Haryana

Fatehabad

CC/95/2021

Master Shivaansh - Complainant(s)

Versus

Shakti Neuroscience Centre - Opp.Party(s)

Jitender Thakkar

17 Apr 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FATEHABAD.

                                         Sh.Rajbir Singh, President.                                                   Sh.K.S.Nirania and Smt.Harisha Mehta, Members

 

Complaint Case No.       : 95 of 2021.

Date of Institution           : 30.03.2021.

Date of Decision             : 17.04.2023.

 

Master Shivaansh son of Naveen Kumar through mother/natural guardian Shashi @ Simran wife of Sh.Naveen Kumar resident of Satish Colony, Gali No.5 in front of Gate No.2 Apex School, Fatehabad.

 

……Complainant.

 

Versus

 

 

1. Shakti Neuroscience Centre, Barwala Road, Hisar through its Authorized person/representative.
2. Dr.G.P.Burman DM Neurologist, Shakti Neuroscience Centre, Barwala Road, Hisar.
3. Dr.S.K.Menon, SCF 92, CUEI, Green Square Market, Hisar-125001.
4. United India Insurance Company Limited Approach Road, Uklana Mandi Hisar vide policy No.1125832720P111753936

 

                                                                   ……Opposite Parties.

 

Complaint Under Section 35 of the Consumer Protection Act

 

 

Present:       Sh.Jitender Thakker, Advocate for complainant.

                   Sh.Amit Wadhera, Advocate for Op Nos. 1 & 2.

                   Sh.Kapil Nagpal, Advocate for Op No.3.  

                   Sh.V.K.Mehta, Advocate for Op No.4.

 

 

 

 

ORDER

SH.RAJBIR SINGH, PRESIDENT

 

 

                   The facts of the present case are that on 27.02.2021, the complainant visited Op No.3 for routine medical checkup of her son Master Shivaansh; that Op No.3 after medical examination, declared the child normal but advised BERA TEST (Brainstem Evoked Response Audiomatry test) for finding out the cause of delayed speech, if any; that thereafter, on the reference of Op No.3, the complainant, her husband and Master Shivaansh visited Ops No.1 & 2 on same day; that the complainant paid an amount of Rs.2500/- through electronic mode to Ops No.1 & 2  and thereafter BERA test was got done vide prescription slip dated 27.02.2021; that in the  test it was disclosed/concluded that the child was suffering from 90 % deafness in right ear and 100% deafness in left ear; that thereafter, the complainant alongwith her husband and son again visited Op No.3 alongwith test reports but he (OP No.3) did not utter a single word and kept the complainant and her husband in dark and further misled by simply prescribing a medicine namely Mentat; that at the time of purchasing the medicine, it was disclosed by the medical practioner of the dispensary of Op No.3 that this medicine is only a health supplement and has no concern with deafness of the child ; that due to utter shock and dismay, the complainant and her husband, being not satisfied with the advice and report of Ops No.1 to 3, visited SMS hospital (Sapra Hospital) on the same very day; that after perusal of the said report issued by Ops No.1 & 2, the doctor at Sapra Hospital advised hearing aid and operation of cochlear implant costing 8/9 lacs per ear and further advised to repeat the BERA Test of master Shivaansh; that thereafter the OAE and BERA test were again got conducted on 03.03.2021 at Jindal Hopsital, Hisar, wherein it was declared that Master Shivaansh is having normal hearing and further cleared the position that the Ops No.1 & 2 had conducted the BERA test in unprofessional manner, without taking proper care and caution and further Op Nos.1 to 3 wrongly diagnosed minor Shivaansh; that due to inaction, unprofessional attitude and medical negligency on the part of Ops No.1 to 3 in treating and diagnosing Master Shivaansh and misleading, the complainant and her husband suffered trauma, unprecedented harassment and mental agony besides financial loss. The act and conduct of the Op Nos.1 to 3 is clear cut deficiency in service on their part besides medical negligence and carelessness. Hence, this complaint.

