence on the part of the treating Doctor. Therefore, there was no deficiency in services on the part of this OP. Complaint was without merit and it be dismissed.

5.                OP No. 4 in its written reply have taken the preliminary objections that complaint against her was not maintainable; complainants were stopped by their act and conduct, admission and acquisances to bring this complaint, complaint was bad for non-joinder of DMC & Hospital, Ludhiana as a necessary party, respondent had done all the acts in the discharge of their official duty and employment under the Punjab Health System Corporation and State of Punjab is also vicariously liable and that the complaint filed was beyond the limitation. On merits, as per the history record, patient Gagandeep was admitted in Civil Hospital, Hoshiarpur on 10.12.2010 at 2.20 p.m. and the attending Doctor had recommended certain tests and that this OP was Incharge of Pathology Department of the Hospital. The patient’s blood sample was collected after 3.00 p.m. and tests were prescribed, HB, CBC, Blood, Glucose, Blood Ures, Serum Creatime, Widal Test, Dengue Serology, Blood Grouping. Lab tests were done by MLT in the evening after 3.00 p.m. and MP Slide was to be made by MLT on duty in Malaria Lab as 10.12.2010 was a working and Malaria Lab was open upto 5.00 p.m. and MP Slide should have been made available by the complainant before that. In case their Lab would have received specific request for the same test on 11.12.2010, it could have been made by their MLT as next days were Saturday and Sunday and Malaria Lab was to remain closed on Saturday and Sunday. Malaria Lab is not connected in any manner with Clinical Lab. OP No. 4 is qualified Specialist Doctor (Bio-Chemistry) from Government Medical College, Patiala and has got 15 years experience in service and is a skilled Doctor. No negligence can be attributed to OP No. 4 in any manner; the complaint filed against this OP was totally false, baseless and mis-conceived. The patient or their attendants did not allege any complaint against this Op during the stay of the patient in Civil Hospital, Hoshiarpur. It was further stated that its inquiry was conducted by Bhupinder Singh, Sr. Medical Officer and MS Surgery and gave his report in which no negligence was attributed on the part of the treating Doctors. Therefore, the complaint was without merit and it be dismissed.

6.                The parties were allowed by the learned District Forum to lead their evidence.

7.                In support of his allegations, the complainants had tendered into evidence affidavit of Rattan lal Ex. C-1, certificate of Gagandeep Ex. C-2, payment receipts Exs. C-3 to 7, Bed Head Ticket Ex. C-8, test reports Ex. C-9, Malaria test report Ex. C-10, death summary Ex. C-11, attendance register copy Ex. C-12, death certificate Ex. C-13, supplementary affidavit of Rattan Lal Ex. C-14, DMC & H medical record and receipt of amounts Exs. C-15 to 32, Certificates Exs. C-33 & 34. On the other hand, opposite parties had tendered into evidence Internet literature Ex. R-1, sanction of posts Ex. R-2, notification of Punjab Govt. Ex. R-3, Malaria cases detail and literature Ex. R-4, complaint Ex. R-5, inquiry documents Exs. R-6 to 26, certificates Exs. R-3/4-27 to 29, letter Exs. R-4/30 & 31, attendance register copy Ex. R-4/32, affidavit of Dr. Jitender Kumar, MO Ex. R-3/A, affidavit of Dr. Seema Garg, Ex. R-4/A, policy on Malaria Mark-X, complete Haemogram Mark-Y.

8.                After going through the allegations in the complaint, various replies filed by the OPs, evidence and documents brought on the record, the learned District Forum allowed the complaint as stated above.

9.                We have heard the counsel for the parties.

FIRST APPEAL NO. 1366 OF 2013

10.              The appellant/OP No. 3 has filed this appeal against the impugned order alleging that the patient deceased Gagandeep was admitted in Civil Hospital, Hoshiarpur on 10.12.2010 with the history of loose motions, fever, headache vertigo and blurring of vision. Medical tests were prescribed and on receiving the report from the Laboratory, it was found to be a case of Thrombocytopenia with blood platelets counts decreased for which blood was also given but the patient did not respond to the treatment, therefore, Dr. Daljit Singh Khella had referred the patient to the PGI/DMC & H, Ludhiana and the patient was taken to DMC & H, Ludhiana. The patient was treated by this appellant from 2.20 p.m. on 10.12.2010 till 12.00 noon on 11.12.2010 and after that he had proceeded on leave and during that period what was required according to the medical standard, the treatment  was given and lateron the patient was shifted to DMC & H, Ludhiana and he died after about a week. Therefore, for the cause of death, the findings recorded by the District Forum are incorrect. There is no expert report to justify the same. MP Slide was prescribed by this appellant and in case the attendants of the patient were unable to get the report, the appellant cannot be held liable for that. Inquiry was conducted by Dr. Bhupinder Singh, SMO, Hoshiarpur. He in his inquiry examined various doctors, nurses and other persons and he did not give any adverse findings against this appellant. Even in the DMC Ludhiana, there was no MP Slide test, which is a gold standard test to say whether Malaria was positive. There can be number of other reasons for affecting the vital organs of the body of the patient, which cause the death. Therefore, the learned District Forum has wrongly held that the death of the patient was due to medical negligence of the appellant and others for not giving the proper treatment at an appropriate time.

