Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.91/28.03.2017
Surender Singh son of Shri Shish Ram
R/o House No. 14, Bhagat Singh Marg,
Vidya Nagar Bhiwani, Haryana-127021 ...Complainant
Versus
OP1 Sir Ganga Ram City Hospital
A Unit of Conner Institute of Health Care &
Research Center, Pvt. Ltd:, B-1/1, N.E.A.,
Pusa Road
New Delhi - 110060
OP2 Dr. V.P. Sachar,
OP3 Dr. P.K. Aggarwal,
OP4 Dr. Ambuj Garg.
all C/o Sir Ganga Ram City Hospital
A Unit of Conner Institute of Health Care &
Research Center Pvt. Ltd., B-1/1, N.E.A.,
Pusa Road
New Delhi - 110060
OP5 Ganga Ram Hospital,
Sir Ganga Ram City Hospital Marg,
Rajinder Nagar,
New Delhi - 110060
OP6 Dr. Sunita Bhalla,
Consultant Pathology
C/o Sir Ganga Ram Hospital
Sir Ganga Ram City Hospital Marg,
Rajinder Nagar,
New Delhi - 110060
OP7 Max Super Speciality Hospital
(A Unit of Balaji Medical & Diagnostic Research Centre),
through its Authorised Person/Chairman
Regd. Office : 108-A, Indraprastha Extension,
Patparganj, New Delhi-110092.
OP8 Dr. Randeep Singh,
(A Unit of Balaji Medical & Diagnostic Research Centre),
through its Authorised Person/Chairman
Regd. Office : 108-A, Indraprastha Extension,
Patparganj, New Delhi-110092.
OP9 United India Insurance Company Limited
Office at: 4412 Church Road, Bhogal,
New Delhi 110011. ...Opposite Parties
Date of filing: 28.03.2017
Coram: Date of Order: 05.09.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.18)
1.1. (Introduction to case of parties) - The complainant has grievances of deficiency of services and medical negligence against OP1 to OP8 regarding his ailment, wrong diagnosis and treatment by them. He seeks return of expenses charged by them besides compensation of Rs.15,00,000/-, costs of litigation and other relief.
1.2 The OP1 to OP4, OP5 & OP6 and OP7 & OP8 opposed the allegations of complaint that neither there is any medical negligence nor deficiency of services, since all protocol were followed while examining the complainant-patient or evaluations were done and then appropriate consultancy, counseling and course of action. The OP1 to OP4 and OP5 & OP6 also supplement that after appropriate evaluation, the complainant left the hospital against medical advice (LAMA), he never reported back. He is not entitled for any relief.
1.3. The complainant has given details of material dates, diagnosis and nature of treatment, bills paid to highlight his case and grievances. Similarly, the OPs in their respective replies have also given details of pathological reports, its conclusion and the course of action. In the same manner, when case was at evidence stage, these features have been repeated, which were also mentioned in final phase of case. There is one complainant and nine OPs, it is appearing to be appropriate to put the case of each party at one place (as per their joint written statements), for the sake of brevity and clarity. The case of parties will be detailed in paragraphs 2, 3 and 4 (ibid).
1.4. Initially the complainant had filed the complaint against OP1 to OP8. Subsequently, complainant filed an application to implead OP9/Insurer of OP8, who had taken insurance policy to indemnify professional risks. The said application was allowed by Ld. Predecessors by order dated 27.03.2018, consequently, OP9 became party to the complaint. The OP9 filed written statement and also opposed the complaint that it is without disclosure of any cause of action against OP9 and complaint is liable to be dismissed against the OP9.
1.5. Earlier, the complainant had filed a complaint C-254/2016 before Hon’ble State Commission against OP1 to OP6, however, the complaint was dismissed in limine on 09.05.2016, this order was assailed before Hon’ble National Commission in FA. No. 941/2016. The complainant withdrew the appeal as well as the complaint, which was allowed with liberty by order dated 19.08.2016.
There are four written statements (filed by OP1 to OP4; OP5 & OP6, OP7 and OP8). The said OPs in their respective written statements took stand by way of different expressions that in view of dismissal of the complaint by the Hon’ble State Commission as well as withdrawal of the appeal and complaint, the things attained finality, the principle of res-judicata applies and the present complaint is not maintainable. This is the common plea in all the written statements, that is why it is mentioned in the beginning instead of to repeat them, when the case of parties will be discussed.
1.6. (Medical terminology and prescriptions with simple meanings ) - Since, the complainant-patient was hospitalised and he was put to many, tests, investigation, treatment, PET Scan etc. There are many medical terminology mentioned in noting, investigation orders, prescriptions, discharge summary, pharmacy bill etc. Many of them being material and relevant to mention them with its ordinary English meanings. It will make convenient to apprehend the nature of disease, tests, diagnosis, treatment administered as well as to appreciate the rival plea. The same are -
(i) Lymph system - A small bean shaped structure that is part of body's immune system. Lymph glands filters substances that travels through the lymphatic fluid and they contain lymphocytes (i.e. while blood cells) that helps the body to fight infection and disease. There are hundreds of lymph glands through-out the body.
(ii) lymph nodes - Lymph nodes are small, round or bean shaped clusters of cells. Inside lymph nodes are combination of different types of immune system cells. These specialized cells filter your lymphatic fluid as it travels through body and protect the body by destroying invaders.
(iii) lymph nodes biopsy - A procedure in which all or part of lymph is removed and checked under a microscope for signs of infection or disease, such a cancer.
(iv) Non-Hodgkin Lymphoma (NHL)- NHL is a disease, in which cancer cells are formed in lymph system. In other words, NHL is a type of cancer that forms in lymph system. The lymph system is a part of immune system.
(v) NHL (Aggressive Lymphoma) - NHL grows and spreads at different rates and can be indolent or aggressive. Aggressive lymphoma grows and spreads quickly and has signs and not symptoms that can be severe.
(vi) NHL T-Cell are type of lymphocyte that's involved in the killing foreign invaders directly. NHL occurs much less often T-Cell. Most coetaneous T-cells lymphoma grow very slowly and are not life threatening. The treatment for T-cell non-Hodgkin lymphoma includes intense chemotherapy using combination of several drugs, sometimes along-with radiation therapy, in case the lymphoma is confined to one or few area. The commonly are CHOP (i.e. cyclophosphamide, doxorubicin, vincristin, prednisone), or CHOEP (i.e. CHOP + etoposide). T-Cell lymphoma is not curable but treatable.