2.                          On notice Ops appeared. Op Nos. 1 & 2 in their joint reply have taken preliminary objections such as concealment of material facts and cause of action etc. It has been further submitted that the complainant has misguided the Hon’ble Commission by mixing two reports of different doctors of different hospitals; that the answering Ops have recommended MRI of Brain with Auditory Cortex but instead of getting the said test done, the complainant kept on roaming in different hospitals; that the complainant has not placed on record reports of the tests conducted on 03.03.2021 at Jindal Hospital, Hisar; that BERA test and OAE tests are screening tests for the localization but cannot give the details of the anatomy or development defect which MRI of Brain with Auditory Cortex can say but the complainant did not get it done; that there is no deficiency in service, professional negligency and unfair trade practice on the part of answering Ops; that in case this Commission found the Ops No.1 & 2 liable for any negligency, in that eventuality, Op No.4 being their insurer is liable to pay the compensation. Other allegations have been controverted and prayer for dismissal of the complaint has been made.

3.                          Op No.3 in its reply has taken preliminary objections such as cause of action, concealment of material facts, estoppal and maintainability etc. It has been further submitted that answering Op had advised the proper medicines after observing reports of Master Shivaansh and gave best treatment as per his knowledge but the complainant has filed the present compliant on wrong and false story. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

4.                          OP No.4 in its written statement has taken more or less the same grounds as submitted by Ops No.1 & 2. It has been further submitted that the complainant has not produced any independent report of medical board to prove the negligency on the part of Ops No.1 & 2; that the complainant did not follow the written recommendation of Ops No.1 & 2 and kept on doing multiple tests without getting MRI Brain done; that the complainant has not produced any reports of tests conducted at NC, Jindal Hospital Hisar; that the Ops No.1 & 2 have not conducted any medical negligency  and have never given any wrong reports and further recommended MRI only. Other contentions of the complaint have been controverted and prayer for dismissal of the complaint has been made.

5.                           In evidence, learned counsel for the complainant has tendered affidavits of Smt.Shashi @ Simran, and her husband Sh.Naveen Kumar as Ex.C1 and Ex.C2 besides documents Annexure C1 to Annexure C13 and closed evidence on behalf of the complainant. On the other hand, learned counsel for the Ops No.1 & 2 tendered affidavit of Dr.G.P.Burman, Ex.RW1/A and documents Annexure R1 to Annexure R5,  learned counsel for the Op No.3 tendered the affidavit of Dr.S.K.Menon Ex.RW3/A and learned counsel for the OP No.4 has tendered affidavit of Sh.Balram, D.M. as Annexure R6 and documents Annexure C7 and Annexure C8. Thereafter, the evidence of the Ops have been closed.

6.                          We have heard learned counsel for the parties besides going through the material available on the case file very carefully.

7.                          Learned counsel for the complainant has argued the Op No.3 has not only diagnosed Master Shivaansh carelessly, without taking due care and caution but also misled the complainant and her husband with regard to report of BERA test which was conducted, on his reference, by Op Nos. 1 & 2 in unprofessional and careless manner wherein Master Shivaansh was declared 90 % deafness in right ear and 100% deafness in left ear.

8.                          Learned counsel for the complainant further argued that due to medical negligence and improper treatment by Ops No.1 to 3, the life of master Shivansh was put at risk due to repeated administration of intoxicating substances for repeating the BERA test and other tests such as MRI etc. conducted from other hospitals on different dates. In support of his contentions, he drew the attention of this Commission towards the report of BERA Test and OAE test (Annexure C7 and Annexure C8) conducted on 03.03.2021 at Jindal Hospital, Hisar. The observations made therein are as under:

       “Bilateral with peak could be obtained at 80dBNHL,   60dBNHL, 40dBNHL, indication of Normal hearing

                            

                             Bilateral T.OAE, Part Indication of Normal Outer                          hair call functioning”

                  

He further drew the attention of this Commission towards the MRI Branch + Auditory Cortex Report (Annexure C9) which was got done on 24.11.2021 at Shah Satnam Ji Specialty Hospital, Sirsa wherein the child was also found normal with remarks no significant abnormality detected in brain parenchyma.