11.              However, in case we go through the facts of the complaint, it has been alleged that the complainant was admitted with the OP hospital on 10.12.2012 with the history of severe headache, severe pain and Jaundice symptoms. He was attended by this appellant, who was medical specialists in the hospital and he prescribed various tests including the MP Slides. Other tests were done in the hospital Pathlogy Lab but the Malaria test was not taken. The admission record of OP No. 1 is Ex. C-8, which showed the complaint of Jaundice also alongwith fever and MP Slide alongwith other tests were prescribed and at the bottom of page No. 3 Jaundice to be ++ and diagnose view of ‘yellow’ eyes have been referred which gave an indication of Jaundice also but no treatment with regard to the Jaundice was given. Ultimately, when on 11.12.2010 the patient was referred to PGI and was taken to DMC & Hospital, Ludhiana, a Malaria Antigen test was got conducted and it was found positive (P.Falciparum) and in case we go through the statement of Rajesh Mahajan, Professor of Medicine, DMC & Hospital, Ludhiana, he has stated that after test, it was evaluated that the patient was having deranged LFT RFT Thrombocytopenia with bilateral infiltrates in chest X-ray. His Malaria test was positive. He was having complicated Malaria that had caused death, therefore, the Malaria was the major factor in causing the death of the patient, who was not treated by this appellant at an appropriate time, which affected the vital organs of the body and ultimately the cause of death as per summary was multiple organ failure like liver, heart, lungs, kidney and brain. He further submitted that this is clinical features of complicated Falciparum Malaria. It has been contended by the counsel for this appellant that he had prescribed for MP Slide and was handed it over to the attendant and in case it was not done then its liability cannot be imposed upon this appellant. He was the treating Doctor, normally blood is taken by the Paramedical Staff of the hospital when the slip for tests were handed it over to the attendant. Patient was taken to the Lab and ultimately, the Blood was taken by the Technician and tests were done in which Malaria test was not there. Op No. 4 was the incharge of the Pathological Lab. Although she has taken the plea that she was not there because her duty hours were upto 3.00 p.m. and patient was taken thereafter 3.00 p.m. and the blood test was taken by the Technician and handed over to the attendant/ concerned Doctor at 4.00 p.m. on the same day. On the next day she was on leave. However, this appellant attended the patient in the evening as well as in the morning. In case he had received the report of other tests, which is on the record as Ex. C-9 and Doctor very well examined. In case all the tests were not conducted in the Pathological Lab or the Malaria Test was to be conducted in the Malaria Lab then the patient should have been referred there and its blood test for Malaria should have been done from there but this appellant did not care for to check even whether Malaria Test as recommended by him was got conducted or not? Therefore, in case the basic test for Malaria, was not got conducted from the concerned Lab then giving treatment on those lines cannot be thought.

