DR. SADHNA SHANKER, MEMBER

1.       This appeal has been filed under section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) in challenge to the Order dated 11.02.2013 of the State Commission in complaint no. 253 of 2008 whereby the complaint was partly allowed.

2.       We have heard the learned counsel for the appellant (hereinafter referred to as the ‘hospital’) and the learned counsel for the respondent no. 1 (hereinafter referred to as the ‘complainant’) and perused the record, including inter alia the impugned order dated 11.02.2013 and the memorandum of appeal.

None is present for respondent no. 2- Dr. Brijesh.

3.       The brief facts of the case are that on 12.07.2008, the complainant took her daughter, namely, Neeru, (hereinafter referred to as the ‘patient’) aged about 17 years to the hospital for treatment as her daughter was suffering from fits continuously. The doctors at the hospital decided to conduct MRI test. It is alleged that at the time of MRI test of the patient, the concerned doctors of the hospital had given two injections in the left hand of the patient and immediately after the injection, the left hand had started getting blue and within moments, the whole of the left hand turned blue. There was swelling as well on the whole of the left hand. It is further alleged that when the doctors of the hospital saw that the condition of patient was becoming critical, they referred the patient to Guru Teg Bahadur Hospital (GTBH), Shahdara, Delhi and in turn, the doctors of Guru Teg Bahadur Hospital referred the case to All India Institute of Medical Sciences (AIIMS), New Delhi and the doctors at AIIMS again referred the case to Safdarjung Hospital where upon medical examination, it was found that the veins of the left hand of the patient had been blocked on account of wrong injection administered by the concerned doctors at the hospital. There was swelling over the left hand including the fingers and the fingers started withering and consequently, all the four fingers of the left hand of the patient were amputated.

4.       Alleging medical negligence on the part of the hospital and its doctors, the complainant filed a consumer complaint no. 253 of 2008 before the State Commission.  

5.       The hospital filed its reply stating that the complaint is not maintainable in view of the decision rendered in Martin F. D’Souza vs. Mohd. Ishfaq, paticularly when there is no medical board report showing any negligence on the part of the hospital. It is also stated that the patient was taken to the hospital in emergency on 12.07.2008 and prior to this, the patient had received treatment for control of seizures and abnormal behaviour at some other hospital where the patient was admitted and treated. It is also stated that the nursing staff had mentioned in the Sister Report Book that on 12.07.2008 when the patient was brought in emergency, there was swelling and prick mark in the left hand and slight swelling in the right hand. It is further submitted that the patient received injection in the vein of dorsam of right hand at 4.30 p.m. It is also stated that all precaution was taken at that time to avoid giving injection in the left hand as there was swelling in the left hand. It is further submitted that as the patient had exhibited abnormal behaviour and did not sleep even after injection Lorazepam, injection Haloperidol 10 mg. And injection Phenargan 50 mg intramuscular in glueteal region was given at 5.00 p.m. As the patient continued to behave abnormally, the patient was referred to Duty Medical Officer (DMO), Psychiatry of IHBAS on 13.07.2008 at 9.10 a.m. It is further stated that on 13.07.2008 at 9.50 a.m., the patient was examined by DMO Psychiatry and it was found that besides swelling in the forearm and hand, there was Cyanosis in left index finger and as the Vascular Surgery was not available in the hospital, the patient was referred to  emergency surgery department at Guru Teg Bahadur Hospital at 10.00 a.m. on 13.07.2008. It is further stated that injections Lorazepam and Haloperidl and Promethazine, which is scientific and evidence based treatment modalities, prescribed in standard text book, were given to control the abnormal behaviour of the patient. It is further stated that Cyanosis and subsequent complications in the left hand is the result of the intravenous injection administered elsewhere before coming to the hospital. It is further stated that the doctors and the nurse of the hospital have discharged their duties perfectly in accordance with the medical science and there is no negligence on their parts.

6.       The State Commission, vide its order dated 11.02.2013, allowed the complaint in part and directed the hospital to pay a sum of Rs. 05 lakh as compensation to the complainant.

7.       Being aggrieved by the order dated 11.02.2013, the hospital has filed the instant appeal before this Commission.

8.       The main issue arises in this appeal is as to whether there was deficiency in service on the part of the hospital and its doctors in treating the patient.

9.       Learned counsel for the hospital  has argued that the State Commission has erred in relying upon the statements of Dr. Chintamani and Dr. Lalit, who were examined in criminal case filed by the complainant at pre-summoning stage as the statements made in criminal case cannot be relied in the proceedings pending in the Consumer Commission. He further argued that the patient was brought to the IBHAS from Lok Nayak Jai Prakash Hospital for the simple reason that the family members were not satisfied with the treatment there and prior to her treatment in Lok Nayak Jai Prakash Hospital, she was admitted in Pushpanjali Hospital, Karkardooma, Delhi. He further argued that Dr. Ramteke, Sr. Resident at IHBAS had recorded that the patient was given injection Diazepam and was then brought to hospital and there is also a noting in the Sister Report Book that there was swelling and prick mark in the left hand and slight swelling in right hand of the patient. He further argued that the injection prescribed by the doctor of the hospital were administered in the right hand and no injection was given in the left hand, therefore, there is no deficiency in service on the part of the hospital. He further argued that the complainant has neither filed affidavit of any doctor nor any other evidence to prove that the injection was administered in the left hand of the patient. Therefore, the order of the State Commission dated 11.02.2013 is liable to be set aside and the complaint is liable to be dismissed. In support of his contentions, he placed reliance on the decisions in the following cases:

