Rajasthan

StateCommission

A/85/2018

Lal Chand s/o Bhadhur Gurjar - Complainant(s)

Versus

Santosh Nursing Home - Opp.Party(s)

Gopal Shastri

26 Mar 2019

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

 

FIRST APPEAL NO: 85 /2018

 

Lal Chand s/o Bahadur r/o Mohalla Koluhera, Police Thana Kotputli, Tehsil Kotputli Distt. Jaipur.

Vs.

Santosh Nursing Home, Kotputli, Distt.Jaipur through Dr.Ashok Gupta r/o 7A-8, Santosh Nursing Home, Kotputli, Jaipur & ors.

 

FIRST APPEAL NO: 94 /2018

 

Santosh Nursing Home, Kotputli, Distt.Jaipur through Dr.Ashok Gupta r/o 7A-8, Santosh Nursing Home, Kotputli, Jaipur

Vs.

Lal Chand s/o Bahadur r/o Mohalla Koluhera, Police Thana Kotputli, Tehsil Kotputli Distt. Jaipur. & ors.

 

Date of Order 26.3.2019

 

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Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Mrs.Meena Mehta-Member

 

Mr. Gopal Shastri counsel for the complainant consumer

Mr. Anurag Kulshreshtha counsel for Santosh Nursing Home

Mr. Prashant Mantri counsel for insurance company

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

Both appeals are preferred against the single order hence, are decided by this common order.

 

The contention of the hospital is that no negligence has been committed. By conservative mode the surgery has been committed. Due care has been taken hence, the claim should have been dismissed.

 

Per contra the contention of the consumer is that claim has rightly been allowed but future prospects have not been addressed hence, the claim should have been enhanced.

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Heard the counsel for the parties and perused the impugned judgment as well as original record of the case.

 

The hospital has submitted additional documents and application under Order 41 Rule 27 CPC has been submitted and contention of the hospital is that treatment papers were furnished to the counsel but by bonafide mistake they could not be submitted alongwith the reply. Hence, be taken on record.

 

Per contra the contention of the consumer is that before the Forum below no treatment documents have been submitted hence, their genuineness is not unquestioned and could not be taken on record.

 

The hospital has submitted 18 documents alongwith application. Anx. 2, 3 & 4 need not be taken on record as these are the copies of the complaint, reply and insurance cover note which are already available on record of the case. Likewise there is no dispute about the fact that doctor was competent to conduct surgery hence, Anx. 7 to 9 degree of MBBS etc. are also irrelevant. Further Anx. 17 & 18 are the photo copy of the

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judgment passed in criminal case and statement of witnesses which cannot be considered here. Hence, all these documents are irrelevant.

 

Anx. 4, 5 and 11 to 16 are the treatment papers but admittedly these papers were in the possession of the appellant hospital at the time of filing of the reply or affidavit before the Forum below but the appellant has not chosen to submit these papers at that time.

 

The contention of the appellant hospital is that papers were given to the counsel but mistakenly they could not be submitted. Be that may be the case, Dr.Ashok Gupta has submitted his affidavit before the Forum below but there is no reference of any documents in the affidavit and non reliance of the documents in affidavit has not been explained. In view of the above the fear of the complainant seems to be genuine one that documents are prepared later and when genuineness of the same is not established, could not be taken on record.

 

The appellant has relied 2002 (2) CPJ 94 Khivraj Motors Vs. V.Chandrababu where sufficient cause was shown

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for not bringing the evidence earlier on record but here in the present case no reason has been assigned by the appellant for not bringing the treatment documents on record even the doctor has sworn the affidavit.

 

In view of the above application under Order 41 Rule 27 CPC is rejected.

 

The contention of the hospital is that complainant has not submitted any documentary evidence except the papers of criminal case to prove his deficiency. Hence, claim should have been dismissed.

 

It is true that the complainant has not submitted any documents to show the deficiency of the hospital but it may be noted that it is an admitted case between the parties that complainant's wife Meera Devi remained admitted in the appellant hospital. Operation was conducted which was uneventful. She was shifted from the operation theatre at 12 but at 7.30 sudden convulsions started , BP was gone to 170/120 and patient died at 8.35 p.m. and counsel for the complainant has rightly pointed out that it is a case of res ipsa

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loquitur and reliance has been placed on 2014 ACJ 1393 Ashish Kumar Vs. Aishi Ram Batra Charitable Hospital Trust and in view of the above it was the duty of the hospital to prove absence of any negligence.