12.              With regard to the presence of the Doctor after 12.00 p.m. on 11.12.2010. The clinical tests were conducted in the Clinical Lab and its report was sent to Doctor on 10.12.2010 at 4.00 p.m.. Then while examining the patient at that time or in the morning, this Doctor should have checked whether Malaria Test has been done, if not done then give directions for the same but no such directions were given. However, the Test was done in DMC & H and it was found positive. For not giving treatment for Malaria, had complicated the condition of the patient resulting into his death. The counsel for the appellant has also challenged that MP Slide was not done in the DMC, which may be treated as a Gold standard test. In the DMC Malaria Antigen test was conducted, although it may not be treated as gold standard but in this case, card test was done which in medical language can be stated as Falciparum Malaria Test. In case this type of test was available under the medical terminology then it cannot be said that the card test was a wrong test. With regard to the inquiry conducted by Dr. Bhupinder Singh, the same was got conducted on the complaint filed by the complainants. It is Ex. R-24. It has been mentioned that Medical Specialists had advised Malaria Slide alongwith other investigations. The staff on the duty handed over the investigation slip to the attendant of the patient as per her statement. After receipt of investigation slip in the laboratory, the blood sample was conducted after 3.00 p.m. and that Sukhwinder Singh, MLT had stated that he had told the attendant of the patient that MP Slide had to be appeared in the Malaria Laboratory on Emergency Ward Complex whereas SLT, MLT in the Malaria Lab stated that neither any requisition nor any attendant of the patient had come till 5.00 p.m. and next day Saturday and Sunday was holiday. In case Malaria test was not there, the MLT, who had taken the blood sample did not write on the slip or the investigation report that Malaria test be got done from Malaria Laboratory. Even if for the sake of arguments, it is taken that upto 5.00 p.m. no attendant or requisition slip was sent to the Malaria Lab but after all in the evening when the Doctor had come and checked the investigation, he had come to know that Malaria test was not got conducted. The Government Employees cannot refuse to attend in the Laboratory even after working hours in Emergency cases. They had to attend the office/Lab but no such efforts were made by this appellant to call for the laboratory technicians for Malaria Test. He even did not reach to the Hospital Management that keeping in view the critical condition of the patient, the Laboratory Technician be called for Malaria Test to rule out the Malaria so that the treatment could be started after proper diagnosis, therefore, problem of the patient was not properly diagnosed and treatment was given in a routine. The delayed treatment had caused damage to the vital organs of the body and the Malaria was the major cause for the same. Therefore, even the report of Dr. Bhupinder Singh is not sufficient to exonerate the appellant to properly diagnose the problem of the patient after taking the Malaria test.

13.              It was also argued that no expert opinion has been taken. As already discussed, after discharge from Civil Hospital, Hoshiarpur the patient was taken to DMC & H where the patient remained under the treatment of Dr. Rajesh, who appeared as CW-2 and he has stated that when immediately test was conducted, it was found positive and in the cause of death, it was clearly mentioned by him that it was due to multiple organ failure like liver, heart, lungs, kidney and brain and it was a clinical feature of complicated Falciparum Malaria and no evidence was produced by the appellant to contradict this opinion of the Doctor that this was not the cause of death on the basis of investigation and diagnosis made by the Doctors of DMC & H, therefore, when cause of death was already given by DMC & H then no other expert opinion was required. Expert opinion can be taken only in case on the basis of evidence on the record negligence cannot be proved or the Consumer Fora is not in a position to form an opinion whether the treating Doctor was medically negligent in treating the patient or not. When sufficient evidence was on the record then plea taken by the appellant that expert opinion was not taken is of no consequence.

14.              Although no plea was taken by this appellant that he being a Government Doctor and that the treatment was given to the patient in Civil Hospital free of cost and if the treatment was given free of cost then the complainant does not come within the definition of the ‘consumer’. But this plea has been taken by the appellant/OP No. 4 in her appeal. Therefore, this being a legal preposition, it is desired that the findings should be given before disposing of this appeal, irrespective of the fact that whether OP No. 3 has not taken the plea of ‘consumer’ and ‘service provider’ in his grounds of appeal or in the written reply.

15.              It has been argued by the counsel for this appellant as well as counsel for Op No. 4 Mr. Atul Nehra that the treatment given to the complainant was free of cost and just a token money was taken from the complainant and when the treatment is given free of cost then the patient or his LRs in the case of death does not come within the definition of the ‘consumer’. The reliance has been placed upon the well known judgment of the Hon’ble Supreme Court “Indian Medical Association versus V.P. Shantha & Ors.” 1995 STPL (CL) 74 SC and in para No. 39 of the judgment, it has been proceeded that under Section 2(1)(o) service has been observed as under:-

“(o)    "service" means service of any description which is made avail­able to potential users and includes, but not limited to, the provision of  facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

and exclusion clause under this definition is any service free of charge or under a contract of personal service. It was further observed in para No. 43 of the judgment that the Medical Practitioners, Government Hospitals, Nursing Homes and Private Hospitals, Nursing Homes broadly fall in three categories:-

“(i)     where services are rendered free of charge to everybody availing the said services;

(ii)      where charges are required to be paid by everybody availing the services; and

(iii)     where charges are required to be paid by person availing services but certain categories of persons who cannot afford to pay are rendered service free of charges.”