(vii) Trephine biopsy - A trephine biopsy removes a small piece of bone with the marrow inside. The bone marrow samples are sent to a laboratory for examination under a micro-scope. It is for diagnosis, staging and therapeutic monitoring for lymph-proliferative disorders such as Hodgkin and non-Hodgkin lymphoma.
(viii) mitotic pathology/lymphoma likely - An elevated mitotic index indicates more cell are dividing. In cancer cells, the mitotic index may be elevated compared to normal growth of tissues or cellular repair of the site of an injury.
(ix) mitosis and mitosis typical - Eukaryotic cells use a process, which is called mitosis to divide and create new cells. An atypical mitosis is an abnormal dividing cell. As a result of this abnormal cell division, the newly created cells receive an unequal amount of genetic material (i.e. DNA) and are unable to function normally. In order words, an atypical mitotic figure is defined as anything other than typical form of normal mitosis.
(x) Positive Histology - A positive histology report means that atypical tissues are present or cancer diagnosis.
***
(a) Inj. Endoxan 200 mg - It is used to treat malignant lymphomas (cancers that starts from the lymphatic system of the body ( vessels, fluids and lymphoid tissues) such a Hodgkin's disease, lymphocytic lymphoma and mixed cell type lymphoma..
(b) Inj. Endoxan 1 mg - It is used to treat cancer since it stops or slows down the growth of cancel cell in the body.
(c) Inj. Adriamycin 50 mg - This injection is anti-cancer medication. It functions by suppressing the activity of topoisonmerase enzyme, which is involved in multiplication of DNA of cancer cells. It also forms a harmful chemical, which cause DNA damage. This slows the growth cancer cell and eventually kills them.
(d) Inj. Cytocristin 1mg/ml - It belongs to class of drug, known as anti-cancer, medication, primary used to treat various types of cancer including blood, bone, lung.
(e) Inj. Emset 2mg - it is antiemetic medicine commonly used for control of nausea and vomiting due to certain medical conditions including due to surgery, cancer drug therapy or radiotherapy.
(f) Inj Dexadran 2 ml - It is used in conditions of severe allergy.
(g) Syrup Alkasol -It is used for treating urinary tract infections, painful or difficult urination, kidney stones, urinary acidosis and gout.
(h) Normal Saline - It is used for treatment of electrolyte imbalance due to dehydration and salt depletion. It works by restoring the fluid imbalance and restoring salt and fluid levels in the body.
(i) Tab. Febutaz 40mg - This tablet is medicine used for the treatment of elevated uric acid levels in the blood n conditions such a gouty arthritis.
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2.1. (Case of complainant) –The complaint was filed u/s 12 of the Consumer Protection Act, 1986 for deficiency of services of hazardous to his life and the same are professional misconduct of the OPs. The complainant is 38 years old, he was suffering from high fever, body-ache and weakness since 20.04.2015 and he was under medication of a doctor in the vicinity in Bhiwani.
2.2 The fever and body-ache persisted, then on 01.06.2015, after appointment, he approached OP5/Sir Ganga Ram Hospital (SGR) being a popular hospital having latest technique and most qualified doctors. After his medical check-up, he was advised to be hospitalized and several tests have to be conducted. The complainant consulted his family. On 02.06.2015 he revisited the hospital as advised. He was asked to be hospitalized in OP1/ Sir Ganga Ram City Hospital (SGRC), since beds were not available in OP5/SGR besides OP1 is extended unit of OP5. He was hospitalized in OP1 on 02.06.2015 itself and certain tests were carried besides medication was provided from the pharmacy of OP1, it was done as per advises of visiting doctor namely, OP2, OP3 & OP4. The complainant remained hospitalized for 17 days, each set of tests were repeated on a regular on cyclic basis. The complainant and his family also deposited the demanded amount from time to time.
2.3 However, the complainant and his family members attended him, being worried due to his extreme ill health and exhausted by the endless references of doctors and tests, they were having complete faith in the medical profession considering that doctors are saviors of life, they had no option but to accept the doctor’s opinion.
2.4 It shocked and surprised the complainant on 19.06.2015 when he was informed that he was diagnosed with non-Hodgkin’s lymphoma disease, which is known cancer that originates in while blood cell in human body. The complainant was advised to proceed with chemotherapy session besides more tests immediately, while conveying that the disease to be fatal in case of no treatment is for taken thereof, arrangements for doctors team specializing the said treatment may take some time.
However, the family of the complainant being in deep shock and grief especially there was no improvement in the health of complainant, they thought to have a second opinion. It was also realized that proper facilities were not available immediately, his health was deteriorating, therefore, on 19.06.2015 discharge was taken after paying the remaining charges demanded by them.
2.5 Then complainant approached OP7/Max Super Specialty Hospital on 22.06.2015, where he was given primary medication and treatment as per reports of OP1, without carrying out further investigation or confirmation of those reports. The series of tests were conducted upon the complainant, including the samples taken by OP1, however, it was found to be negative qua non-Hodgkin’s disease or any life threatening disease of similar nature, the test was conducted on the same simple which was taken by the OP1. The samples were forwarded by OP7 to Quest Diagnostic India Private Ltd. (American Diagnostic Agency), in view of the contradictory report, it had also confirmed to be negative for non Hodgkin’s disease/cancer. The complainant’s simple case of sickness was converted into major illness on papers, whereas the complainant and his family were believing the versions of OP1 to OP6, by leaving there all chores for the sake of life of complainant, who is bread earner in the family.
2.6 The OP7 advised certain medicines to the complainant on account of continuous fever of complainant, since report of the sample was to be received from the lab. However, the complainant recovered fully within 15-20 days but he apprehends side effect on account of initial advice of OPs for chemotherapy, which was carried by OP7 & OP8.
The complainant and his family has been harassed and they suffered mental and physical agony on account of negligence committed by OP1 to OP8, just for the sake of making enrichment as well as keeping complainant’s life at peril. The complainant and his family has to rush from Delhi to Bhiwani to Delhi off and on, they suffered a lot and no amount could wash away the haunting experience and trauma caused to them. The complainant claims amount of Rs.4,32,282.85 spent and amount of Rs. 15 lakhs as compensation/damages in lieu of harassment and torture suffered, for which legal notice dated 28.10.2015 was sent to OP1 to OP6 but no result. That is why the complaint. Earlier complaint was filed against OP1 to OP6, which was dismissed by the Hon’ble State Commission and the order was assailed before Hon’ble National Commission and in view of order dated 29.08.2016, the complainant was given the liberty and the present complaint has been filed, by including the name of OP7 & OP8 since they are also negligent for initiating the chemotherapy treatment without examining the complainant.