      1. Bombay Hospital & Medical Research Centre vs. Asha Jaiswal and Ors.                 2021 SCC Online 1149.

      2. Jacob Mathew vs. State of Punjab (2005) 6 SCC 1

      3. Harish Kumar Khurana vs. Joginder Singh and Ors. (2021) 10 SCC 291

      4. Sunil vs. State CRLA 273 of 2009, decided on 05.01.2023 (Delhi High            Court)

10.     Learned counsel for the complainant has argued that the hospital has not been able to file any credible evidence to prove that the injections were not given in left hand of the patient and there was swelling in the left hand prior to administering the injection. He further argued that the prescription of  the doctor in emergency does not find any mention that there was swelling in the left hand of the patient before administering injection and it is only on 13.07.2008 when it was mentioned that there was swelling on the left hand. He further argued that the prescription dated 13.07.2008 of Guru Teg Bahadur Hospital clearly shows that IV injection (LORA) in left hand vein, following that within 1/2 - 1 hour, patient developed swelling in left hand and gradual blackening and discolouration of the hand. He further argued that Dr. Chintamani from Safdarjung Hospital has deposed that receiving injection at IHBAS hospital could have probably contributed to this condition. He further argued that the Dr. Lalit Senior Resident, Surgery, G.T.B. Hospital deposed that ‘the symptoms on the hand of the patient may be due to the injections given in IHBAS hospital and it could have probably contributed to this condition.” He further argued that there is clear deficiency in service on the part of the hospital and the State Commission has passed a well-reasoned order and the appeal is liable to be dismissed.

11.     Firstly, it is apposite to reproduce the relevant portion of the report dated 30.09.2008 of the inquiry committee constituted by IBHAS to inquire a complaint of Smt. Munni W/o Raj Singh to police for wrong treatment given to Kumari Neeru by Dr. Brijesh of IHBAS, which is reproduced as under:

          “Conclusion

After detailed enquiry with all concerned and examination of the case records the Committee came to the following conclusion that prima facie there is no negligence on the part of the treating doctors and the nursing staff of IHBAS. Necessary and immediate referrals and arrangements were made for the transfer of the patient to a facility where patient could be adequately managed. At the time of presentation to IHBAS, the patient had already received intravenous preparations nature of which is not known. The cyanosis of the left index finger and subsequent complications could have either been the consequences of the intravenous preparations administered elsewhere or some underlying thrombotic or vascular disorder”.

12.     From a perusal of the noting of 12.07.2008 of Sister Report Book, it emanates that there was already swelling in the left hand and slight swelling in right hand of the patient. It is seen that the inquiry committee has given a report stating that there was no negligence on the part of the treating doctors and the nursing staff of IHBAS. The inquiry report also reveals that at the time of presentation to the hospital, the patient had already received intravenous preparations nature of which is not known.  The report also reveals that the cyanosis of the left index finger and subsequent complications could have either been the consequence of the intravenous preparations administered elsewhere or some underlying thrombotic or vascular disorder.

13.     As regards the statements given by Dr. Chintamani from Safdarjung Hospital and Dr. Lalit Senior Resident, Surgery, G.T.B. Hospital are concerned, they are only expression of opinion on probability and are not conclusive findings. None of the doctor has given a clear statement that the negligence has been caused due to careless or neglect act on the part of the hospital. Therefore, the statements of the doctors cannot be relied upon.

14.     In so far as the contention that the patient had taken treatment at other hospital prior to her admission in the hospital, the learned counsel for the complainant had stated that she applied for treatment document of Pushpanjali Hospital but the hospital authorities informed the complainant that as per medical Rule regarding retention of medical records, the record is kept for a maximum period of five years and thereafter it is destroyed. The complainant has not denied the fact that the patient had taken the treatment at other hospitals prior to the admission in the hospital. Moreover, the inquiry report also indicates that at the time of presentation to IHBAS, the patient had already received intravenous preparations nature of which is not known. The cyanosis of the left index finger and subsequent complications could have either been the consequences of the intravenous preparations administered elsewhere or some underlying thrombotic or vascular disorder.

15.     Considering the facts and circumstances of the case and the record, including medical record as also the inquiry committee report, we are of the opinion that the patient got treatment at an other hospital prior to her admission in the hospital, therefore, it cannot be said that the swelling has arisen because of injections administered in the appellant  hospital. Therefore, we are of the opinion that there is no negligence on the part of the appellant hospital and therefore the order dated 11.02.2013 of the State Commission is liable to be set aside and the complaint is liable to be dismissed.

16.    In the result, the appeal is allowed and the order dated 11.02.2013 of the State Commission is set aside. Consequently, the complaint is dismissed. All pending I.A.s stand disposed of.