The case of the complainant in a nutshell is that owing to tremendous abdominal pain and loose motion with nausea and fever she was taken to Apollo Gleneagles Hospital on 20.01.2019 at about 3.20 p.m. The complainant was treated by the opposite party no.2/Dr. Nishant Agarwal at the Emergency of the Hospital. No medical tests were done. The complainant was provided with some painkiller tablets and antibiotics and the opposite party no.2/Dr. Nishant Agarwal diagnosed that the abdominal pain of the complainant was due to acute gastroenteritis. The said doctor advised the complainant to go home and take rest and to meet him again when she recovers from pain. For the said treatment the opposite party no.1/Apollo Gleneagles Hospital raised bill of Rs.20,000/- (Rupees twenty thousand) only which was duly paid by the complainant. The complainant further alleged that after reaching home her condition deteriorated and she was having acute abdominal pain along with high fever and vomiting including loose motion. The complainant was continuously taking medicine as per advice of opposite party no.2 as she had strong believe that she would be cured shortly with the medication. But the physical condition of the complainant gradually deteriorated and she was compelled to go to another Hospital on 22.01.2019 at 9.30 p.m. On the advice of medical team of Dreamland Nursing Home, USG of abdomen of the complainant was conducted and it revealed that the complainant had acute appendicular lump, mild fatty liver and mild fluid in pelvis amongst other observations. On the same date i.e. 22.01.2019 at about 10.44 p.m. the complainant was shifted to ILS Hospital, Dum Dum for better management and admitted under Dr. Devraj Roy, who after clinical examination of the complainant opined that the complainant was having an appendicular rupture with spread of infection in blood stream and she was required urgent exploratory laparotory and as the complainant was in very critical condition there was chance of fatality during surgery. However, due to proper treatment and medical management, the complainant survived. It is the specific allegation of the complainant that if she had continued with the treatment of opposite party nos. 1 and 2 she could not have survived. According to the complainant the wrong diagnosis of opposite party no.2 resulted in incurrence of huge amount of money for her treatment for which the opposite parties are bound to compensate. In spite of service of notice, the opposite parties did not pay any heed to give compensation to the complainant. Hence this case.
Both opposite party nos.1 and 2 filed written version separately in the case.
The Opposite party no.1 stated that on 20.01.2019, the complainant was treated at emergency ward of the hospital and initial treatment was done at the emergency. The opposite party no.1 denies that the complainant paid a sum of Rs.20,000/- (Rupees twenty thousand) only for her treatment at Emergency Ward of the hospital. It is further stated that the complainant was admitted at Dreamland Nursing Home on 22.01.2019 at 9.30 p.m. So, it manifests that from 20.01.2019 till 9.30 p.m. of 22.01.2019 the condition of the complainant was not so serious. There was no medical negligence on the part of the opposite party no.1 or opposite party no.2. Moreover, the case is not maintainable for want of proper party i.e. Dreamland Nursing Home or ILS hospital Dum Dum. There is no cause of action against the opposite party no.1 to file the case and the same is liable to be rejected.
The opposite party no.2/Dr. Nishant Agarwal in his written statement stated that on 20.01.2020 at around 3.00 p.m., the complainant had come to the emergency of the hospital with a complain of loose stool, vomiting and abdominal pain. On clinical examination of the complainant the vital was found as follows:
- Pulse – 74/minutes
- Peripheral pulse – palpable
- Blood Pressure – 110/80 mm/hg
- Saturation in room air – 99%
- Respiratory rate – 18/minutes
- Breath Sound – Bilaterally vesicular
- Percussion note – Bilaterally resonant
- Body Temperature – 97.4 degrees F
- Glasgo Coma Score – 15/15
- Chest - Clear
The complainant had tenderness in her lower abdomen. Considering the clinical feature, the working diagnosis was acute gastroenteritis. The opposite party no.2 categorically stated that in case of appendicitis, the pain in abdomen is in the Mc. Burney’s point in Right Illiac Foassa region but in this case of the complainant the pain in the abdomen was diffused in the lower abdomen region and was not localised and as such the most probable diagnosis without any further investigation was acute gastroenteritis. However, the working diagnosis is not conclusive one and for confirmatory diagnosis, opposite party no.2 advised admission and USG of abdomen of the complainant.
Considering pain, loose stool and vomiting the following medicines were administered in the hospital/Apollo Gleneagles Hospital.