9.                          Learned counsel for the complainant has further argued that due to improper and incorrect medical treatment on the part of Ops No.1 to 3, not only Master Shivaansh but also his parents suffered traumatic experience besides pain, suffering, mental harassment and extra financial burden, therefore, the present complaint may kindly be allowed.

10.                        Per contra, learned counsel for Ops No.1 & 2 has argued that the Ops No.1 & 2 have not made any professional negligency and the BERA test was conducted properly with due care and caution but the complainant without following the recommendation qua getting the MRI Brain with Auditory Cortex done of Master Shivaansh, filed the present complaint and even the complainant has not placed on record the reports of other tests, allegedly stated to have been done at Jindal Hospital, Hisar. It has been further argued that BERA and OAE tests are only screening tests for localization which cannot give the details of the anatomy or development defect which MRI only can display, therefore, in order to reach at any conclusion MRI Brain with Auditory Cortex was necessary but it was never done. Learned counsel for the Op No.3 has argued that the Op No.3 had given proper medicine as per his best knowledge and keeping in view the reports of the test conducted by Ops No.1 & 2. Learned counsel for the Op No.4 argued that the complainant did not follow the written recommendation of Ops No.1 & 2 and kept on doing multiple tests without getting MRI Brain done which was necessary and crucial to clear the picture. It has been further argued that the complainant has not produced any report of tests conducted at NC, Jindal Hospital Hisar, therefore, the Ops No.1 & 2 are not at fault for making any medical negligency.

11.                        Admittedly, the complainant visited the Op No.1 for the first time on 27.02.2021 for routine medical checkup of Master Shivaansh (Annexure C1) and  on his reference further visited Op Nos. 1 & 2 on the same date where BERA test of  Master Shivaansh was got done  (Annexure C3).  It is also established on the case file that the complainant, after collecting the reports of BERA test conducted by Ops No.1 & 2, visited Sapra Hospital (Annexure C4). Perusal of Annexure C4 reveals that the concerned doctor, after observing the report of BERA test conducted by Ops No.1 & 2 on 27.02.2021, advised hearing aid with cochlear implant as Master Shivaansh has been declared 90 % deafness in right ear and 100% deafness in left ear in the said report. The doctor at Sapra Hospital, Hisar further advised for repeating the BERA test. The grievance of the complainant is that due to improper treatment and  wrong reporting made by Ops No.1 to3 and as per the advice of doctor of Sapra Hospital, Hisar, BERA test and OAE test were again got done on the person of Master Shivaansh on 03.03.2021 (Annexure C5, Annexure C7 & Annexure C8) and the perusal of reports clearly shows that Master Shivaansh is having Normal Hearing, therefore, we have no hitch to reach at a conclusion that the contentions put forth by learned counsel for the complainant have weight.  

12.                        Though learned counsels for the Ops No.1, 2 & 4 have repeatedly argued and mentioned in their separate written statements that that BERA and OAE tests are only screening tests for localization which cannot give the details of the anatomy or development defect, therefore, in order to reach at any conclusion and clear the picture MRI Brain with Auditory Cortex was necessary but the complainant has not got it done and further not placed on record any expert report.

13.                        Perusal of case file reveals that the MRI Branch + Auditory Cortex was got done on the person of Master Shivaansh and the report is placed on the case file as Annexure C9. In the this very report, it has been reported that No significant abnormality detected in brain parenchyma,  therefore, the plea of Ops No.1,2 & 4 is not tenable and is hereby rejected and even at this stage, the Ops cannot raise a plea that there is no expert opinion.  

