Punjab

Ludhiana

CC/19/89

Baldev Singh - Complainant(s)

Versus

SPS Hospital - Opp.Party(s)

Harjot Singh adv

08 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 89 dated 08.02.2019.                                                Date of decision: 08.07.2024. 

 

Baldev Singh S/o. Baj Singh, R/o. VPO Badbar, Patti Gagga, The Dhanwala, Distt. Barnala.

                                                                                      ..…Complainant

                                                Versus

1. SPS Hospital, Sherpur Chowk, Ludhiana Through its Managing Director/Medical Superintendent.                            
2. SJS Health Care Limited, Sherpur Chowk, G.T. Road, Ludhiana through its Managing Director/Manager.
3. Dr. Deepinder Singh, Senior Consultant, Neuro and Spine Surgery, SPS Hospital, Sherpur Chowk, Ludhiana.
4. Rupinder Singh Batia, Senior Consultant & Coordinator, Neurology, SPS Hospital, Sherpur Chowk, Ludhiana.
5. Dr. Devinder Pal Singh, Senior Consultant, Neuro & Spine Surgery, SPS Hospital, Sherpur Chowk, Ludhiana.
6. National Insurance Company Ltd., having office at Division II Bansal Complex, Near Dholewal Chowk,     GT Road, Ludhiana-141001.
7. The Oriental Insurance Company Ltd., 4E/14, Azad Bhawan, Jhandewalan, New Delhi-110055.                                                                                                                         …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Maninder Khara, Advocate.

For OP1 and OP2          :         Sh. R.K. Bhandari, Advocate.

For OP3 to OP5             :         Sh. Karam Singh, Advocate.

For OP6                         :         Sh. R.K. Chand, Advocate.

For OP7                         :         Sh. G.S. Kalyan, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant availed services of OP1 to OP5 for his treatment for consideration as he was suffering from pain in chest and back. On 11.05.2016, the complainant consulted OP3 who advised MRI Scanning from Delta Heart Care Centre Pvt. Ltd., Ludhiana. On seeing the MRI Scan report, OP3 and OP4 advised the complainant to undergo operation to cure the ailment with assurance that after operation, the problem will be cured. The complainant stated that as per assurance of OP3 and OP4, he got himself admitted at OP1 SPS Hospital on 14.05.2016 and his operation was performed. The complainant remained admitted till 18.05.2016 but his pain remained persisted even after operation for which he apprised OP3 to OP5 on 18.05.2016 but they discharged the complainant with assurance that the condition of the complainant will improve within 5 to 6 weeks and no further treatment is required.  According to the complainant, he spent Rs.1,17,036/- on his surgery but even then his condition did not improve despite the medicine given by OP3 to OP5. On 28.07.2016, the complainant visited OP3 with same problem and OP3 Dr. Deepinder suggested the complainant for MRI scanning report which was conducted at OP1 hospital by charging Rs.5990/-. The complainant visited OP3 and OP4 for seven months and also visited on 03.08.2016, 16.09.2016, 21.10.2016, 25.12.2017, 09.01.2017 and 25.01.2017 with the same problem and every time OP3 and OP4 prescribed medicines to the complainant but despite taking medicine regularly, the problem did not solve. The complainant again consulted OP3 to OP5 upon which they made false assurance that the problem will be solved within few days. Even his condition did not improve despite taking medicine regularly and he lastly visited the OPs on 30.01.2017 where OP3 and OP4 told him that he needs to undergo surgery again having expenses of Rs.2,50,000/-.

                   The complainant further stated that due to unsatisfactory service of the OPs and due to his bad condition, he consulted the doctors at P.G.I. Chandigarh on 24.02.2017 who after examining the complainant told that his ailment was not treated properly and advised him to take the prescribed medicines on regular basis and now undergoing treatment from P.G.I., Chandigarh. The complainant requested the OPs to refund the amount spent by him, which the OPs promised to refund the same but later on did not refund the amount. The complainant sent letter dated 21.03.2017 following by letters dated 11.04.2017, 30.08.2017 and notice dated 14.11.2017 to the OPs but no reply was given nor the amount was refunded by the OPs. The complainant claimed to have suffered mental pain, agony, harassment etc. due to negligent act, deficiency in service and unfair trade practice on the part of the OPs.  In the end, the complainant has prayed for issuing directions to the OPs to refund Rs.1,17,035/- spent by him on his surgery done by the OPs along with damages of Rs.10,00,000/-.

