Haryana

Kaithal

33/19

Mahinder - Complainant(s)

Versus

Shah Hospital - Opp.Party(s)

Sh.Parvinder Singh

28 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.33 of 2019.

                                                     Date of institution: 05.02.2019.

                                                     Date of decision:28.02.2023.

Mahinder S/o late Sh. Madan Lal R/o Kannugo Mohalla, Kaithal, District Kaithal.

                                                                        …Complainant.

                        Versus

1. Shah Hospital, Opp. Old Bus Stand Kaithal through its Director Dr. M.S.Shah.
2. Dr. Bikramjeet Singh Shah, Shah Hospital, Opp. Old Bus Stand Kaithal, Haryana.
3. The Oriental Insurance Company Ltd. 4E/14, Azad Bhawan Jhandelwalan Ext. New Delhi-110055 through its Branch Manager.

….Respondents.

        Complaint under Section 12 of the Consumer Protection Act

CORAM:     DR. NEELIMA SHANGLA, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                       

Present:     Sh. P.S.Wadhawan, Advocate, for the complainant.   

                Sh. O.P.Gulati, Advocate for the respondents.No.1 & 2.

                Sh. P.P.Kaushik, Adv. for the respondent No.3.

               

ORDER

DR. NEELIMA SHANGLA, PRESIDENT

        Mahinder-Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the respondents.

                In nutshell, the facts of present case are that the complainant is class-IV employee of the Municipal Council, Kaithal and is a poor and illiterate person.  The case of complainant is that on 13.09.2017, the complainant met with a road-side accident, his motor-cycle was hit by unknown vehicle, he fell down and he was brought to the hospital of respondent No.1.  As per the treatment certificate, it was diagnosed by the doctor that his left tibia and fibula was fractured.  The complainant remained admitted in the hospital till 16.09.2017 and he incurred Rs.34,246/- on his treatment.  The complainant was not feeling well, therefore, he kept on visiting the respondent No.1 after his discharge regularly.  Even after his discharge from the hospital, he was not satisfied with the condition, hence since 16.09.2017 till 30.03.2018 he was under the treatment of respondent No.2.  After six months treatment, the respondents No.1 & 2 had given fitness certificate Annexure-C4 to the complainant, whereas the complainant was not feeling any relief.  The complainant visited Civil Hospital, Kaithal on 30.03.2018 and after complete check-up, the hospital came to the conclusion that his injury was not recovered and the concerned doctors referred him to P.G.I., Chandigarh.  The complainant visited the P.G.I., Chandigarh on 06.04.2018 and the doctors re-examined the complainant and had found that the treatment given by the respondent No.2 was not satisfactory.  So, it is a clear cut case of deficiency in service on the part of respondents and prayed for acceptance of complaint.     

2.            Upon notice, the respondents appeared before this Commission and contested the complaint by filing their written version separately.  Respondents No.1 & 2 filed the joint written version raising preliminary objections with regard to locus-standi; maintainability; cause of action; non-joinder of necessary party; that there is no negligence on the part of answering respondents; that the patient Mahinder was brought to the respondent hospital on 13.09.2017 in emergency critical condition due to road-side accident caused by his own negligence and carelessness.  On examination, patient was conscious, oriental vitals were stable.  Patient was investigated, PAC was done.  Patient had fracture of tibia and fibula for which knee slab was given.  Patient was operated on 13.09.2017 by respondent No.2 with ORIF (Open Reduction Internal Fixation) with TENS (Titanium Elastic Nailing) under spinal anesthesia given by Dr. Swadheen Kumar Rout Post-operatively patient was given slab.  Patient is a known chronic smoker and chronic Alcoholic; patient was advised to quit smoking and other bad habits.  Above knee slab was applied and for 4 to 5 weeks and following 6 weeks patient was advised partial weight bearing with help of walker and after 3 months, patient started walking with the help of stick and did not require any aid to walk after 6 months post-surgery, so patient was given fitness certificate.  Everything the respondents No.1 & 2 have done diligently, prudently and utmost care and caution in treating the said patient.  As per treatment papers i.e. OPD slip dated 30.03.2018 available on judicial file, it reveals that the patient was also treated/operated at Sangrur and this fact has been concealed from this court.  Treating doctor of Sangrur is also necessary party to the complaint.  There is no deficiency in service on the part of respondents.  On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

3.             Respondent No.3 filed the written version raising preliminary objections with regard to locus-standi; maintainability; cause of action and followed the same line as of respondents No.1 & 2 and so, prayed for dismissal of complaint. 