14.                         Further, it is worth-while to mention here that keeping in view the technical nature of the medical profession, negligent acts of omission or commission need to be verified by fellow doctors who hardly ever support the patient. Besides, victims fear that reporting cases of malpractice will deny them treatment in future. Thus, in this skewed doctor-patient relationship it's the duty of the system to protect the latter.   Normally, the liability of a doctor arises not when the patient has suffered any injury/problem but when the injury/problem has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury/problem suffered by a patient. He/she is also liable for those that are a consequence of a breach of his/her duty. Moreover, no expert opinion is required in all medical negligence cases. On this point reliance can be taken from judgment delivered by Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Speciality Hospital& Another” 2010 (2) RCR Civil 161, Whereby in para No. 47, Hon’ble Supreme Court is held that in a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself”. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. Law laid down by the Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Specialty Hospital& Another (supra), wherein it has been mentioned that claim of the complainant cannot be rejected on the ground that the expert witness not examined to prove negligence of doctor –it is not required to have expert evidence in all cases of medical negligence. Negligence means absence of due care and caution. It is a very subjective terminology and varies from fact to fact. In the cases of medical negligence the principle of res ipsa loquitor has been followed. The meaning of this latin maxim means that "things speak for itself". In the present case res ipsa loquitur principle is applied. The mistreatment of a child by a medical professional can be a traumatic experience for both the child and their parents which can lead to a range of negative emotions, including anger, frustration, and helplessness besides harassment and mental agonys.

15.                        Further, it is a settled law that the doctor owes a duty of care to the patient. In the present case the Ops No.1 to 3 had charged from the complainant on account of medical checkup and BERA Test of Master Shivaansh, therefore, not on this account they are accountable to take proper care/diagnose and treat him but being in a noble profession it remains their duty to proper diagnose/treat Master Shivaansh with full competence, skill and degree but unfortunately the Ops No.1 to 3 have not done so which puts a question on their expertise in the field of medical practitioner.  Further, due to negligence, wrong diagnosing  and professional medical negligence of Ops No.1 to 3, Master Shivaansh had to take intoxicating substances number of times unnecessarily resulted into mental agony, harassment, pain and suffering for whole of the family.

16.                        It is proved on the case file that the complainant has visited Sapra Hospital, Hisar,  Jindal Hospital, Hisar and further Shah Satnam JI Specialty Hospital, Sirsa  on different dates for medical treatment and tests which not only caused pain and suffering, mental agony, harassment to the family of complainant but also put financial burden and this all happened due to professional and medical negligency on the part of Ops No.1 to 3, therefore, the complainant is entitled for the compensation on account of mental agony, harassment, wastage of time, transportation charges, physical pain and sufferings due to negligence on the part of Ops No.1 to 3 besides expenditure spent for conducting the various tests and medicines at above mentioned hospitals.

17.                                 In view of the totality of the case and to meet the end of justice we allow the present complaint and direct the Ops No.1 to 3 to pay a compensation of Rs.1 lac on account of professional medical negligency on their part as discussed in above mentioned paragraphs of this order for mental agony, harassment, wastage of time, transportation charges, physical pain, expenditure spent during the various tests, medicines and on other counts etc. The Ops No.1 to 3 are further directed to pay a sum of Rs.11,000/- to the complainant as litigation expenses. It is made clear that the Ops No.1 & 2 would pay half of the awarded amount jointly and rest of the half awarded amount would be borne by the Op No.3. It is further made clear that the Ops No.1 & 2 are insured with Op No.4 and the negligence on their part occurred during the subsistence of the policy issued by Op No.4, therefore, being insurer, OP No.4 is directed to pay the awarded amount i.e. half of the total awarded amount of the share of Ops No.1 & 2, to the complainant. The compliance of the order be made within a period of 45 days failing which this amount would carry 9 % interest from the date of filing of the compliant till its realization. 

18.                        In default of compliance of this order, proceedings against respondents shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. This order be also uploaded forthwith on website of this Commission, as per rules, for perusal of parties herein. File be consigned to the record room after due compliance.     

Announced in open Commission.                                                            Dated: 17.04.2023

 

                                                                                                        

      (K.S.Nirania)                 (Harisha Mehta)                (Rajbir Singh)                            Member                              Member                               President