2.                Upon notice, OP1 and OP2 appeared and filed joint written statement and assailed the complaint by taking preliminary objections on the ground of maintainability; lack of jurisdiction and cause of action; the complaint being barred by limitation etc. OP1 and OP2 stated that the complaint has been filed on baseless, frivolous and misconceived grounds with intention to grab money from them. The complainant has not failed to explain the deficiency or negligence of services while rendering the medical services to him on behalf of OP1 and OP2 through OP3 to OP5 who have vast experience in their respective medical fields and they are well qualified. OP1 and OP2 further stated that the opinion sought by this Commission from PGI, Chandigarh regarding treatment given to the complainant by OP3 to OP5 shows that the complainant was diagnosed as a case of Amolio Chiari Malformation which is a development disorder involving Formaen-Magnum, Decompression and Duraplastic which is a standard surgical procedure adopted by OP3 to OP5. It is further opined that the surgical procedure performed was appropriate, which shows that there was no lapse in medical treatment as well as surgery conducted by OP3 to OP5 to the complainant on behalf of OP1 and OP2.

                   On merits, OP1 and OP2 stated that on 11.05.2016, the  complainant visited the Neurology OPD of Hospital and told about heaviness in right half of trunk for 7 to 8 months. The complainant was thoroughly examined and was advised MRI-Dorsal Spine and Screen of brain and Cervical Spine, which showed Suringo-Hydromyelia, involving spinal cord segments at C5 to D7 level, abnormal descent of carebellar tonsils into upper cervical spinal canal suggestive of Type 1 Chiari Malformation with smooth mild kyphotic deformity of dorsal spine. Surgery of the complainant was performed and was discharged from OP1 hospital in a satisfactory condition. OP1 and OP2 further stated that the complainant visited OP1 hospital on 30.01.2017 i.e. after lapse of 260 days which shows that the complainant did not suffer any problem after surgery for long time which proves that the surgery was performed in a satisfactory condition. It is the complainant who failed to follow up advise given by OP4 regarding consumption of medicines etc.  Even the PGI, Chandigarh did not advise for any subsequent surgery and only prescribed medicines to the complainant. OP1 and OP2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                OP3 filed separate written statement and assailed the complaint by taking preliminary objections on the grounds of maintainability, lack of jurisdiction and cause of action; the complaint being barred by limitation; concealment of facts; the complaint being bad for non-joinder of necessary party etc.