2.7 The complaint is accompanied with copies of - LAMA discharge summary dated 16.06.2015 issued by OP1, PET CECT Scan report dated 12.06.2015, bone marrow report dated 13.06.2015 by OP5, transfer summary dated 13.06.2015 by OP5, lab investigation report dated 29.06.2015 by OP7, Quest diagnostic report dated 11.07.2015, legal notice dated 28.10.2015 and copies of bills.
3.1 (Case of OP1 to OP4)-The OPs do not dispute the facts mentioned in paragraph 2.2 & 2.3 above. However, they opposed the complaint of other grounds and facts that neither the complaint is maintainable since previous complaint was withdrawn, the complainant left the hospital against legal advice. Further, no chemotherapy was given by the OP1 hospital, therefore, the question of side effect or apprehension of side effect does not arise. The OPs had followed all the protocols while examining, evaluating and managing the complainant during the tenure he was hospitalized. The complainant has past history of abdominal tuberculoses two year back for which he has undergone treatment for nine months. The patient appeared to be chronically ill due to prolong fiver and pain.
3.2. After admission of complainant in OP1 hospital, the condition of the patient was closely monitored on daily basis. The opinion was taken from Senior Consultant Dr. Sudhir Tripathi of Endocrinology department for thyroid disorder. Senior Consultant Dr. Lalit Duggal and Dr. Neeraj Jain of Rheumatology Department were also called upon for joints disease and related problems. Further, opinion of Cardiologist was also taken. All the specialist doctors were jointly making efforts to diagnose and manage the illness of the patient. During hospitalization the tests got done were namely Complete Blood Counts, Biochemical parameters, Urine and Blood Cultures, X-ray chest, ultrasound, thyroid function test, anti-thyroid antibodies and thyroid scan for thyroid disorder, collagen markers, serum ferritin, rheumatoid factor and anti CCP. There was need of repetition of certain tests like TLC, since they were markedly fluctuating during hospitalization with fluctuating fever episodes Other tests like lymph node FNAC was done but it was inconclusive. More test of bone marrow and PET CT Scan were also done. Since the patient had prolonged fever with generalized lymphadenopathy resolving thyroiditis, which does not require neomercazole but complainant was taking it, therefore, it was stopped. He also had sero-negative arthritis causing joint pains for which treatment was given and there was no evidence of tuberculosis found, thus anti-tubercular treatment was stopped. He had history of right hip hemiarthroplasty done in the past for a vascular necrosis.
3.3 A bone marrow aspiration and biopsy vide nos. BM485/15 and S8850/15 were also studied.
These had shown reactive marrow with no specific abnormality. A PET CT scan had shown multiple enlarged lymph nodes at various levels in the body which were FDG avid. Liver and spleen were enlarged with focal FDG avid areas suggestive of pathological condition. The lymph node biopsy was done by Dr. Tarun Mittal, Surgeon & biopsy was sent to histopathology department of OP5 Hospital. As per the report from OP6 the lymph node biopsy was compatible with partial involvement of inguinal lymph node by a Non-Hodgkin's lymphoma T-cell type. This report required evaluation and treatment by specialist of Clinical Hematology. The reference was given to Dr. Nitin Gupta, Clinical Hematology of OP5 Hospital for further management.
He opined that the patient is suffering from fever with generalized lymphadenopathy. Inguinal lymph node on biopsy was T-cell Non-Hodgkin's lymphoma and bone marrow was not involved. He advised chemotherapy and asked for echo-cardiography. He also wrote that the patient and attendants were counseled about disease and treatment with chemotherapy which was to be started after consent from the patient and the relatives but they did not give consent. The relatives were not willing for chemotherapy at that time and took leave against medical advice (LAMA). No chemotherapy was given at SGRC/OP1. After leaving the hospital on 19.06.2015, the patient did not come for any follow up, the OP1 to OP4 have no knowledge of his condition, tests and treatment.
3.4 There was no deficiency of services nor medical negligence on the part of OPs since chemotherapy was not given by the OPs nor the chemotherapy was given by OP7 & OP8 on the advices of OP1. The legal notice is misconceived and it is not tenable. The complaint is without cause of action in favour of complainant and against the OPs, the complaint is false and baseless and it is liable to be dismissed. The complainant is not entitled for any of the reliefs claimed.
3.5 The written statement is accompanied with supporting affidavits of Dr. Sucheta Katoch/AR of OP1, affidavits of OP2, OP3 & OP4 and copies of –order dated 09.05.2016 in C-254/2016 by Hon'ble State Commission, Delhi, order dated 19.08.2016 in FA. No. 941/2016 by Hon'ble National Commission, whole body PET CECT scan dated 12.06.2015, report dated 16.06.2015 of OP5, doctor’s progress report/noting.
4.1 (Case of OP5 and OP6) –The OPs gives introduction about the repute of OP5 being a leading and distinguished hospital of the country. However, the complaint is opposed on all other counts, except the facts matter of record.
4.2 The OP5 & OP6 in their joint written statement does not dispute the facts of paragraph 2.2 & 2.3 of the complaint. The lymph node biopsy was done by Dr. Tarun Mittal, Surgeon and the biopsy was sent to histopathology department of OP5. The OP6 prepared the report according to standard medical protocol, there was no negligence or deficiency of services. There is no cause of action in favour of complainant and against the OPs, the complaint is misconceived and fabricated. The complaint is a fancy litigation.
In Ms. Shanta Ben Mulji Bhai Patel & Ors. Vs. Beach Candy Hospital and Research Centre and Others [1 (2005) CPJ 10 (NC)] it was held that the doctors have performed their duties to the best of their ability with due care and caution; it cannot be held that there is deficiency of service. Simply because something goes wrong, conclusion of deficiency cannot be drawn. In Achutrao Haribhau Khodwa Vs. State & Maharashtra & Ors. 1 (1996) CLT532 (SC) it was held that courts would indeed be slow in attributing negligence on the part of a doctor, if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course or action to be taken by a doctor treating a patient but as long as a doctor acts in a manner, which is acceptable to the medical professional and court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold doctors guilty of negligence.