4.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C37 and thereafter, closed the evidence.

5.           On the other hand, the respondent No.3 tendered into evidence affidavit Ex.RW1/A and respondents No.1 & 2 tendered into evidence affidavits Ex.RW2/A & Ex.RW3/A alongwith documents Annexure-R1 to Annexure-R20 and thereafter, closed the evidence.

6.             We have heard the learned Counsel for both the parties and perused the record carefully.

7.             Sh. P.S.Wadhawan, Adv. for the complainant has stated that there is gross negligence on the part of Dr. Bikramjeet Singh-respondent No.2 as the complainant felt continuous pain in his leg, hence, he had to go to Civil Hospital, Kaithal from where he was referred to P.G.I.Chandigarh.  Therefore, his nails were removed from his leg and pain in his leg ended.  This is the case of complainant that his leg was not rightly operated by Dr. Bikramjeet Singh-respondent No.2. 

8.             Rebutting his arguments, Sh. O.P.Gulati, Adv. alongwith Sh. P.P.Kaushik, Adv. for the respondents have argued that when the nails/plate are removed from the leg, then pain comes to an end but till the bone in the leg is re-united actual then through nails/plate have to be kept inside the leg alongwith bone.  Bone is made of metal which spreads during summer season and in rainy season also it becomes cool and caused pain in the leg in which fracture was occurred.  Due to lack of calcium also, reunion of bone is delayed.  In P.G.I. Chandigarh when the nails and plate are removed, then the pain in the leg ended.

9.             Sh. P.S.Wadhawan, Adv. for the complainant has further argued that after the surgery of leg of complainant, pain continued and the pain came to an end when in the hospital of P.G.I., Chandigarh screws and plate from leg were extracted there because reunion of the bone took time of more than six months.

10.            Rebutting his arguments, Sh. O.P.Gulati, Adv. for the respondents No.1 & 2 has argued that some time lack of calcium, the broken bone of the leg takes some time for reunion and some time due to lack of calcium in the bone of injured takes some time for reunion.  He has argued that as per history of patient, he is a chain smoker and heavy drunkerd, due to which also there is some time mal-union of the bone or it delays the reunion of bone.

                Ld. counsel for the respondents No.1 & 2 has placed reliance on the case law laid down by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Girishchandra Vs. Bhatt & others, 2018(3) CPJ 178; Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Anil Kumar Gupta Vs. Mukesh Jain (Dr.) 2018(2) CPJ 3 and Punjab State Consumer Disputes Redressal Commission, Chandigarh in case titled as J.S.Ahluwalia Vs. Fortis Hospital, Fortis Healthcare Ltd. & others 2018(1) CPJ 178.

11.            Sh. P.P.Kaushik, Adv. for the respondent No.3-Insurance Company has argued that as per Landmark Judgment of Hon’ble Supreme Court of India on medical Negligence in case  Kusum Sharma & Others V/s Batra Hospital & Others: 2010(3) SCC 480, it was held:

-As long as doctors have performed their duties and exercise ordinary degree of professional skill and competence they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their duties with free mind. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher elements of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

• Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one cause of action in performance to the other one available, he would not be liable if the course of action chosen by him, was acceptable to the medical profession.
• It is held that: It would be conducive to the efficiency of medical profession if no doctor could administer medicine without a halter round his neck.
• It is our burden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
• The Medical practitioners at times have to be saved from such a class of complainants who use criminal process as a tool  for pressurizing the medical professional/hospital particular private Hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
• The Medical Professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of patients. The interest and welfare of the patients have to be paramount for the medical professionals.
• As such Hon’ble Supreme Court further held that:- “When we apply settled principles enumerated in the paragraphs in dealing with cases of medical negligence, the conclusion becomes irresistible that the appellants have failed to make out any case of medical negligence against the respondents”.
• As per Judgment of Hon’ble National Commission 1996(2) CPJ 233: A Doctor can be held guilty of medical negligence only when he falls short of the reasonable medical care. A Doctor cannot be held to be negligent merely because in the matter of opinion he made an error of judgment. When there are two schools of thought about the management of clinical situation, the court cannot place the hall mark of the legality upon one of them.
• As per Judgment of Hon’ble Supreme Court 2021 AIR (Supreme Court) 4690:- Medical Negligence- Where treatment is not successful or patient dies during surgery it cannot be automatically assumed that medical professional was negligent.