16.              It was observed that there was no difficulty in respect of first two categories. The Doctor and Hospital, who render services without any charge whatsoever to every person availing the service would not fall within the ambit of service under Section 2(1)(o) of the Act. The payment of token money for registration purposes only would not alter the position in respect of such Doctor or hospitals. It was further observed that it is question for consideration whether the services rendered to the patients is free of charge by Doctor and Hospital in Category (iii) is excluded by virtue of exclusionary clause in Section 2(1)(o) and in their opinion, the question has to be answered in the ‘negative’ because it is necessary to bear in mind that the Act has been enacted to provide for the protection of the interests of the Consumer in the background of guidelines contained in the Consumer Protection Resolution passed by the U.N. General Assembly on April 9, 1985 and ultimately, when the judgment was sub para in para No. 1, 9 & 10 of para No. 55, it was observed as under:-

“(1)    Service rendered to a patient by a medical practitioner (except where the Doctor renders service free of charge to every patient or under a contract of person service), by way of consultations, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act.

2 – 8           xxxxx                                      xxxxx                            xxxx

(9)     Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service – is outside the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(10)   Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be “service” and the recipient a “consumer” under the Act.

11 – 12      xxxxx                                      xxxxx                            xxxx”

17.              In the present case, the complainant has brought on the record the receipts regarding payment of charges to the opposite hospital. It is Mark C-3 vide which Rs. 10/- were paid as bed charges, Mark C-4 vide which Rs. 130/- were paid for CBC, RBS, Urea, Creat Widal test. Mark C-5 vide which Rs. 60/- were paid for CBC and vide Mark C-6 were paid for one unit blood. These charges cannot be taken as token charges for registration fee when the bed charges and test charges have been collected when the various tests were conducted in the Lab of the opposite Hospital for which the charges were taken. Therefore, it is difficult to hold that the treatment was free of charge when charges were taken by the OP Hospital. It is a different matter that the charges in the Government Hospital are less than the charges in the Private Hospitals because the State is a welfare State and to give cheap treatment to its Citizens they have fixed minimum charges to be taken from its Citizens, who take the treatment in the Government Hospitals. Therefore, in view of the ratio of law in the abovesaid judgment and keeping in view the facts of the present case, we hold that the treatment was not free of cost to the complainant and he comes under the definition of ‘consumer’ and Ops as ‘service provider’ as under Section 2(1)(o) of the Act.

18.              With regard to the fact that in the night of 11/12.12.2010, the patient was referred to PGI/DMC and was taken to DMC & H, Ludhiana and patient remained just 32 hours in this hospital and that the patient remained in the DMC & H for the period of 7 days and he died on 19.12.2010  but DMC & H was not made a party; there can be any negligence on the part of the Doctors in the DMC & H. For that Dr. Rajesh Mahajan had appeared as CW-2 and entire investigation and diagnoses made by them has come on the record. He has appeared as a witness and was subject to cross-examination for the counsel for the OP. However, during the cross-examination, the counsel for the OP was not able to pin-point anything over which the treatment was given in the DMC & H was a faulty one. In case immense damage was already caused to the patient before his admission in DMC & H, although they have made efforts but they could not save the patient then it cannot be said that there was some fault on the part of Doctors in DMC & H, who have not been made a party. As stated above, in case no specific allegations have been put against the Doctors of DMC & H with regard to the treatment by them then it was unnecessary to implead them as a party because the complainant before filing the complaint against any Hospital or Doctor is to check and verify whether there was any fault or negligence on the part of that hospital or Doctors, otherwise unnecessary no doctor or hospital can be impleaded as a party to face litigation for number of years, therefore, impleadment of DMC & H was not necessary and that there was no fault in the treatment given to the patient at that hospital. It was due to late diagnosis and then proper treatment in time was not given to the patient when he was admitted in Civil Hospital, Hoshiarpur, which aggravated the problem of the patient and ultimately, resulted in his death. Therefore, so far as medical negligence on the part of this appellant/OP No. 3 is concerned, we agree with the findings so recorded by the learned District Forum and the same are hereby affirmed.

19.              The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 1,00,000/- in compliance with the order dated 20.12.2013. These amounts with interest accrued thereon, if any, be remitted by the registry to respondents No. 1 & 2/complainants in equal share by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

20.              Remaining amount shall be paid by the appellant to respondents No. 1 & 2/complainants in equal share within 30 days from the receipt of the copy of the order.