4.3 The OPs also narrates the course done in the hospital for examining the complainant, which have also been mentioned in paragraph 3.2 & 3.3 (which were also mentioned by OP1 to OP4 in their written statement), they are not repeated here for the sake of brevity.
The patient was suffering from fever of unknown origin for two months. There was microscopic examination of lymph nodes and OPs applied wide range of immunohistochemical markers. These had shown that these atypical cells were T lymphocytes (CD3 positive) and also showed proliferative activity. The slides were discussed with other consultants in the department which is a norm in their department and a diagnosis was made. [Diagnosis: Compatible with partial involvement of inguinal lymph node by a non-Hodgkin's lymphoma T-Cell type]. This is not a clear diagnosis lymphoma. It mean that the histological findings can fit with non Hodgkin's lymphoma in a clinical setting if the clinical and other laboratory finding match with diagnosis. Further ancillary investigations are to be done for confirmation even in case of slightest suspicion. The patient left the hospital. He went to another large reputed hospital in the city. He took the representative block of the biopsy tissue to be examined in that hospital and be treated as required. They reviewed the patient both clinically and all the reports including the biopsy material in the form of block he carried and fresh investigations done. Those doctors agreed to treat him after all the evaluations and taking proper consent from the patient. The report had said that there were atypical T-cells and got another genetic test T-cell gene rearrangement from ONQUEST Laboratory USA which was negative for non-Hodgkin's T-cell lymphoma T-cell type with only atypical T-cells in the lymph node.
The OP6 herself emphasizes that the findings based on the routine H&E stained histology with focal loss of architecture and atypical looking T-Cells and the immunohistochemistry performed were strongly suggestive of Non-Hodgkin's T-cell lymphoma but were not strong enough to make a definitive diagnosis. All the clinicians with similar reports correlate the report with clinical findings and other investigations and gets more investigations whenever needed.
On the basis of this report Clinical Hematology reference was given to Dr. Nitin Gupta of SRG for further management, who opined that the patient is suffering from PUO with generalized lymphadenopathy, Inguinal lymph node on biopsy was T-cell non Hodgkin's lymphoma and bone marrow was not involved. He advised CHOP chemotherapy 6 cycles at interval of 21 days and asked for echocardiography. However, the complainant's relatives were not willing for chemotherapy at that time and took leave; no chemotherapy was given in OP5 hospital. The patient did not report back after 19.06.2015. The complainant asked and he was given slides and cell blocks of tissue of lymph node operated at OP6. The report dated 19.06.2015 (provided by complainant) of Quest India Diagnostic Pvt. Ltd. states negative result and it should be interpreted in the context of other clinical and pathological features and should not be used at the sole criteria for excluding diagnosis of malignancy (lymphoma).; upto 10% of T-cell neoplasm can yield a negative result by this essay. This shows the tests done are not 100% confirmatory and needs to be evaluated of clinical and other pathological features. The OPs also deny that OP7 & OP8 gave the chemotherapy on the advices of OP1. The complaint is liable to be dismissed.
4.4 The written statement is supported by affidavit of Dr. (Brig) Satendra Katoch, Addl. Medical Director of OP5 and affidavit of Dr. Sunita Bhalla/OP6 and accompanied with a copy of reported dated 19.06.2015.
5.1 (Case of OP7 ) –The OP7 also opposed the complaint on the ground that it is barred by res-judicata u/s 11 of CPC as the previous complaint was dismissed followed by withdrawal of appeal and complaint, besides the legal notice filed does not mention name of OP7, as there was no cause of action in favour of complainant and against the OP. No expert opinion is obtained by the complainant to establish his allegations.
5.2. The OP7 also does not dispute many facts already mentioned in paragraphs 2.2 and 2.3 above being matter of record. However, when the complainant-patient had approached OP7, the patient had high grade fever, body-ache, and weaknesses besides 6-7 kg weight loss for the last one and half month. He had already received treatment for these complaints at Bhiwani, he was also admitted in the hospital of OP1 on 02.06.2015. He has anemia and law platelets and was not in a stable medical condition. The investigation was also done by OP1 for such complaints, where he remained hospitalized for 18 days. The investigation carried were suggesting diagnosis of lymphoma while relying upon PET scan dated 12.06.2015 and biopsy dated 13.06.2015 [ the same are repeated in in para 12 of the written statement]. The complainant was advised chemotherapy by Dr. Nitin Gupta at OP1. The entire case history and previous record were analysed by PW8/Dr. Randeep Singh, Consultant, Medical Oncologist. In addition, due diligence care was taken while planning treatment of the complainant.
5.3 There was no reason to not rely on the findings of OP 1 or start the treatment/ medication immediately. Despite it, a matter of procedure and as a measure on abundant precaution, the OP7 conducted test of the complainant.
The case was discussed in the tumor board at OP7. In view of the medical condition of complanant, it was decided by the tumor board, to rely on the biopsy report from a NABL accredited laboratory of a reputed hospital and start the treatment/ medication of the complainant so that his condition does not deteriorate further. The treatment of choice (CHOP Chemotherapy) was initiated in the best interest of the health of complainant. Meanwhile review of the paraffin blocks (Biopsy) of OP 1 was decided to be carried out at OP7. The same was discussed with the complainant and his family. They consented by signing on a consent form to start the chemotherapy on the basis of the reports from OP1. The tests of complete blood count, kidney function, serum calcium and phosphorus were repeated alongwith 2D Echocardiography to assess the fitness of the patient for chemotherapy at OP7 before starting any treatment. In order to do these investigations, the complainant received injection normal Saline, injection Sodium bicarbonate, syrup Alkasol, syrup Digene and tablet Febujet on 22.06.2015, a day prior to chemotherapy, so as to reduce the side effects of chemotherapy. By considering these points with his deteriorating health and in the best interest of the patient at that time, chemotherapy was given as an urgent medical treatment on 23.06.2015 (morning). Thence, the patient was discharged on 23.06.2015. The patient recovered his full health post treatment at Max super specialty hospital in a span of 15-20 days.