1. Medical Negligence- Onus to prove medical negligence always lies on complainant. There is no medical record to indicate that treatment given by OPs 1 and 2 is a part of medical negligence.
2. OPs No.1 and 2 had performed his duty with adequate medical competence and to the best of his abilities and with due care and as per standard procedure. (Reliance is placed on the Treatment record- Annexure- R14, Annexure -R15, Annexure -R17 to Annexure -R19 and Annexure - C3)
3. No expert Opinion is placed on file which is mandatory for disposal of matter relating to medical negligence.
4. Nothing mentioned anywhere or in any medical record placed on file that treatment given by OPs No.1 and 2 is wrong or that without following standard procedure.  (Reliance is placed on Medical treatment records-Annexure-C20, Annexure-R36 and Annexure-R37)
5. Complainant is a Chronic smoker and advised to stop drinking alcohol and smoking. (Reliance is placed on Annexure-C7, Annexure-R16 and Annexure-R9)
6. Concealed history of surgery conducted at Sangrur after treatment from OPs No. 1 & 2. (Annexure-C20)

 

1. Medical Negligence- Onus to prove medical negligence lies largely on complainant and that this Onus can be discharged by leading cogent evidence. Girishchandra v. Bhatt Versus Sterling Hospital III(2018) CPJ 178 (NC)

No specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by the complainant against the OPs no. 1 and 2 and the complainant has totally failed to explain as to how OPs No. 1 and 2 were negligent” in the above said case. Hon’ble National Commission Held that,

•  

Complainant had not placed any record to show/prove the negligence of OPs no. 1 and 2 neither specifically mention about how the treatment given by OPs no. 1 and 2 is negligent. After the treatment taken from OPs No. 1 & 2 the Complainant got himself treated at Sangrur and in Civil Hospital, Kaithal. The history of treatment at Sangrur (concealed by complainant and mentioned in ANX-C20) and as well as in PGI, Chandigarh (ANX-C36 and ANX-C37) but in both the reports/ treatment record it has not been mentioned by the doctors that treatment given by OPs no. 1 and 2 is wrong and while providing treatment OPs no.1 and 2 committed any negligence on his part.

2. In the case of Bishakha Ghosal Vs. Dr. Nirmalya Basu & Anr. II (2019) CPJ 300 (NC), it is held that Hospital is Having all diagnostic facilities and competent doctors- Treating doctor had performed his duty to the best of his abilities and with due care and as per standard procedure- Negligence on the part of hospital and treating doctor not proved.

O.P no. 1 is equipped with latest technologies, instruments and OTs, ICU, CCU for providing best treatment to its patients and also employed well qualified team of specialist doctor in various fields and O.P no. 1 Shah Hospital providing medical facilities to the patients with the help of team of expert doctors and Dr. Mahender Singh Shah is director of Shah Hospital, qualified as MBBS having 34 years of experience in profession (ANX-R5 and ANX-R6) and O.P No. 2, Dr. Bikramjeet Singh Shah is qualified as MBBS, MS(Ortho) i.e. Masters of Surgery (Orthopedics) with long experience.(ANX-R7 and ANX-R8).

• The patient was bought to hospital on 13.9.2017 in emergency critical condition due to road side accident caused by his own negligence and carelessness. (Emergency Admission Form ANX-R-15)
• The complainant was examined and proper tests were conducted (Reports of Tests are ANX- R17 to ANX R-19)
• Proper X-Ray was conducted (Bill of X-Ray is ANX-C3).
• PAC (Pre Anesthesia Check-up) was done.
• Patient had fracture of Tibia and Fibula for which knee slab was given and proper treatment was given (Treatment Chart ANX-R-14)

The Complainant after treatment from OP No. 1 & 2 got himself treated in Civil Hospital, Kaithal and there is also a  history of treatment at Sangrur (concealed by complainant and mentioned in ANX-C20) and as well as in PGI, Chandigarh (ANX-C36 and ANX-C37) but in medical record of both Hospitals/Medical reports it has not been mentioned by any doctors that treatment given by O.P no. 1 and 2 is wrong and while providing treatment OPs no.1 and 2 committed any rash and negligence act.