                   Under the column Brief Facts of the Case, OP3 stated that the complainant visited with OP4 in OPD of Neurology Department of OP1 with complaint of heaviness in right half of trunk for 7 to 8 months.
He was examined by OP4 and was advised MRI-Dorsal Spine and Screen of brain and Cervical Spine, which showed Suringo-Hydromyelia, involving spinal cord segments at C5 to D7 level, abnormal descent of carebellar tonsils into upper cervical spinal canal suggestive of Type 1 Chiari Malformation with smooth mild kyphotic deformity of dorsal spine. It was diagnosed that patient’s headache and dysesthetic pain and numbness over upper limbs was due to ACM (Arnold Chiari Malformation and Syrinx). The patient was referred to Neurosurgery OP3 where OP3 examined the patient, reviewed the MRI reports and explained the patient about the disease and need for surgery. It was explained that if untreated, the Syrinx can increase and cause weakness in upper and lower limbs. On 14.05.2016, the patient was admitted in hospital and Sub-Occipital Craniotomy and Duraplasty was done. The surgery was performed on the patient (for ACM & Syrinx) is a well-accepted treatment modality as per medical standards. There was no complication of the surgery and the patient was discharged on 18.05.2016 in a stable condition. According to OP3, he performed decompression surgery to prevent progress of hind brain compression and have actually saved life of the complainant by preventing further progress of hind brain compression. OP3 further stated that in post-operative period, the patient had headache and diffuse pain which is known to occur in some cases and does not indicate negligence or deficiency in service. Patient’s symptoms were managed symptomatically with analgesics and other medicines as per accepted medical standards. The patient visited OP3 in the OPD multiple times for his complaint that he is not feeling relief from the earlier symptoms. Every time, the patient was counseled and explained about his disease and that Syrinx resolves very slowly after the surgery. OP3 further stated that on 28.07.2016, MRI was done which showed sub-occipital bone removal (which confirms the surgery performed). The syrinx has not increased in size. From the MRI report, it is clear that there was no complication of the surgery performed and the surgery was successful and patient was never advised for second surgery. There has been no neurological or symptomatic worsening of the patient on post-surgery period. Even the patient consulted PGI, Chandigarh and no repeat surgery was advised. Further the medical board opinion of PGI, Chandigarh shows that the patient Baldev Singh was diagnosed as a case of Arnold Chiari Malformation which is a development disorder involving Cranio-Vertibral Junction and he underwent Formaen-Magnum Decompression and Duraplasty which is a standard surgical procedure. Further as per opinion, the surgical procedure performed was appropriate.

                   OP3 has defined the medical terms in this para, which is not reproduced here for the sake of brevity.

                   On merits, OP3 reiterated the crux of averments made in the preliminary objections and brief facts of the case. OP3 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                OP4 filed separate written statement and assailed the complaint by taking preliminary objections on the grounds of maintainability, lack of jurisdiction and cause of action; the complaint being barred by limitation; concealment of facts; the complaint being bad for non-joinder of necessary party etc.

                   Under the column Brief Facts of the Case, OP4 stated that the complainant visited OPD of Neurology Department of OP1 with complaint of heaviness in right half of trunk for 7 to 8 months.
He was examined by OP4 and was advised MRI-Dorsal Spine and Screen of brain and Cervical Spine, which showed Suringo-Hydromyelia, involving spinal cord segments at C5 to D7 level, abnormal descent of carebellar tonsils into upper cervical spinal canal suggestive of Type 1 Chiari Malformation with smooth mild kyphotic deformity of dorsal spine. It was diagnosed that patient’s headache and dysesthetic pain and numbness over upper limbs was due to ACM (Arnold Chiari Malformation and Syrinx). OP4 advised the complainant that surgery was required to prevent further progression of his disease and after prescribing medicines, he was referred to OP3 for treatment/surgery where he was under care of OP3. Patient was admitted under OP3 on 14.05.2016 and his surgery was done on 15.05.2016 by OP3 and postoperatively patient consulted OP3 for follow up. Further the medical board opinion of PGI, Chandigarh shows that the patient Baldev Singh was diagnosed as a case of Arnold Chiari Malformation which is a development disorder involving Cranio-Vertibral Junction and he underwent Formaen-Magnum Decompression and Duraplasty which is a standard surgical procedure. Further as per opinion, the surgical procedure performed was appropriate. However, on 30.01.2017 i.e. after 260 days of surgery done by OP3, patient came to OP4 and showed report of MRI spine which showed that there was no complication of surgery. It is the patient who lost to follow up. OP4 further stated that the he never advised for second surgery.

                   On merits, OP4 reiterated the crux of averments made in the preliminary objections and brief facts of the case. OP4 stated that he did not perform the surgery of the complainant and he only examined the patient and prescribed the medicines and referred the patient diligently, prudently with reasonable care and skill. OP4 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

5.                OP5 filed separate written statement and assailed the complaint by taking preliminary objections on the grounds of maintainability, lack of jurisdiction and cause of action; the complaint being barred by limitation; concealment of facts; having no locus standi against OP5; the complaint being an abuse of process of law; the complaint being bad for non-joinder of necessary party etc. OP5 averred that he did not treat the complainant and he is a complete stranger to OP5. Further OP5 is not a party to the present case and has no role in the entire treatment imparted to the complainant and he has been wrongly impleaded as party in this complaint.

