Haryana

StateCommission

CC/16/2015

RANJEET SINGH GODARA AND ANOTHER - Complainant(s)

Versus

UNITECH - Opp.Party(s)

RAHUL DESWAL

21 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No  :          16 of 2015

Date of Institution:     16.02.2015

Date of Decision :      21.12.2016

 

Roshni w/o Sh. Monu Bhasin, Resident of Village Katlaheri, Tehsil and District Karnal.

                                      Complainant

Versus

1.      Kalpana Chawla Government Medical College Hospital, Karnal through its Medical Officer.

2.      Dr. Sonika Kalpana Chawla Government Medical College Hospital, Karnal.

                                      Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

                                                                                                         

Argued by:          Shri Rohit Goswami, Advocate for complainant.

Shri Subhash Goel, Legal Assistant alongwith Shri Ashok Pasricha, Deputy Advocate General for Opposite Party No.1.

Dr. Sonika-Opposite Party No.2 in person with Ms. Meenakshi Gupta, Advocate.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          Roshni-complainant has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (for short ‘the Act, 1986) averring as under:-

2.                The complainant is a simple and rustic village lady. She was pregnant and getting treatment during her pregnancy from Kalpana Chawla Government Medical College Hospital, Karnal-Opposite Party No.1 vide Out Patient Department Card Annexure-A1. On 10^th June, 2014 she suffered labour pains. She was admitted in the above said hospital on 10^th June, 2014 at 12:05 P.M. vide (Annexure-A2). The opposite parties conducted different tests vide report Annexure-A3. The Opposite Party No.2 told the family members of the complainant that the delivery was expected at about 4:00 P.M. The opposite party No.2 asked to arrange the necessary medicines, injections and other medical equipments from the chemist shop. At about 8:00 P.M. it was informed by the hospital staff that the complainant had delivered a female child and both, that is, mother (complainant) and child were healthy. After some time, new born child was brought out of the labour room but the complainant (hereinafter referred to as ‘the patient’) was kept inside for a long time.  The staff of the hospital told that the condition of the patient deteriorated and she was serious due to complication which arose during delivery. It was advised that the patient should be shifted to some other private hospital for better treatment.

3.                Complainant’s husband shifted her to Amritdhara Hospital Chaura Bazar, Karnal where she was treated by Dr.Rajeev Gupta and told that there was continuous bleeding in her uterus as something had been done wrong during pregnancy and excessive bleeding in uterus can endanger the life of the patient. It was further told that to save the life of patient, removal of her uterus was necessary; however after removal of the uterus the patient-complainant would not give birth to any child in future. To save the life of the patient, her husband decided to get the uterus removed.  it was alleged that the complication was caused by the opposite party No.2 while treating the patient in casual manner, which was against the medical norms and further excessive bleeding effected the health of the patient. The uterus of the patient was removed by Dr. Rajiv Gupta. It was alleged that opposite party No.2 was not capable of handling the case of the complainant and had given the treatment in a very casual manner and in an unprofessional manner and against the principles of medical ethics. Complainant’s husband complained to Dr. Manish Paruthi, Senior Medical Officer of Opposite Party No.1 – Hospital but to no effect. Hence complaint before this Commission was filed seeking compensation.  

4.                Opposite Parties contested complaint by filing their respective written submissions. The opposite party No.1 denied the allegations of the complainant raising plea that the complaint was not maintainable because the treatment given to the complainant was free of costs. There was no negligence because the complainant was treated according to the medical ethics and standard procedure employed in case of uterus inversion, which is a life threatening complication of vaginal delivery. All the necessary steps were taken to save the life of the complainant. After ten minutes of the delivery of the patient-complainant at 8:12 P.M., by diagnosing and detecting the complication at 8:23 P.M. till the referral of the patient by two senior well experienced specialists of the field, better treatment was given to the patient. Till the time the patient was referred to the other hospital, the opposite party No.2 tried every aspect to the best of her knowledge and protocol with administration of injection oxytocin, methergin, prostadin, 2 bottles of intravenous fluids ringer lactate, one bottle of colloid, effort to stop bleeding by pressure of gauze, arrangement of 2 units of blood and start of a unit of blood transfusion, constantly monitoring of patient’s blood pressure and pulse rate with constant watch over her condition and side by side consulting the senior specialists for management and their presence, there was no delay in the management and the treatment given to the patient.

5.                The opposite party No.2 in her separate written submission also denied the allegations of the complainant while reiterating the facts stated by the opposite party No.1. It was prayed that the complaint be dismissed.

6.                Complainant has appeared as CW-1 and tendered affidavit Exhibit CW-1/A. She also examined her husband Monu Bhasin as CW-2 besides tendering his affidavit CW-2/A.

7.                The Opposite Parties in their evidence examined Dr. Namrata-OPW-1 and tendered her affidavit Exhibit OPW-1/A, Dr. Munish Pruthi-OPW-2 and his affidavit Exhibit OPW2/A, Dr. Nidhi Sadana-OPW-3; Dr. Sonika-OPW-4.