The paraffin blocks received from the patient relatives were submitted at OP7 on the evening of 23.06.2015. The final pathology report with immunohistochemistry dated 29.06.2015 opined as viral lymphadenitis with atypical T-zone hyperplasia. Atypical T- zone hyperplasia is a condition, where it is not possible to differentiate between the benign and the malignant nature of a given lymphoid infiltrate. Thus, the possibility lymphoma could not be ruled out. It was re-discussed with the complainant and family to do gene rearrangement studies for confirmation of the diagnosis.
But gene re-arrangement studies are not available in India. Then OP8 coordinated with American Diagnostic Company (Quest Diagnostics) for this test. The turnaround time of this test is 2-3 weeks. It was decided to withhold further chemotherapy and to get cleared this diagnostic dilemma. The gene-rearrangements studies came negative on 11.07.2015, therefore, patient was advised to stop chemotherapy. As gene rearrangement studies are to be interpreted in the context of patient clinical features and pathology report with a caveat in the QUEST DIAGNOSTIC report that 10% of the T-cell lymphomas can be negative for gene rearrangements studies. it was decided to keep patient on close follow up. Therefore, there is no merit in the complaint and it is liable to be dismissed.
5.4 The written statement is supported with the affidavit of Dr. Loveneet Sharma, AR of OP7 and accompanied with copies of - Face sheet, patient admission, discharge summary 23.06.2015, internal assessment sheets, clinical progress notes, nursing admission assessment, papers pertaining to gene-chemotherapy department oncology, nurses daily assessment, clinical chart, intake output chart, pending report status, invoices, in-patient information sheet, discharger slip- discharge summary and Power of attorney in favour of author of written statement.
6.1. (Case of OP8 )- The OP8 also opposes the complaint that it is a false complaint filed by the complainant with the sole motive to unjustly enriching himself. It has been filed on baseless allegations that too upon assumption and presumption without actual scientific proof. Further, it is also appearing from the complaint it has been filed on the basis of apprehension only. There is no deficiency of services.
A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. If the hands be trembling with the dangling fear of facing a prosecution in the event of failure for whatever reason-whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving doses of medicine.
6.2 The facts, features and other narration in the written statement of OP8 is alike written statement of OP7, the paragraph 5 above is referred for the other plea of OP8 and the same is not repeated here. The written statement is supported with the affidavit of OP8.
7.1. (Case of OP9) –The OP9 filed compact written statement by splitting it into preliminary submission, preliminary objections and reply on merits. Briefly, the OP8 was issued a professional indemnity doctor insurance policy no. 042382/46/15/35/00000109 for period 20.04.2015 to 19.04.2016 for indemnity limit of Rs. 20 lakhs. However, unless and until the OP8 is held liable to pay the amount, the OP9 is not liable to indemnify and to pay any amount to the complainant being terms and conditions of policy.
7.2 Otherwise, the complaint is not maintainable since there is no deficiency of services or medical negligence established nor the OP8 was negligent in performing the duties, there is no cause of action in favour of complainant and against OP9. The OP9 has responded all the relevant paragraphs 2 to 16 by general denial together in para-2 of its written statement. There is a request to pass an appropriate order in favour of OP9.
7.3 The written statement is supported affidavit of Sh. Rochit Nanchahal, Assistant Manager and accompanied with copies of - insurance policy and certificate u/s 64 VB of the insurance act 1938.
8.1 (Evidence)-The complainant led his evidence by filing his detailed affidavit supplemented with the documentary record filed with the complaint.
8.2. The OP1/SGRC led evidence through Dr. (Brig) B.S. Rana and other namely OP2, OP3 and OP4 filed their respective affidavits of evidence with the support of documents filed. Similarly OP5/SGR led its evidence through Dr.(Brig.) Satender Katoch, Addl. Director and OP6 led her own evidence.
8.3 The OP7/Max Super Specialty Hospital led its evidence through Dr Sudhakar Manav and OP8 filed his individual affidavit of evidence, which are on the pattern of written statement.
8.4. OP9's Shri Rajani Rajan, Divisional Manager, led evidence on the lines of written statement duly supported with the record of insurance policy and certificate.
9.1 (Final hearing)- The parties were given opportunity to file written arguments. The written arguments have been filed by them, which are blend of pleading and evidence.
9.2. The parties were also given opportunity to make oral submissions. Then Shri Vikrant Arora, Advocate for the complainant; Ms Chakshu Thukral and Shri Kapil Kher, Advocates for OP1 to OP4; Shri Subhash Kumar, Advocate for OP5 and OP6; Shri Rahul Sharma for OP7 and Shri Arvind Upadhaya and Shri Harshit Kiran, Advocates for OP8 made their respective oral submission; Shri Praveen Kumar Mehndiratta, Advocate for OP9 requested to consider the written submissions of OP9 as oral submissions too. The OP1 to OP4 also explained that whole body PET CECT scan dated 12.06.2015 was by the Centre under OP5.
9.3 The OP5 and OP6 also relies upon a case (i) below and OP8 also refers other cases [(ii) and (iii)] below-
(i) Ins Malhotra Vs Dr A Kriplani and othrs Civil Appeal no.1386/2001 , held A simple lack of care, an error of judgment, or an accident, is not proof of negligence on the part of medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence mere because of better alternate course is or method of treatment was also available. A medical practitioner would be liable only where his conduct fell below that of the standard of are reasonably competent practitioner in his field.
(ii) Devarakonda Surya Sesha Mani Vs Care Hospital Institute of Medical Sciences 2021 SCC Online NCDRC 57, while dealing with the medical negligence case, it needs to analyze whether the treating doctors or hospital failed in their reasonable duty of care. Moreover, simply proving suffering of ailment by the patient does not amount to medical negligence
(iii) Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors - 2010 3 SCC 480 Negligence cannot be attributed to a doctor so long as he performs his duties with a reasonable skill and competence.
10.1 (Findings)- The contentions of all the parties are considered, analysed and assessed keeping in view documentary record and other material besides statutory provisions of law, case law presented and precedent. Since there are some objections on the point of maintainability of complaint and non-joinder or mis-joinder of the parties, it needs to decide them first. Thereafter, other aspects will be determined appropriately.
10.2.1. As already stated in sub-paragraph 1.5 (supra) that the OP1 to OP8 have common objection that on the eve of dismissal of previous complaint by Hon'ble State Commission and subsequently withdrawal of appeal/complaint, it attained finality and the complaint is barred by principle of res-judicata or by section 11 of CPC. It is opposed by the complainant that liberty was granted to file the complaint, accordingly it was filed.