FIRST APPEAL NO. 1371 OF 2013

21.              In the grounds of appeal, it has been stated that the appellant is MD (Bio-Chemistry) and is working in the Clinical Laboratory, Civil Hospital, Hoshiarpur. After the admission of the patient Gagandeep in the hospital at 2.20 p.m., his blood tests were referred but the appellant’s duty timing were 9.00 a.m. to 3.00 p.m. and she was not on duty after 3.00 p.m. The sample was taken at 3.15 p.m. by Sukhjinder, MLT and report was given at 4.00 p.m. and on the next day, she was on leave, therefore, she had not dealt the sample reports of this patient to conduct the various tests as recommended by Dr. Jajinder Kumar OP No. 3. Moreover, apart from Malaria tests, other tests were conducted in the laboratory and the report was sent. The said report is on the record as Mark C-9. For Malaria Test, there was a different Laboratory under the Supervision of Civil Surgeon. Whereas the learned District Forum has wrongly held the appellant /OP No. 4 was also be responsible for not conducting that test. The learned District Forum has not properly appreciated Annexure-21, 22 and 23, these are duplicate reports supplied under the RTI and wrongly mentioned that these bear her signatures. Therefore, in case Malaria test was not to be done in Clinical Laboratory in which the appellant was head then it was wrong for the District Forum to hold the appellant liable for not conducting that test. During the course of arguments, the counsel for the appellant/OP No. 3 has referred to the statement of Sukhjinder Singh in which he stated that on 10.12.2010, he had visited the Clinical Laboratory at 3.15 p.m. He had taken the blood sample of Gagandeep, conducted the tests CBC, RBS, Blood, Urea, S. Creatinine, S. Electrolytes, Widal and sent the report and that the timing of the Incharge are from 9.00 a.m. to 3.00 p.m. and the Test for Malaria is not conducted in the said Laboratory and there is a separate Laboratory under the supervision of Civil Surgeon. K.C. Mahajan, Advocate had sought the information from Civil Hospital, Hoshiarpur and in point No. 6, it was inquired whether the tests of Gagandeep were conducted by Dr. Seema Garg, Medical Officer and in its reply, it has been mentioned as ‘No’ and in Point No. 10, the Duty Hours of Seema Garg were inquired and it was intimated 9.00 a.m. to 3.00 p.m. and at Point No. 4, it has been mentioned that Sukhjinder, MLT had conducted the tests of Gagandeep patient, reply is ‘Yes’. Mr. K. C. Mahajan, Advocate on 16.1.2014 had also sought an additional information under the RTI  and at Point No. 3, it was inquired whether Dr. Seema Garg was present in the hospital after usual hours i.e. 9.00 a.m. to 3.00 p.m. on 10.12.2010 and reply is that she was on duty and call duty after 3.00 p.m. and at Point No. 6, whether Dr. Seema Garg was called for Emergency Duty after 3.00 p.m. and its reply is ‘No’, therefore, there is sufficient evidence on the record to show that the tests were conducted by Sukhjinder Singh, MLT at after 3.15 p.m. and at that time Dr. Seema Garg was not in the hospital. However, during the course of arguments, Sh. Munish Goel, Advocate has appended Annexure-21, which bears the signature of Dr. Seema Garg with date 10.12.2010. Whereas counsel for the appellant stated that these are duplicate reports prepared for supply on the information asked under the RTI and being Incharge of the Clinical Laboratory, it was signed by Dr. Seema Garg, otherwise, the original report is Annexure-23 and mark C-9, which was produced by the complainant and it does not bear the signatures of Seema Garg. Therefore, the original report does not bear the signatures of Dr. Seema Garg. Even if for the sake of arguments, it is taken that Seema Garg had signed that report, it has been replied by the hospital as well as the plea has been taken by Op No. 4 in the written reply that Malaria Test is not conducted in the Clinical Laboratory and it is conducted in the Malaria Lab, which is working under the supervision of Civil Surgeon, the instructions issued by the Director, Health and Family Welfare  to all the Civil Surgeons with regard to maintenance of Malaria Laboratories have been placed on the record as Mark R-4/30. Therefore, the counsel for the respondent/complainant has not been able to establish on the record that the Malaria Test was to be conducted in Clinical Laboratory of which Dr. Seema Garg was the Incharge. In case the said test was not to be conducted in the Clinical Laboratory of which Dr. Seema Garg was Incharge then no fault could be found on the part of Dr. Seema Garg. In case the test was conducted and report was sent at 4.00 p.m. and OP No. 3 had visited the patient in the same evening as well as in the next morning and in case the Malaria test was not there, he can again direct the Paramedical Staff or the Attendants of the patient to go for Malaria Test. Any Doctor can be held for medical negligence in case he acted against the medical standards or had not done, which was required to be done according to the renowned judgment i.e. as per law settled in Bolam’s case i.e. Bolam v. Friern Hospital Management Committee, (1957) 2 ALL ELR 118. Since the Malaria test was not to be conducted in the Clinical Laboratory, therefore, OP No. 4 cannot be held liable that she did not conduct the test, which was required to be conducted in her Laboratory. Therefore, we are of the opinion that appreciation of the evidence on the basis of which the learned District Forum has fix the responsibility of OP No. 4 regarding medical negligence is not proper and the said findings against her are required to be set-aside.