                   Under the column Brief Facts of the Case, OP5 stated that the complainant Baldev Singh visited OP3 and OP4 for treatment of his complaints and he was admitted on 14.05.2016 and his surgery was performed and was discharged on 18.05.2016 on OP4. After discharge, the complainant visited OP4 multiple times in OPD for follow up. OP5 further stated that the complainant never visited his for treatment/medical advice for his complaints nor OP5 examined, treated or provided medical advice to the patient. OP4 and OP5 are Neurosurgeons and they provided services at OP1 hospital.

                   On merits, OP5 reiterated the crux of averments made in the preliminary objections. OP5 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

6.                During the proceedings of the complaint, OP3 and OP4 filed separate applications for impleading their insurance companies as party to the complaint. The said applications were allowed vide order dated 15.02.2023.

7.                On issuance of notice, OP6 filed separate written statement and assailed the complaint by taking preliminary objections on the grounds of maintainability, lack of jurisdiction and cause of action; suppression of material facts etc. OP6 stated that proper treatment and care was given to the patient by the hospital in view of medical norms. The complainant has failed to alleged and prove as to what ought to have been done and what has not been done by the hospital in his treatment. OP6 further state that it has no role in the present case as there is no privity of contract between the complainant and OP6. Further the insurance policy is a contract between the insured and the insurer and all the terms and conditions of the policy are biding between the parties. It is the insured, who has not complied with the terms and conditions of the policy for which OP6 is not liable to pay any claim or compensation.                    

                   On merits, OP6 reiterated the crux of averments made in the preliminary objections. OP6 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

8.                OP7 filed separate written statement and assailed the complaint by taking preliminary objections on the grounds of maintainability, lack of jurisdiction and cause of action; suppression of material facts etc. OP7 averred that proper treatment and care was given to the patient by the respondent in view of medical norms and the complainant has failed to allege and prove as what ought to have been done and what has not been done by the respondent in treatment of the complainant. Further OP7 has no role and there is no privity of contract between the complainant and OP7. OP7 has been unnecessarily dragged into the litigation. Further the insurance policy is a contract between the insured and the insurer and all the terms and conditions of the policy are biding between the parties. It is the insured, who has not complied with the terms and conditions of the policy for which OP7 is not liable to pay any claim or compensation.                    

                   On merits, OP7 reiterated the crux of averments made in the preliminary objections. OP7 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

9.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents Ex. C1 to Ex. C77 and closed the evidence.

10.              On the other hand, the counsel for OP1 and OP2 tendered affidavit  Ex. RW1 of Dr. Sunil Katyal, Deputy Director Medical Services of SPS Hospital, Sherpur Chowk, Ludhiana along with documents Ex. RA, Ex. R1 to Ex. R41 to and closed the evidence. 

                   The counsel for OP3 to OP5 tendered affidavit Ex. RC of Dr. Deepinder Singh, Senior Consultant, Neuro Surgeon, SPS Hospitals, Sherpur Chowk, Ludhiana, affidavit Ex. RD of Dr. Rupinder Singh Bhatia, Senior consultant, Neurology, SPS Hospitals, Sherpur Chowk, Ludhiana as well as affidavit Ex. RE of Dr. Devendra Pal Singh, Senior Consultant, Neuro & spine Surgery, SPS Hospitals, Sherpur Chowk, Ludhiana along with documents Ex. RC1 to Ex. RC/10, Ex. RD/1 to Ex. RD5, Ex. R1and closed the evidence.

                   The counsel for OP6 tendered affidavit Ex. RW6/A of Sh. Mohit, Deputy Manager of OP6 along with documents Ex. R1 is the copy of his identity card, Ex. R2 is the copy of insurance policy and closed the evidence.   

