BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
C.C NO.360/2007
Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).
1. Damodar Mishra, aged about 36 years,
S/o- Sri. Sambhu Saran Mishra.
2. Mamata Mishra, Aged about 34 years,
W/o- Sri Damodar Mishra.
Both are resident of Kishna Nagar, Po-Khetrajpur,
Ps- Ainthapali, Dist-Sambalpur. …..Complainant
Vrs.
- Sanjivini a family Hospital,
At/Po- Modipara, Ps- Town Dist- Sambalpur.
- Oriental Insurance Ltd.
Registred Office-Oriental House
PB. No. 7037. A-25/27. Asraf Ali road,
New Delhi-110002,
Having its local office at Divisional Office,
Nayapara, Sambalpur.
- United India Insurance Company Ltd.
Division Office No.9. 5th Floor, Rohit Chambers,
Janmabhoomi Marg ,Fort, Mumbai-400001,
Having its Local Office at Divisional Office,
V.S.S.Marg Sambalpur.
- FOGSI
(Federation of Obstetric Gynaecologocal Society Of India)
Cama & Albless Hospital, New Building,
-
-
Counsels:-
- For the Complainant:- Sri S. Sharma, Advocate.
- For the O.P-1 :- Sri P.P.Panigrahi, Advocate.
- For the O.P-2 :- Sri A.K.Debta,Advocate.
- For the O.P-3 :- Sri B.K.Purohit, Advocate.
- For the O.P-4 :- None.
DATE OF HEARING : 30.03.2021, DATE OF ORDER : 13.04.2021
SRI DIPAK KUMAR MAHAPATRA,PRESIDENT-The Complainants are the father and mother of the fourteen years child named as Late Abhishek Mishra who is alleged to be died due to medical negligence. On dtd. 27.11.2006 the son of the Complainant late Abhishek Mishra(here-in-after called as the deceased ) returning home after procuring milk on a bicycle at a place near Marwari Dharamshala, a Taker was ran over his body for which the deceased sustained severe injury on his waist and leg. The deceased was shifted to Sanjeevani Hospital at about 6.45 pm. Where the O.P-1 accepted and took the patient into the hospital for treatment. The patient was bleeding profusely and the authority of the O.p-1 did not take any step to stop bleeding. There was a fluctuation in blood pressure and loss of haemoglobin thereby reducing the oxygen carrying capacity of blood to different organ of the patient which resulted in death due to delay in blood infusion. The Child was kept in the veranda of the hospital from 6.45 to 10.00 pm. Without life support system and the bleeding was continued till the last breath of the child. Again allegation was made that the O.P has manipulated the discharge certificate as they have wrongly mentioned the admission time as 8.00 pm instead of 6.45 pm. Again two doctors namely Dr. Rout and Dr. Puthal were took the charge of the patient who are supposed to a Homoeopathy doctors having no knowledge of Allopathic treatment. Also it is alleged that one of the owner of the O.P name Dr. Purusottam Agrawal is residing in the upstairs of the Hospital with his family did not even came to the patient but peeped from the upstairs when the child was lying on the veranda of the hospital. The O.P could not arrange surgery specialist, or any orthopaedics doctor to treat the patient. The Complainant alleges that the O.P has a huge political hold and influence. As the father of the patient is a priest having no so strong financially, has been overlooked by the O.Ps and performed mischief. The Complainants claims that if the patient was attended and the treatment was in time there would have a chance of survival of the child but due to gross negligence of the O.P the life was lost at an early age.
The evidence on affidavit filed by the Complainant on dtd. 18.07.2018 it is seen that the Complainant has stated to be deposited a sum of Rs.5000/- with the O.P-1 at the time of admission in to the hospital and he was not supplied of any receipt at that time.
Again a memo filed by the Advocate for the Complainant it is inferred that the O.P-1 and his family hospital are covered under the group indemnity policy vide no- 212 of 2006 commencing from 16.09.2006 to 15.09.2007 with Oriental Insurance co ltd. Also the O.P-1 and his family hospital are covered under the group indemnity policy issued by United India Insurance Company Ltd. Through Federation of Obstetricts & Gynecological society
of India(FOGSI) under policy no- 02090046064500000158 which is valid till 01.09.2006 as
such the O.P-3 is liable to indemnify the loss sustained by the Complainants. By the way of
compensation. He United India Insurance Company Ltd. Has sent a certificate no-5372 dtd.