22.              In view of the above, we accept this appeal. The order of the learned District Forum to hold this appellant-OP No. 4 to be vicariously liable alongwith others is hereby set-aside and the complaint of the complainant qua this appellant is hereby dismissed.

23.              The appellant in this appeal had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 1,00,000/- in compliance with the order dated 20.12.2013. These amounts with interest accrued thereon, if any, be remitted by the registry to the appellant-OP No.4 by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

FIRST APPEAL NO. 1400 OF 2013

24.              This appeal has been filed by OP Nos. 1 & 2. These appellants/Ops have been held vicariously liable on account of medical negligence on the part of OP Nos. 3 & 4. Although in view of our order in First Appeal No. 1371 of 2013, it has been held that Dr. Seema Garg was not negligent in case Malaria Test was not conducted in the Clinical Laboratory. However, Dr. Jatinder Kumar, who was the Medical Specialist and attended the patient, had been held guilty by the District Forum and his First Appeal No. 1366 of 2013 has also been dismissed and in this appeal, similar pleas have been taken, which were taken by Dr. Jatinder Kumar in his appeal and the findings have been recorded by this Commission, in Appeal No. 1366 of 2013.

25.              Now the basic preposition is whether these appellants/Ops can be held vicariously liable for the deficiency in services on the part of OP No. 3. Since OP No. 3 was working with OP No. 2 under the control of OP No. 1 and OP No. 3 is in the Employment of OP No. 1 and he gets the salary from Op No. 1, therefore, there is relationship of Master and Servant between Op Nos. 1 and 2 with Op No. 3 and in case there is a deficiency in services on the part of OP No. 3 then certainly OP Nos. 1 & 2 will also be vicariously liable. Counsel for the appellants has not been able to convince before us that in case Op No. 3 held liable for deficiency in services how Op Nos. 1 & 2 being his Employer cannot be held vicariously liable.

26.              The next point raised by the counsel for the appellants is that the amount granted to the complainant is highly exaggerated. The patient Gagandeep was just 23 years and was having Diploma in Information Technology. He was the only son of the complainants and was ray of hope for this old couple and in case the life of this young man has been taken on account of negligence or deficiency on the part of Op Nos. 1 to 3 then the complainants being the parents are entitled for compensation. The compensation awarded is just Rs. 9,22,400/- in the case of young man, who was to rise in his life and to become a helping hand of his old parents, cannot be said to be an exaggerated amount, therefore, we are of the opinion that the amount awarded by the learned District Forum is just and reasonable. This amount will be shared by Respondent Nos. 1, 2 and respondent No. 3 in the rate of 50% each. 

27.              In view of the above discussion, we do not find any merit in this appeal and the same is dismissed with no order as to costs.

28.              The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 4,00,000/- in compliance with the order dated 9.1.2014. These amounts with interest accrued thereon, if any, be remitted by the registry to respondents No. 1 & 2/complainants in equal share by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

29.              Remaining amount shall be paid by the appellants to respondents No. 1 & 2/complainants in equal share within 30 days from the receipt of the copy of the order.

30.              The arguments in these appeals were heard on 24.2.2015 and the orders were reserved. Now the orders be communicated to the parties as per rules.

31.              The appeals could not be decided within the statutory period due to heavy pendency of Court cases.

32.              Copy of this order be placed on F.A. No. 1371 of 2013 and F.A. No. 1400 of 2013.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                            (Jasbir Singh Gill)

                                                                                                    Member

 

February 27, 2015.                                                                                                                                           (Harcharan Singh Guram)

as                                                                                                                                                                                    Member

 

 

 

Whether judgment refer to the Reporter        :           Yes □              /    No   □

 

  (Gurcharan Singh Saran)

 Presiding Judicial Member