                   The counsel for OP7 tendered affidavit Ex. RA of Sh. Yash Paul, Manager of OP7 along with document Ex. R1 is the copy of insurance policy w.e.f. 31.03.2016 to 30.03.2017 and closed the evidence.

11.              We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statements along with affidavits and documents produced on record by the parties.

12.              Admittedly, the complainant approached OP1 hospital due to heaviness in right trunk for 7 to 8 months where was examined in OPD by OP4 and diagnosed as a case of Amolio Chiari Malformation which is a development disorder involving Formaen-Magnum, Decompression and Duraplastic. OP4 referred the complainant to OP4, a Neurosurgeon, who performed surgery of the complainant for ACM & Syrinx. The complainant was discharged from the OP1 hospital in a satisfactory condition vide discharge summary dated 18.05.2016 Ex. R1 and he was advised follow up after 7 days in Ground Floor Neurology OPD Room No.023 with Dr. Deepinder Singh (OP3). The complainant claimed that his condition did not improve despite the surgery and medicine prescribed by OP3 to OP5 and despite his visit with OP3 and OP4 on numerous occasions for seven months. OP3 got conducted MRI scan of the complainant and after obtaining the report, suggested him for further surgery to solve his problem. Due to persistent problem, the complainant approached PGI, Chandigarh for consultation where after examination, the complainant was advised to take prescribed medicines on regular basis for his ailment as the same was not treated properly.

13.              The counsel for the complainant has drawn the attention of this Commission towards preoperative MRI Scan report Ex. C1 dated 11.05.2016, postoperative MRI Scan report Ex. C16 dated 28.07.2016 and Ex. C72  MRI Scan report conducted by PGI, Chandigarh on 14.04.2018 and contended that the postoperative scans are suggestive of the fact that despite surgery, the diagnosed ailment and defect remains the same. Had the doctors of OP1 hospital performed surgery diligently and prudently, there must have been substantial improvement and cure of the disease. On the other hand, the counsel for OP1 to OP5 refuted the contentions of the counsel for the complainant. The counsel for OP1 to OP5 further contended that the complainant was imparted with proper treatment and his surgery was performed by well qualified surgeon. It is the complainant, who did not approach them for follow up treatment even after lapse of 260 days. As such, there is no negligence or deficiency in service on their part.

14.              Now the point of consideration arises whether OP1 to OP5 were negligent in performing surgery of the complainant?

15.              Legally speaking, Medical negligence is a breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill resulting an injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient.

                   A reference can be made to case titled as Jacob Mathew Vs State Of Punjab & Anr. 2005(2) Apex Court Judgments 136 (SC) whereby the Hon’ble Supreme Court of India summed up the law on medical negligence in the following words:-

“48. (1) Negligence is the breach of a duty caused 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a 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 merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

16.              Now adverting to the merits of the case, it is imperative to reproduce the operative part of the discharge summary Ex. R1:-

          “Diagnosis

          Amolio Chiari Malformation

          Operation/Procedure Done:

          Posterior fossa decompression and duraplasty done on14-05-2016.

          Chief Complaints and Brief History:

Patient presented with c/o pain upper abdomen radiating to upper limb associated with numbness & in sensation.

Hospital Course:

Patient presented with above mentioned complaints. Patient was evaluated clinically and investigated thoroughly. MRO dorsal spine was done (OPD basis) which showed syringohydromyelia C5-D7 level, type 1 chiari malformation, kyphosis dorsal spine, post disk – Osteopytic bules C3-C4, C4-C5, C5-C6 with indentation of thecal sac. After PAC clearance patient underwent posterior fossa decompression and duraplasty on 14-05-2016. Patient was managed post operative with I/V fluid, antibiotics (Inj. Monocef), analgesics and other supportive treatment. Post operative stay in the hospital was uneventful. Patient is being discharged in satisfactory condition.”