- Inj. Raciper for Gastritis
- Inj. Zofer for Vomiting
- Inj. Drotin for pain abdomen
- IVF – Normal saline for hydration
Due to administer of the above mentioned medicines, the pain of the complainant subsided and the complainant refused to get admitted and undergo any further test including USG which was advised by opposite party no.2 to rule out any other complications. The complainant as well as her family members refused admission in the hospital of the complainant or to undergo any further investigation and the complainant/patient was discharged against medical advice. It is the further case of the opposite party no.2 that subsequently the complainant had undergone USG which was advised by opposite party no.2 and thereafter appendicitis was detected. Had the complainant undergone USG which was advised on 20.01.2020, the detection of the appendicitis would have been earlier and proper steps could have been taken at Apollo Gleneagles Hospital. The refusal of the complainant and the family members to undergone USG and admission advised by opposite party no.2 and getting the complainant discharged against medical advice was the cause of subsequent complication faced by the complainant. The opposite party no.2 categorically denies that there was any medical negligence on his part in the treatment of the complainant at emergency of Apollo Gleneagles Hospital on 20.01.2020. The opposite party no.2 alleged that the complainant has filed the instant case with a malafide intention to extract money from the opposite parties and the case is liable to be dismissed.
On the basis of rival pleadings of both the parties the following issues are framed.
POINTS FOR DETERMINATION
- Is the complainant a consumer under consumer protection Act, 2019?
- Has the complainant any cause of action to file the case?
- Are the opposite parties liable for medical negligence as alleged?
- Is the complainant entitled to get any relief as claimed for?
DECISIONS WITH REASONES
In order to prove the case, the complainant has filed affidavit in chief and reply to the questionnaires on affidavit.
The photocopies of emergency record/treatment papers of complainant of Apollo Gleneagles Hospital, Kolkata (three pages) are marked document-1 collectively; photocopy of discharged summary of Dreamland Nursing Home is marked document-2; photocopy of ILS Hospital is marked document-3; photocopies of treatment sheets of the complainant in ILS hospital (five pages) are marked document-4 collectively; photocopies of discharged summary of ILS hospital are marked document-5 collectively (three pages); photocopy of advocate’s notice dated 17.12.2019 is marked document-6; photocopy of postal receipt is marked document-6(a) & photocopy of A/D Card is marked document-6(b).
Mr. Indranil Ghosh (General Manager, Legal) of Apollo Multi-speciality Hospitals Ltd. (previously Apollo Gleneagles Hospitals Ltd.) submitted affidavit in chief on behalf of opposite party no.1 and also filed reply to the questionnaire of the complainant on affidavit.
No documents have been filed by opposite party no.1 as evidence.
Opposite party no.2 filed affidavit in chief and also filed reply to the questionnaire of the complainant on affidavit. Opposite party no.2 has also not filed any documentary evidence in this case.
Point nos. 1 – 4
For the sake of brevity and convenience all the above points are taken up together for consideration and discussion.
On perusal of evidence of the complainant as well as materials on record it appears that the complainant was treated at the emergency of Apollo Gleneagles Hospital on 20.01.2019 at about 3.20 p.m. by opposite party no.2 for tremendous pain in her abdomen, loose stools with nausea and fever and she was charged by opposite party no.1/ Apollo Gleneagles Hospital with Rs.20,000/- (Rupees twenty thousand) only for such treatment. Though the complainant claimed that she paid Rs. 20,000/- (Rupees twenty thousand) only for her medical treatment she received at the emergency of opposite party no.1/ Apollo Gleneagles Hospital but no document has been filed by the complainant showing payment of Rs.20,000/- (Rupees twenty thousand) only for her treatment at the emergency of the hospital as alleged. Opposite party no.1 categorically stated that the complainant received treatment at the emergency of the hospital and she was treated by doctor Nishant Agarwal/opposite party no.2 on 20.01.2019 at 3.20 p.m. The complainant was at emergency ward for a very short stay and received initial treatment which was done without receipt of any payment. On scrutiny of the record, it appears that the statement of opposite party no.1 in this regard has not been denied by the complainant during cross examination by way of filing questionnaire.
The burden of proof lies upon the complainant to show that she paid a consideration of Rs.20,000/- (Rupees twenty thousand) only for her treatment at the emergency ward of opposite party no.1/ Apollo Gleneagles Hospital. This onus has not been discharged by the complainant in this case.
Therefore, in absence of any document to show that the complainant has paid any consideration for availing the medical service at the emergency ward of opposite party no.1/ Apollo Gleneagles Hospital, she cannot be considered as a consumer under section 2(7)(ii) of the Consumer Protection Act, 2019.