19.04.2007 under category D-4 . On getting show cause notice of this case the O.P-1 sent a copy of this notice to the FOGSI for their information and necessary action hence the O.P-4 is liable to indemnify the loss sustained by the Complainants.
As per the O.P-1 the patient was brought to the hospital of the O.P-1 after high energy impact injury concerning Road Traffic Accident and he was given emergency treatment. The father and grandfather of the injured child were performing puja/ritual in the house of the O.P and previously known to the O.P-1 for which no demand of fee or offer for treatment. The patient was brought to the Sanjeevani Family hospital around 6.30 pm. With injuries, multiple fractures of pelvis and femur and a lot of blood loss due to high energy impact RTA. The patient was immediately put on IV fluid and oxygen and internal bleeding was stopped by pressure effect with suturing and bandaging the exposed wounds. The injections with proper medicines were administered, fracture ends were immobilised with tractions The blood group of the patient were determine, the haemoglobin count was reduced to 6.4 gd. thereby requiring immediate blood transfusion. So immediately requisition of 3 units of blood was issued to the Complainant and was asked to arrange the same without any delay. The O.P-1 informed telephonically to the Doctor-in- charge of blood Bank of Sambalpur for the urgent requirement of 3 units of blood. After giving emergency treatment the patient was referred to VSS Medical college and hospital Burla/Dist. Head Quarter hospital Sambalpur for better treatment. He was also offered a free service of ambulance for that purpose. But the parents of the injured child express their unwillingness to shift their child to either of the above centre because of confidence on the O.P-1 In this circumstances the O.P-1 undertook to carryout treatment and give his best to the patient. The O.P-1 clears that there is no homoeopathy dictators are engaged in the Sanjeevani Family hospital to carryout allopathic treatment. The O.P-1 is a gynaeic surgeon having expertise in dealing with bleeding, severe anaemia, shock cases and surgery. He is a resident doctor of the Hospital and was constantly checking the vitals of the patient and monitoring as per the demand of the situation. The O.P-1 denies the allegation of peeping of the doctor from the upstairs to the veranda where the patient was kept before admission as there is no such veranda in the said hospital The Sanjeevani Family Hospitals are not permitted to collect blood on their own but blood has to be collected from the Blood Bank on exchange of donors. The father of the patient brought the blood belatedly by which time the patient has breathed his last. The Collection of blood by the attendant are not in the control of the O.P-1 and the responsibility cannot be fixed on the O.P-1 The death of the patient cannot be attributed to the medical negligence on the part of the treating doctors. After taking history the doctors found that there were lacerated wounds of left eye with bleeding and lacerated injuries over the fore head near right eye with bleeding. The patient was semi conscious, sweating, having B.P low (70/50), extreme pallor, respiratory rate 23/minute hence it was clinically diagnosed as in Haemorrhagic Hypovolemic Shock due to RTA. The O.P-1 has mentioned the account of management undertaken towards the treatment of the patient. But due to rigorous efforts in the management of the patient the life of high energy injury patient could be prolonged for 3 hours. Hence prima facie no medical negligence is made out by the Complainants and no material s has also been produced on record to prove the negligence of the O.P. As above the O.P has treated the patient as per the standard practice of medical science and exercised reasonable competency.
As per the O.P-2 there is no allegation against the O.P-2 made by the Complainant. He is not liable to any compensation as there is no contract of insurance as on the date of alleged cause of action hence the claim is not maintainable.
As per the O.P-3 one Professional Indemnity policy of Insurance was issued by the O.P-3 vide no- 020900/46/06/35/00000158 in the name of the FOGSI. For doctors and professional negligence and Errors and omission policy for Medical Establishment. For the period commencing from 01.03.2007 to 29.02.2008 in which DR. Purusottam Agrawal was covered. As the incident was occurred on dtd. 01.03.2006 the aforesaid policy was not covered to DR. Purusottam Agrawal as such no claim against the aforesaid policy is maintainable.