         

Perusal of discharge summary Ex. R1 shows that the complainant was diagnosed as a case of Amolio Chiari Malformation and he underwent posterior fossa decompression and duraplasty on 14.05.2016 and thereafter, he was discharged on 18.05.2016 in a satisfactory condition. As per Wikipedia, in the medical science Chiari malformation (CM) is a structural defect in the cerebellum, characterized by a downward displacement of one or both cerebellar tonsils through the foramen magnum (the opening at the base of the skull) and surgery of the same is the only treatment to cure the said disease.

                   Further as per healthline.com recovery of CM typically takes 6 to 8 weeks to recover from CM surgery and even some cases it takes more time depending upon the life style and precautions followed by the patient. Yet your specific recovery time may vary, based on the exact type of procedure you had, your age and overall health, and whether you had any complications.

17.              To resolve the controversy, this Commission sought legal opinion from P.G.I., Chandigarh by constituting a Medical Board of Doctors. The PGI, Chandigarh constituted a Board of Doctors consisting of Prof. Sandeep Mohindra, Department of Neurosurgery, Chairpern, Dr. Parvin Salunke, Department of Neurosurgery, Member and Dr. Pranay Mahajan, Department of Hospital Administration, Convener who submitted the report and the same was in original was sent to this Commission. In the said report, the Medical Board has opined as under:-

“The patient Baldev Singh was diagnosed as a case of Arnold Chiari Malformation which is a development disorder involving Cranio-Vertibral Junction. The patient underwent Formaen-Magnum Decompression and Duraplasty which is a standard surgical procedure for this disorder. The surgical procedure performed is appropriate and the medication at follow-ups was also appropriate. Despite the surgery and medications, some patients with this disorder may not improve.”

In order to rebut the opinion of Board of Doctors of PGI, Chandigarh, the complainant did not examine any expert or specialist doctor to substantiate his claim. Even he did not plead or prove the standard operating procedure which have not been allegedly followed by the OP doctors while performing surgery and prescribing medicine for follow up visits of the complainant with the OP hospital. Further there is nothing on record to rebut the contentions of the OPs that the decompression surgery was performed to arrest the further progress of hind brain compression and further prevention has saved the life of the complainant.

18.              The initial onus to prove the deficiency was on the complainant but he failed to discharge the same. In this regard, a reference can be made to case title Bombay Hospital & Medical Research Centre Vs Asha Jaiswal & others I (2022) CPJ 3 (SC) whereby the Hon’ble Supreme Court of India has held in paragraphs 32 and 34 of judgment, which is reproduced as under:-

32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam (2009 SC), this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. This Court held as under:

“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the in- violable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta robanda as well as the facta probantia.”

34. Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others (2021) SCC Online SC 673  held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence.”

 

 

 

19.              Reference can be further made to 2023 LiveLaw (SC) 931 in M.A. Biviji Vs Sunita & Others whereby the Hon’ble Supreme Court of India has made the following observations:-

“…….36. As can be culled out from above, the three essential ingredients in determining an act of medical negligence are: (1.) a duty of care extended to the complainant, (2.) breach of that duty of care, and (3.) resulting damage, injury or harm caused to the complainant attributable to the said breach of duty. However, a medical practitioner will be held liable for negligence only in circumstances when their conduct falls below the standards of a reasonably competent practitioner.

38. To hold a medical practitioner liable for negligence, a higher threshold limit must be met. This is to ensure that these doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible persecution or harassment that they may be subjected to in high-risk medical situations. Therefore, to safeguard these medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by the complainant. The complainant should be able to prove a breach of duty and the subsequent injury being attributable to the aforesaid breach as well, in order to hold a doctor liable for medical negligence. On the other hand, doctors need to establish that they had followed reasonable standards of medical practice.”

 

By applying the ratio of above citations, the complainants have failed to prove medical negligence against the opposite parties conclusively.

20.              As a result of above discussion, the complaint is hereby dismissed being devoid of any merits. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.        

21.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

 

Announced in Open Commission.

Dated:08.07.2024.

Gobind Ram.