 

The maxim res ipsa loquitur is explained by by Erle C.J. In Scott Vs. London & St. Katherine Docks, (1985) 3 H&C 596:

“……..where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

 

The maxim applies to a case in which certain facts proved by the plaintiff, by itself, would call for an explanation from the defendant without the plaintiff having to allege and prove any specific act or omission of the defendant.

 

In view of the above, the hospital has not given any evidence to the effect that what is the cause of sudden

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convulsion and how the patient has been treated and managed. Even in reply to the complaint details of treatment has not been given which are being narrated now in para 7 of the appeal.

 

The complainant has relied upon IV (2015) CPJ 691 (NC) BSR Cancer Hospital Vs. P.Raju Lyer wherein duties which a doctor owes to his patient are being explained. There cannot be any quarrel about this preposition.

 

The contention of the hospital is that during performing laparoscopic surgery the doctor has noticed some complication and he proceeded to perform conventional surgery which is also settled medical procedure. Hence, no deficiency could be attributed to the hospital or doctor but the contention is after thought as in reply to the complaint this is not the case of the hospital that due to complications in gall bladder the doctor has switch over to the conventional surgery. Per contra the reply of the hospital is that as laparoscopic machine was not functional conventional surgery was done which persee shows the callous attitude of the hospital.

 

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The contention of the hospital is that consent has been taken for laparoscopic surgery and conventional surgery both and when conventional surgery has been performed no deficiency could be attributed to the appellant hospital but consent letter has not been submitted before the Forum below. Here in the State Commission Anx. 5 & 6 consent letters are submitted which are printed and nothing has been entered in consent letters that for both type of surgeries consent has been taken.

 

The hospital has relied upon judgment passed by the apex court in Civil Appeal No. 3971/2011 Dr.S.K.Jhunjhunwala Vs. Dhanwanti Kumar where after noticing abnormal gall bladder while performing laparoscopy surgery the doctor proceeded to perform conventional surgery and that too after obtaining fresh consent of complainant's husband but these safeguards are missing here. The patient has not been informed that conventional surgery is being conducted or no reason has been assigned for switching over to conventional surgery but as per the admission of the hospital as laparoscopic machine was not working casually conventional surgery was done.

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The appellant hospital has further relied upon 2016 (1) CPJ 176 Irene Pais Vs. Dr.Anil pinto where after noticing the bleeding the treating doctor has switch over to an open laparotomy technique recommended protocol in the medical science. As already observed here in the present case no reason has been disclosed by the appellant hospital for switch over to conventional surgery. Per contra the reply clearly admits that due to failure of the laparoscopic machine conventional surgery has been done.

 

The counsel for the complainant has rightly point out that before and after the operation as per anesthesia record there was no complication. The counsel for the hospital has not objected the same. Hence, it was the duty of the hospital to show that no negligence has been committed by them but here in the present case in absence of any documentary evidence it has rightly been presumed that the doctor is negligent and reliance could be placed on the judgment passed by the National Commission in First Appeal 522/2008 Leela G Nair Vs. Prof.Dr.K.P.Haridas it has been held as under:

 

“ Medical record maintenance has evolved into a science

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of itself and form an important aspect of the management of a patient. It is important for the doctors and hospitals to properly maintain the records of patients. It will help the doctor to prove that the treatment was carried out properly. The proper medical record it will help them in the scientific evaluation of their patient profile, helping in analysing the treatment results, and to plan treatment protocols. It is wise to remember that “Poor records mean poor defense, no records mean no defense”.

 

 

In view of the above when no document has been submitted to prove that the treatment was carried out properly, negligence of the non-applicants is writ large.

 

Hence, in view of the above there is no merit in the appeal preferred by the hospital.

 

The contention of the complainant is that compensation should have been enhanced and future prospects should have been taken care and reliance has been placed on 2017 (2) RAR 147 (SC) National Insurance Co. Vs. Pranay Sethi where in view of sec. 163 A and 166 of Motor Vehicle Act compensation

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has been determined. The system of computing damage given in Motor Vehicle Act is not applicable in the cases of deficiency hence, the judgment passed by the apex court could not give any benefit to the complainant in the present matter. The Forum below has passed appropriate compensation in favour of the complainant. No grounds have been shown to enhance the same.

 

In view of the above, there is no merit in both the appeals and both appeals stand dismissed.

 

(Meena Mehta) (Nisha Gupta)

Member President

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