10.2.2. It needs to relook at the order dated 19.08.2016 passed by Hon'ble National Commission, New Delhi. It reads as " Order - After some arguments, counsel for the appellant seeks to withdraw the appeal as well as the complaint with liberty to file fresh complaint on the same cause of action before the Consumer Fora, having appropriate pecuniary jurisdiction. Liberty granted, the appeal as well as complaint are dismissed as withdrawn".
It is crystal clear that appeal as well as complaint was dismissed as withdrawn with liberty, as prayed for. It is settled law that appeal is continuation of original complaint. The moment, complaint was permitted to be withdrawn with liberty, the complaint became non-est. There is no decision thereon, therefore, section 11 of CPC or principle of res-judicata would not be applicable. In addition, as per Order XXIII rule 2 r/w rule (1)(3)(b) CPC, a fresh complaint/suit can be instituted since permission was granted, however, it is subject to period of limitation on the date of fresh institution. Therefore, the objections of OPs do not sustain and fresh complaint is maintainable. There is no issue or objection with regard of period of limitation. Accordingly, this contentions is disposed off.
10.3.1. The OP7 and OP8 have serious reservations that as per own case of complainant, the legal notice dated 28.10.2015, was not sent to OP7 and OP8. They have been un-necessarily impleaded in the complaint. But the complainant has juxtaposition plea that they are necessary party, they initiated the CHOP chemotherapy on the complainant without first carrying investigations. In case notice was not sent, it would not demerit the complaint against them. The paragraph 16 of the complaint also narrates these facts against OP7 and OP8.
10.3.2. The circumstances are self-explanatory. Firstly, there is no statutory requirement of sending notice before filing the consumer complaint. Secondly want of sending the notice to OP7 and OP8 but to others, would not waive rights provided under the law. Thirdly, the facts and features determines for impleading a party to the complaint. Fourthly, the law provides (under the guidance of Order I rule 10 CPC) that in the eventuality a person is not impleaded as party in the complaint/plaint, even that person may be impleaded in the pending matter, when so requires. Therefore, the OP7 and OP8 cannot derive any benefit that for want of their names as addressee in the legal notice, they cannot be impleaded as OPs in the complaint. This contention is also disposed off.
10.4.1. The OP1 to OP6 have another objections that there were many doctors, and consultants in the team, while handing and managing the complainant; their names are also mentioned in the LAMA summary. They were not impleaded in the complaint, the complaint suffers from non-joinder of parties. Similarly, names of OP2, OP3 and OP4 are not mentioned in the record specifically, but they were arrayed as OPs. The complaint suffers from mis-joinder of parties. The complaint is liable to be dismissed.
But complainant opposes it, that OP2,OP3 and OP4 are, and are also part of team of doctors, who were treating the complainant. They are involved throughout and they are properly impleaded; even others were at the instructions of these doctors. The complaint is valid and competent.
10.4.2. Its answer is in the contemporary record, it is carrying foot prints of that time including the names of doctors. The discharge summary (LAMA) dated 19.06.2015 mentions names of OP2,OP3 and OP4 as "Consultant In Charge" of Medicine Unit-I, which is repeated in Whole Body Pet CECT Scan, Bone marrow report dated 13.06.2015 and final bill dated 19.06.2015. The discharge summary mentions names of other doctors, who were consulted by OP2,OP3 and OP4 during the course of treatment, as appearing it was their in-house affairs. Therefore, the complaint does not suffer from mis-joinder of OP2, OP3 and OP4 nor non-joinder of others. Accordingly, this issue also disposed off against these OPs.
11. Now issue left is with regard to dispute of medical negligence and of deficiency of services on such count. In order to determine, whether or not there is medical negligence or deficiency of services etc. it is appropriate at this stage to first refer a precedent on the point of medical negligence, test, guidelines and scale to be applied to determine it, ethics involved and so on. It is laid down in precedent 'Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8, 9 and 12; in which the previous precedent Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors AIR 2010 SC 1050 is also referred with its relevant paragraphs are Para 22 & 89] -
[Para 8] "22. Negligence. -Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such à person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient"
[para 9]. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam v. Friem Hospital Management Committee -1957 1WLR 582). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
A situation, thus, cannot be countenanced, which would be a dis-service to the community at large, by making doctors think more of their own safety than of the good of their patients.
[12]. In para 89 of the judgment in Kusum Sharma & Ors. the test had been laid down as under:
"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standard so far reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
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 avail-able, 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 unnecessarily 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 professionals/ hospitals particularly private hospitals or clinics for extracting uncalled for compensation. The 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 professional.
It is relevant to mention since certain tests, guidelines and rule has been laid down in precedents Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8 9 and 12] & Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors AIR 2010 SC 1050, therefore, from that point of view, certain duties are prescribed in the medical profession, they are (i) a duty of care in deciding whether to undertake the case; (ii) a duty of care in deciding what treatment is to be given and (iii) a duty of care in administration of that treatment. On failure to observe them, it will be case of medical negligence. Therefore, it would be appropriate to take the feature of this case one by one from that point of view.
12.1 First of all (i) a duty of care in deciding whether to undertake the case and (ii) a duty of care in deciding what treatment is to be given are to be discussed together, since they involve common discussion and material . The rival plea of the parties are already introduced. For determining these points, the hospitals are namely 'OP1/OP5 Hospitals and OP7 Hospital and their respective doctors namely OP2, OP3, OP4, OP6 and OP8, they dealt the complainant for investigations, tests, evaluation, treatment and management.
12.2. Since, the complainant had consulted on 01.06.2015 because of high grade fever, weight loss etc. then he was hospitalized and examined from 02.06.2015 to 19.06.2015 by OP1 to OP6, the following conclusion are drawn -
(i) The complainant approached to OP5/SGR, but he was hospitalized in OP1/SGRC for want of beds in SGR, however, their doctors examined and evaluated him. The complainant has proved the medical record, which are not disputed. The discharge summary dated 19.06.2015 narrates details inclusive of course in the hospital.
(ii) In the whole body PET CECT Scan dated 12.06.2015 opinion was given, (which has already been referred in paragraph 3.2) that there is possibility of a mitotic pathology (? Lymphoma) appears likely. The bone marrow was also done, its report is of 19.06.2015, concluding that there is no morphological evidence of lymphoma infiltrate in the multiple smears examined (its details also referred in paragraph 3.3 above).