It is admitted fact that the complainant received initial treatment at the Emergency of opposite party no.1/ Apollo Gleneagles Hospital and treated by opposite party no.2 for abdominal pain, loose stool and vomiting and after clinical examination she was diagnosed as having acute gastroenteritis. According to the opposite party no.2 the complainant was administered with some medicines and advised by him to get admitted in the hospital and to undergo USG of whole abdomen for confirmatory diagnosis but the complainant and her family members refused to adhere the advice of opposite party no.2. It has been further stated by opposite party no.2 that after administer of medicines at the emergency ward, the pain of the complainant subsided and her family member insisted to take discharge from the emergency ward of opposite party no.1/ Apollo Gleneagles Hospital. From document-1 which has been tendered as evidence by complainant herself on affidavit reveals that on 20.01.2019 at about 3.20 p.m. the complainant Tanima Sinha was brought to Apollo Gleneagles Hospital by private conveyance with a complain of loose stools, vomiting and abdominal pain. Her vitals were checked by opposite party no.2 which are noted in document-1. Opposite party no.2 diagnosed the patient having acute gastroenteritis and advised some medicines. The progress report (document-1) further reveals that the complainant on 20.01.2019 at about 4.45 p.m. was found stable after receiving medicines and wanted to go home against medical advice and refused admission. However, it is crystal clear that opposite party no.2 has given written advice to the complainant to do USG of whole abdomen and to get admitted. Therefore, from document-1 (three pages) which has been submitted and relied as evidence on affidavit by the complainant herself clearly shows that the complainant and her family members refused admission and medical advice to undergo USG of whole abdomen and went back home. Document-2 reveals that on 22.01.2019 about 9.30 p.m. she was admitted at Dreamland Nursing Home with a complain of severe pain in the abdomen from 20.01.2019, loose motion 4 – 5 times along with fever, nausea and vomiting. USG was done. The finding of the USG report was acute appendicular lump, mild fatty liver and mild fluid in pelvis. Some medicines were advised by the doctor of Dreamland Nursing Home. Document-3 reveals that the complainant on the same day i.e. 22.01.2019 had been admitted in ILS hospital Dum Dum. The time of admission is not mentioned in document-3 clearly. The time mentioned in the column “time of arrival” had been over written by pen and it is illegible. However, document-3 suggests that the complainant was admitted in ILS hospital on 22.01.2019. It further reveals from document-3 that the case history of the complainant was written as the patient is under acute abdominal pain since 20.01.02019, vomiting profusely since 20.01.2019, fever since 21.01.2019 and the diagnosis was ‘gicepsis’ rapture appendix. She was treated by Dr. Sandip Pramanick in ILS hospital Dum Dum. Dr. Sandip Pramanick has not been cited as a witness in this case by the complainant. However, document-3 reveals that the complainant was having fever since 21.01.2019. Whereas, she was treated at Apollo Gleneagles Hospital on 20.01.2019 and advised by opposite party no.2 to undergo USG of whole abdomen. Had the complainant on 20.01.2019 undergone USG of whole abdomen as per advice of opposite party no.2, she would not have such complications which she had on the subsequent dates. She could have been diagnosed much earlier prior to getting any fever on 21.01.2019.
It is settled principle of law that onus to prove medical negligence lies largely by leading cogent evidence by the complainant. A mere averment in a complaint which is denied by the other side can be by no stretch of imagination said to be cogent evidence by which the case of the complainant can be set to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.
Hon’ble Apex Court in Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and Others observed as follows:
“It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Penal Code, 1860 has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Penal Code give adequate protection to the professionals and particularly medical professionals”.
However in this case neither the complainant has been able to prove that she is a consumer in terms of section 2(7)(ii) of the Consumer Protection Act, 2019 neither she could prove that the opposite party no.1 or opposite party no.2 are liable for any medical negligence while conducting her treatment at the emergency ward of the hospital on 20.01.2019 at about 3.30 p.m. On the other hand it is crystal clear from the evidence of the complainant herself that she and her family members ignored the advice of opposite party no.2 and left the hospital/Apollo Gleneagles Hospital without undergoing USG of her whole abdomen. She herself was negligent in her treatment.
Having considered the discussion made above, we are of the opinion the instant case is not maintainable in law and all the points are decided against the complainant. Therefore, the case fails.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed on contest with cost.