Hon’ble National Commission has held that, “The treating surgeon was an orthopedic surgeon, had performed his duty to the best of his abilities and with due care and as per standard procedure. In our view, the complainant failed to prove negligence on the part of the opposite party hospital and treating doctor.” and placed reliance upon the decision of Hon’ble Supreme Court in Achutrao Haribhau Khodwa & Ors. Versus State of Maharastra & ors.{ IV (2006) CPJ 8 (SC)} wherein Hon’ble Supreme Court Held that-

          “in the nature of medical profession, skills differs from doctor to doctor and more that one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.”

3. No Expert Opinion: No Expert Opinion and report adduced by complainant on record to prove medical negligence on the part of OPs no. 1 and 2. The onus to prove medical negligence strictly lies upon complainant In the case of J.S. Ahluwalia Vs. Fortis Hospital, Fortis Healthcare Ltd. & ors. I (2018) CPJ 178 (Punj.) Hon’ble state forum dismissed the complaint of Complainant for want of non examining any expert witness to prove the assertions of the complaint. (Para 11)
4. Complainant suffered due to his own negligence–Medical Negligence on part of complainant is not proved.

Anil Kumar Gupta Vs. Mukesh Jain(Dr.)II(2008) CPJ 3 (NC)

Complainant is a class IV employee of the municipal council Kaithal (class IV employee includes peon, cleaning staff etc.) and is a chronic smoker as mentioned in medical records/discharge summary which clearly reveals that complainant is having History of Smoking (ANX-C7) and at the time of Discharge it was clearly and strictly advised to the complainant to Stop Smoking and to Stop Alcohol (ANX-R16, page 2). Moreover, in a medical literature, “Delayed Union and Nonunion of Fractures, by Kelvin B. Cleveland” (ANX-R9) it has been clearly stated, smokers have a decrease oxygen level in the cutaneous and subcutaneous tissues, which lead to poor wound healing. In addition, nicotine has been found to decrease vascularization at fracture sites, increasing the chances for the development of osteomyelitis. Although approximately 50% of smokers return to their habit, it is best for healing of bone and soft tissue if they can abstain while being treated for their injury.”  

5. Concealment of Facts- Concealed History of treatment from Sangrur,

Complainant got admitted on 13.9.2017 and discharged on 16.9.2017 and after that came to OPs 1 and 2 for general OPD till November, 2017. As per treatment papers, i.e OPD Slip dated 30.3.2018 available on judicial file as ANX- C20 it reveals that patient Mahinder was also operated/treated at Sangrur and this fact has been concealed from this Hon’ble Commission deliberately and knowingly. Even as per OPD Slip dated 30.3.2018 (ANX-C20) it is also mentioned therein that “complainant was referred to PGI, Chandigarh on request.”

Last OPD Done by O.P was in the month of November, 2017 and thereafter OPD Slip is of dated 30.3.2018 (ANX-C20) thus there is a time lapse/gap of 4 months and treatments/surgery as mention in OPD Slip dated 30.3.2018 was concealed by the complainant. This fact is very material for disposal the matter in issue.

6. In Para no. 8 of complaint, complainant alleged that for second opinion, complainant visited Civil Hospital, Kaithal on 30.3.2018 and after complete checkup the hospital came to conclusion that his injury was not recovered and is going to be dangerous for him, the doctors of Civil Hospital referred him to PGI, Chandigarh but the true and real facts are that, in OPD Slip of Civil Hospital Kaithal dated 30.3.2018, it was clearly mentioned that Complainant got treatment from Sangrur and it was also mentioned that the complainant himself requested the doctors of Civil Hospital Kaithal to Refer him to PGI, Chandigarh. Complainant willfully concealed such material facts from this court and filed this complaint against OPs. 1 and 2.  Treatment record is Annexure-C20.
7. That from the above said facts and case law, it is crystal clear that there is no negligence on the part of OP No. 1 & 2 while treating the patient and there is no deficiency in service on the part of respondents / OP No.1 & 2 in any manner and this complaint has been filed by concealment of true and material facts from this Commission. Hence, complainant is not entitled to seek relief from DCDRC.