(iii) The lymph node biopsy was also done on 13.06.2015 at OP5/SGR and its report dated 19.06.2015 authored by OP6 is also furnished by OP5 [already detailed in sub-paragraph 4.3 r/w sub-paragraph 3.3. above] by concluding that compatible with partial involvement of inguinal lymph node by a non-Hodgkin's lymphoma T-Cell type. This report alongwith prescription and advices of doctor has been proved by OP1 to OP4 (page 17 to the written statement) and report is also by OP5 and OP6 (Annexure-A to their written statement)
(iv) The OP1 and OP5 and their doctors considered all such materials, reports and assessed them, then came to unequivocal conclusion of diagnosis of Non-Hodgkin's lymphoma (T-cell type) and other ailments of the complainant.
(v) The complainant-patient was advised CHOP chemotherapy 6-cycles (to be repeated every 21 days) for treatment of Non-Hodgkin's lymphoma (T-cell type) but to be with the consent patient. However, the patient was not willing at that time and got his discharge. Accordingly, discharge summary (LAMA) was issued on 19.06.2015. The discharge summary issued also mentions final diagnosis of Non-Hodgkin's lymphoma (T-cell type) and advises for CHOP chemotherapy 6-cycles (to be repeated every 21 days).
12.3 On 22.06.2015 (i.e. after discharge from previous hospital) , the complainant approached OP7, where OP8 took care of him. He was admitted in the OP7 hospital on 22.06.2015 and discharged on 23.06.2015. The following conclusions are cull out -
(a) The defense version of OP7 is that since reports were by NABL laboratories of reputed hospitals, the investigations already done by other OPs and PET Scan, Biopsy report are suggestive of diagnosis of lymphoma. The OP7 and OP8 have conducted their own tests.
(b) The OP7 and OP8 also thought there was no reason not to start the treatment considering previous reports and they also started CHOP therapy by construing to be in the best interest of complainant, it was done on 23.06.2015. The complainant administered injection normal Saline, injection Sodium bicarbonate, syrup Alkasol, syrup Digene and tablet Febujet on 22.06.2015, a day prior to chemotherapy, so as to reduce the side effects of chemotherapy.
© The OP7 has proved discharge summary dated 23.06.2015 (annexed as pages 15-18 to written statement) besides other clinical progress reports in respect of the complainant-patient. He was diagnosed of "non-Hodgkin's lymphoma (T-cell type) Stage-III-B.
(d) The complainant has proved immunohistochemistry (IHC) report dated 29.06.2015 prepared by OP7 (page 19-20 of paper book of complainant), which was on examination of 'left inguinal lymph node excision biopsy', which opined "histology and ICD are suggestive of viral lymphadenitis with atypical T-zone hyperplasia.
Then Gene re-arrangement studies were got done from American Diagnostic company, the studies came negative on 11.07.2015, which has also been proved by the complainant (at page 23-29 of paper book of complainant). Then, it was decided by OP8 to not to do further CHOP chemotherapy vis a vis the complainant recovered in 15-20 days of his fever.
12.4. By reading sub-paragraphs 12.2 and 12.3 above together, the following further conclusions are emerging :-
(A1) The OP1 to OP6 entertained and admitted the complainant considering his fever but to evaluate after certain and examination. To that extent, it has performed its standard duty of care in deciding whether to undertake the case.
(A2) OP1 to OP6 had carried certain tests, investigation, biopsy etc. for which reports were also prepared and they came to final conclusion by diagnosing the complainant a case of "non-Hodgkin's lymphoma (T-cell type)". But later gene re-arrangement studies were negative, which were got done from American Diagnostic company. Thus, final diagnosis opined by OP1 to OP6 was discovered to be wrong, consequently the OP1 to OP6 had wrongly formed opinion of their own studies to be, and to undertake, case of "non-Hodgkin's lymphoma (T-cell type).
(A3) The OP6 emphasizes in her defense that the findings based on the routine H&E stained histology with focal loss of architecture and atypical looking T-Cells and the immunohistochemistry performed were strongly suggestive of Non-Hodgkins T-Cell lymphoma but were not strong enough to make a definitive diagnosis. Further, compatible with partial involvement of inguinal lymph node by a non-Hodgkin's lymphoma T-Cell type]. This is not a clear diagnosis of lymphoma.
However, " this is not a clear diagnosis of lymphoma " is not so stated in the biopsy report dated 19.06.2015 but other conclusive report, besides the other doctors have also considered this report alongwith other clinical report, while coming to final conclusion/opinion of case of "non-Hodgkin's lymphoma (T-cell type)". Moreover, on such opinion, the treatment of course of CHOP chemotherapy was determined and prescribed. But the complainant got him discharged on 19.06.2015.
(B1) The OP7 and OP8 undertook the case of complainant on 22.06.2015 and Face sheet was prepared. These OPs made final conclusion in the face sheet by mentioning "Final Diagnosis - "Non-Hodgkin's lymphoma".
(B2) Similarly in the discharge summary dated 23.06.2015, the OP7 and OP8 finally opined "non-Hodgkin's lymphoma (T-cell type) Stage-IIIB" vis a vis plan for treatment was chemotherapy with CHOP regimen every 21 days x 3 cycles followed by evaluation, since Ist cycle of CHOP chemotherapy was received on 23.06.2015.
(B3) This final diagnosis was done without its own tests and investigation but by considering the previous reports as it is. However, later gene re-arrangement studies were got done from American Diagnostic company, the studies came negative on 11.07.2015.
(B4) The OP7 and OP8 failed to consider its own, while undertaking the case, but adopted the course earlier suggested by the previous hospitals, but for 03 cycles of CHOP chemotherapy instead of 06 cycles. However, after gene re-arrangement studies opined negative, the CHOP chemotherapy was not required, it was decided by OP7 and OP8 to stop it forthwith. But till then earlier session of CHOP Chemotherapy was already done.
(C1) It establishes that OP1 to OP6 when undertaken the case of complainant of fever, the case was entertained it properly but diagnosis concluded by them has discovered/ proved wrong. These OPs also determined course of treatment of CHOP Chemotherapy of every 21 days x 6 cycles, subject to consent of complainant, however, it could not be implemented because of want of consent as well as discharge got done by the complainant. The discharge summary and other progress notes also recommend the same advices. It amounts medical negligence and short comings in the services.