POINTS OF DETERMINATION:-
- Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
- Whether the medical negligence can be attributed to the O.P-1?
- Whether the O.P-2, 3 & 4 has committed any Deficiency in Service to the Complainant?
From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has availed medical services from the O.P-1 and claims to have paid Rs.5,000/-. As per evidence on affidavit filed by the Complainant on dtd. 18.07.2018 after 11 years of the filling of this case it is seen that the Complainant has stated to be deposited a sum of Rs.5,000/- with the O.P-1 at the time of admission in to the hospital but he has not submitted any receipt to support his stand. On the other hand the O.P-1 claims that as the father of the deceased was a priest previously known to the O.P-1 and he has offered free services to the patient; hence there is no question of taking money and issuing receipts. Again as per the O.P1 the case of the Complainant is a case of Haemorrhagic Hypovolemic Shock due to Road Traffic Accident. While receiving the patient at the Hospital of the O.P-1 the observations were lacerated wounds of left eye with bleeding and lacerated injuries over the fore head near right eye with bleeding with multiple fractures of pelvis and femur and a lot of blood loss due to high energy impact RTA. The patient was semi conscious, sweating, having B.P low (70/50), extreme pallor, respiratory rate 23/minute. During the period of treatment at the hospital of the O.P-1 the patient was referred to V.S.S Medical at Burla and Dist. Head Quarter Hospital at Sambalpur to avail higher medical facilities but the Complainant denied to shift the patient. The O.P-1 tried effortless to check the flow of blood has suggested to transfusion of 3 units of blood which were arranged and brought to the hospital by the father of the patient belatedly but at that time the patient was no more. From the affidavit Evidence filed by the O.P-1 it is observed that the Complainant has filed a MACT case vide no-56 of 2007 with the Dist. Judge cum MACT, Sambalpur on which judgment was pronounced by the MAC tribunal who assessed and awarded the compensation at Rs.1.85 lakhs on dtd. 15.07.2010. By seeking double compensation for the same loss the Complainant has lodged a case in this Commission for a compensation of Rs.18 lakhs. In the MACT petition at para 23 the Complainant has stated that their son succumbed to injuries given by the Tanker but no where they mentioned that the death was caused due to negligence of the treating doctors. Also in the examination in chief the Complainant has stated that the death of his son was due to rash and negligent driving of the Tanker No- OR-15-C-8489. Again the charge sheet submitted by the Police the same reason was stated.
It is settled law that the onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. In my view the present the Consumer Complaint completely lacks facta probantia and ought to be dismissed on that ground alone.
The Hon'ble Supreme Court in Kusum Sharma Vs. Batra Hosptial and Medical Research Centre, (2010) 3 SCC 480, has observed that "the normal human tendency is to pick fault whenever there is a death in the family for which the doctor cannot be made a scapegoat. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. Filing such complaints under the Consumer Protection Act against doctors on the rise and in many cases these being frivolous, the Hon'ble Supreme Court said "Courts have to be extremely careful to ensure that unnecessarily professionals are not harassed and (or else) they will not be able to carry out their professional duties without fear". Again reliance can be place on the judgment of National Consumer Disputes Redressal in the matter of Girishchandra V. Bhatt & 2 Ors. vs Sterling Hospital on 19 March, 2018. Again the O.P-1 and his family hospital are covered under the group indemnity policy with Oriental Insurance co ltd. and with United India Insurance Company Ltd. Through Federation of Obstetricts & Gynecological society of India(FOGSI) which is valid till 01.09.2006. So on the date of accident the O.P-1 was insured with the O.P-2. From going through the above bundle of facts it is inferred that the allegation against the O.P-1 is not established. Similarly the liabilities against the O.P-2, 3 & 4 does not come into existence which is directly proportional to the liabilities of the O.P-1. So the Complaint petition is disallowed being devoid of any merit.
Order pronounced in the open Court today i.e, on 13th day of April 2021 under my hand and seal of this Commission.
Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.
I agree,
-Sd/- -Sd/-
MEMBER(W) PRESIDENT
Dictated and Corrected
by me.
-Sd/-
PRESIDENT