12.            From the above-said facts, it is clear that no medical negligence is proved by the complainant.  There has not come even an iota of evidence that wrong procedure has been adopted by Dr. Bikramjeet Singh-respondent No.2, Orthopedic Surgeon in Shah Hospital, Kaithal-respondent No.1.  No expert report is there regarding medical negligence on the part of Dr. Bikramjeet Singh-respondent No.2.  In OPD Card of Civil Hospital, Kaithal, it is mentioned that there is history of treatment in Sangrur also.  Further reliance is placed upon the case law titled as Kusum Sharma Vs. Batra Hospital CPC 2009(1) page 460, wherein it has been held that In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence.  We should not be understood to have held that doctors can never be prosecuted for medical negligence.  As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence.  It is imperative that the doctors must be able to perform their duties with free mind.

VI.    The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.  Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII.  Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.  Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX.    It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X.      The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professional/hospital particular private hospitals or clinics for extracting uncalled for compensation.  Such malicious proceedings deserve to be discarded against the medical practitioners.

XI.    The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients.  The interest and welfare of the patients have to be paramount for the medical professionals.

As such Hon’ble Supreme Court further held that:

“When we apply well settled principles enumerated in the paragraphs in dealing with cases of medical negligence, the conclusion becomes irresistible that the appellants have failed to make out any case of medical negligence against the respondents.”

          Ld. Counsel for the OP No.3 also drawn our attention towards the judgment of Hon’ble National Commission in case titled as N.T.Subramanyam (Dr.) Vs. Dr. B. Krishna Rao 1996(2) CPJ page 233, laid down the following proposition of law:

        “A doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care.  A doctor cannot be held to be negligent merely because in the matter of opinion he made an error of judgment.  When there are two schools of thoughts about the management of a clinic situation, the court cannot place the hallmark of legality upon one of them.

          Hon’ble State Commission In Anup Kumar Vs. Dr. T.K.Biswas ruled:

          “A doctor is required to use the reasonable degree of skill expected of him.  It is prima-facie not negligence if a better & more effective treatment is subsequently available.  There is no sure guarantee of cure in a surgical operation & so the only fact that Dr. Biswas could not cure the complainant & that some other doctor cured him or a further treatment does not ipso facto prove the negligence of Dr. Biswas.”

        Ld. Counsel for the Ops No.1 & 2 has also placed reliance upon the case law cited in 2017(2) CPJ page 138 (SC Haryana) titled as Dr. Madhu Gupta etc. Vs. Medanta, the Medicity, Global Health Private Ltd., wherein it has been held that Medical negligence-Knee replacement-Continuous discharge of fluid despite second surgery-Acute pain and instability in left knee joint-Complaint filed alleging deficiency in service-Complainant has not led evidence of any expert witness in support of her claim-Case of complainant cannot be accepted only on basis of her bald statement-On the other hand, OPs have produced evidence and medical literature to show that due care and professional skill was exercises by treating doctors in conducting operations of the complainant-Doctors were well qualified to do the treatment of the complainant and to contradict; no evidence has been led by the complainant-Hence, negligence is not proved.          

12.            The above-said judgments are fully applicable to the facts of instant case.  Thus, in view of our aforesaid discussion of facts and law given by Hon’ble Apex Court and law given by Hon’ble National Commission (supra), no negligence on the part of respondents No.1 & 2 while treating the patient is proved.  For the aforesaid reasons, complaint is dismissed.  There is no order as to costs.  A copy of said order be sent to the parties free of costs.  File be consigned to record-room after due compliance.     

Announced in open court:

Dt.:28.02.2023.  

                                                                (Dr. Neelima Shangla)

                                                                President.

 

       

                (Suman Rana),          

                Member.

 

Typed by: Sanjay Kumar, S.G.