(C2) The OP7 and OP8 diagnosed the ailment on the basis of medical papers and reports received, then determined the treatment and one episode of CHOP Chemotherapy was also performed. They failed to diagnosed it till the gene re-arrangement studies opined negative on the basis of specimen earlier collected. This is lack of duty of care on their in deciding treatment of CHOP Chemotherapy given to the patient. Although, the other medicine prescribed make recovery of fever of the complainant in 15-20 days.
12.5 So far, (iii) a duty of care in administration of that treatment is concerned that it is abundantly clear that OP1 to OP6 determined and advised treatment of CHOP Chemotherapy; 6 cycles (to be repeated every 21 days) but occasion did not arrive to actually administer it because the complainant took discharge. However, OP7 and OP8 implemented treatment of Ist cycle of CHOP chemotherapy on 23.06.2015, which was actually not required had there been proper diagnosis. This amounts to medical negligence and short of services on the part of OP7 and OP8.
12.6. There is also plea on the part of OPs that neither OP1 to OP6 have performed CHOP chemotherapy nor side effects of the chemotherapy has been proved against OPs by the complainant but allegations are mentioned under apprehensions. However, reasons are misplaced, since when chemotherapy is done but not required (as a cause), it will have definite consequences (effects). In addition, the OP7 and OP8 in their versions also say that in order to do these investigations, the complainant received injection normal Saline, injection Sodium bicarbonate, syrup Alkasol, syrup Digene and tablet Febujet on 22.06.2015, a day prior to chemotherapy, so as to reduce the side effects of chemotherapy. The circumstances are speaking themselves.
12.7.1. The OP7 also contends that there is no expert opinion to establish the allegations of complaint, which is vehemently opposed by the complainant on the basis of documents on record.
12.7.2. Each case has its own facts and features. The OP7 and OP8 got examined the tissues from gene re-arrangement studies and after receipt of negative, it was also acted upon by them. It did not remain case for other expert opinion. This contention of OPs carry no weight and it is disposed off.
13.1 In view of detailed discussion, analysis and conclusions in paragraphs 10,11 and 12, it is held that the complainant has proved the circumstances against OP1 to OP4; OP5 and OP6; OP7 and OP8. So far OP9 is concern, it has corresponding contractual obligation to discharge being insurer of OP8 to be within the parameter of policy and sum insured limit.
13.2 The complainant claims return of medical bills paid to the Hospitals. The complainant mentions amount of Rs.4,63,282/- paid to the OP1 to OP6, which were also mentioned in the legal notice. However, the final bill paid amount is of Rs.2,63,282/-. The complainant has also filed receipt of Rs.20,400/- besides bills of Rs.7,200/- to OP7 and OP8.
However, the complainant remained hospitalisd in the hospitals, where tests, investigation, procedure etc. was done. Those tests, investigation, procedure were part of the course to arrive at conclusion, although opinion were not properly drawn. But this does not entitle the complainant for refund of those expenses paid.
13.3. The complainant has also sought compensation of Rs.15,00,000/- against OP1 to OP8 and OP9. The sequences of events depicted in the paragraph 12 (Ibid.) shows the different roles, a different stage, of OP1 to OP8. It has already been held on the basis of
proved circumstances against OP1 to OP8 of medical negligence and short comings in the services. Therefore, the compensation of Rs 15,00,000/- as claimed by complainant against all OP1 to OP8 is reasonable and it allowed in favour of complainant and against OP1 to OP8. The OP5 claim that OP1 is part and parcel or unit of OP5. However, in the final bill issued by OP1 to the complainant, a separate procedure charges of Rs.60,359/- in respect of OP5/SGR are shown. Thus, the purposes of determining the compensation amount, the OP1 and OP5 are to be treated accordingly.
The Hospitals (OP1, OP5 and OP7) are to be treated on parity, each of them is held liable to compensation of Rs.2 lakh and other doctors (OP2, OP3, OP4, OP6 and OP8) are also to be treated on parity, each of them is liable to pay compensation of Rs.1,80,000/- to the complainant.
13.4. The complainant has also claimed costs of litigation, but without quantifying it, therefore, considering set of circumstances, cost of litigation is also determined in favour of complainant and against the OP1 as Rs.10,000/-; Rs.15,000/- against OP2 to OP4; Rs.10,000/- against OP5 and Rs.5,000/- against OP6; Rs.10,000/- against OP7 and Rs.5,000/- against OP8.
14.1 So, the complaint is allowed in favour of complainant and against the OPs in the following manner while directing -
(i) OP1 to pay compensation of Rs.2,00,000/- and OP2, OP3 and OP4 to pay compensation of Rs.1.80,000/- each to the complainant;
(ii) OP5 to pay compensation of Rs.2,00,000/- and OP6 to pay compensation of Rs.1.80,000/- to the complainant;
(iii) OP7 to pay compensation of Rs.2,00,000/- and OP8 to pay compensation of Rs.1.80,000/- to the complainant.
(iv) OP1 to pay cost of Rs.10,000/- but OP2, OP3 and OP4 to pay cost of Rs.5,000/- each to the complainant;
(v) OP5 to pay cost of Rs.10,000/- but OP6 to pay cost of Rs.5,000/- to the complainant and
(vi) OP7 to pay cost of Rs.10,000/- but OP8 to pay cost of Rs.5,000/- to the complainant.
As appearing from the record, the OP2, OP3 and OP4 are associated with, or otherwise they are, under the OP1/Hospital, therefore, OP1 will pay the amount which is payable by OP2,OP3 and OP4. Similarly, OP6 is associated with, or otherwise is under, the OP5/Hospital, therefore, OP5 will pay the amount which is payable by OP6. On the same pattern, OP8 is associated with, or otherwise is under, the OP7/Hospital besides he is insured with OP9/Insurer, therefore, OP7 or OP9 will pay the amount, which is payable by OP8.
The OPs are also directed to pay the amounts to the complainant within 45 days from the date of this Final order. In case amounts are not paid within 45 days, then amount of compensation will be payable with interest to be at the rate of 6% pa from the date of complaint till realisation of amount. The OPs are at liberty to deposit the amounts by valid instruments in the Registry of this Commission in the name of complainant.
14.2 The complaint against OP9 is also disposed off accordingly.
15. Announced on this 5th September 2024 [भाद्र 14, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[ijs-114]