8.                Counsel for the parties have been heard. File perused.

9.                Learned counsel for the complainant has argued that since the opposite parties were negligent and deficient in giving treatment to the complainant, so the complainant is entitled to the compensation. In support, reference was made to the evidence brought on the record.

10.              On the other hand learned counsel for the opposite parties argued that since the treatment given to the complainant was totally free of costs, so the complainant was not a consumer as defined in Section 2(1)(d) of the Act, 1986.  In support, reference was made to the judgment rendered by Hon’ble Supreme Court in Indian Medical Association versus V.P. Shantha and others, 1996 AIR 550.  

11.              Before discussing the case on merits, the question for consideration is as to whether the complainant falls within the domain of “consumer” or not.

12.              In V.P. Shantha’s case (Supra), Hon’ble Supreme Court while interpreting ‘service’ as defined in Section 2(1)(o) of the Act, 1986 and the exclusionary clause ‘free of charge’ classified three categories, reproduced as under:-

“The other part of exclusionary clause relates to services rendered "free of charge". The medical practitioners, Government hospitals/nursing homes and private hospitals/nursing homes (hereinafter called "doctors and hospitals") broadly fall in three categories:-

i) where services are rendered free of charge to everybody availing the said services.

ii) where charges are required to be paid by everybody availing the services and

iii) where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges.”

 

13.              Further the Hon’ble Supreme Court in V.P. Shantha’s case (Supra) after discussing the law held as under:-

                  

“On the basis of the above discussion we arrive at the following conclusions:

(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.

(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

(3) A 'contract of personal service' has to be distinguished from a 'contract for personal services'. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a 'contract of personal service'. Such service is service rendered under a `contract for personal services' and is not covered by exclusionary clause of the definition of 'service' contained in Section 2(1) (o) of the Act. (4) The expression 'contract of personal service' in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1) (o) of the Act.

(5) Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be "service" as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(6) Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position.

(7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression 'service' as defined in Section 2(1) (o) of the Act.

(8) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.

(9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.

(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.

(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1) (o) of the Act.”

14.              In view of the observations of the Hon’ble Supreme at Sr.No.5,6,9 and 10 in V.P. Shantha’s case (Supra), since the treatment of complainant was totally free without any payment, therefore, the complainant could not be held to be a “consumer”.

15.              Even otherwise considering on merits, as per statement of OPW-1-Dr. Namrata, such complications do arise where inversion of uterus take place and there is heavy bleeding. She has further stated that a team of doctors including herself were unanimously monitoring and were of the view that the patient needs to be referred to higher hospital as the patient required ventilator and ICU management, which was not available at Kalpana Chawla Government Medical College Hospital. Even on being cross-examined, this witness stated that the management of uterus of inversion depends upon haemodynamic status of the patient. As the haemodynamic status of Roshni-complainant was very unstable and the bleeding was profusely continuing from vagina, she first needed blood transfusion and procedure was adopted in order to control the bleeding. She further stated that the hospital itself arranged six units of blood to the patient.  In case there would have been delay in support of ventilator, chances of survival would have been very less.  It was stated that though the patient was referred to higher institute, however, the attendants took her to a private hospital.  Dr.Sonika OPW-4 who conducted the delivery, also deposed that after the delivery there was heavy bleeding per vagina, because of inversion of uterus and she called Gynecologist and referred the patient to Post Graduate Institute of Medical Sciences, Rohtak or Chandigarh; however, she was taken to a private hospital at Karnal. Ambulance was arranged by the hospital and staff also accompanied the patient.

16.              Dr. Nidhi Sadana-OPW-3 also controverted the allegations of the complainant. This witness tendered her affidavit Exhibit OPW3/A deposing that the patient was brought to Amritdhara Hospital, Karnal on 10^th June, 2014 at 09:15 P.M. when she was heavily bleeding and was going in shock. She has further stated in her affidavit that the uterus was coming down per vagina with inversion and therefore the patient was put on ventilator immediately for transfusion of blood and uterus was removed. She further stated in her affidavit that had the uterus not been removed, the patient would have lost her life. She further stated that uterus inversion and bleeding may happen even in normal delivery cases and such the complication may arise in any normal vaginal delivery case. She was cross-examined by the learned counsel for the complainant, when she again affirmed that uterus could not be reverted back manually inspite of the best efforts and therefore there was no other option except to remove the uterus. She even denied the suggestion that if the patient had been brought earlier, she could be treated conservatively. On a specific question being put as to whether there was any negligence on the part of any doctor of Kalpana Chawla Government Medical College Hospital, she stated that there was no negligence on the part of the treating doctors of Kalpana Chawla Government Medical College Hospital.

17.              OPW-2 – Dr. Munish Pruthi, Senior Medical Officer of Kalpana Chawla Government Medical College Hospital, who was a member of the Medical Board of Kalpana Chawla Government Medical College Hospital alongwith Dr. Archana Soni, stated that on inquiry being conducted and recording statements of witnesses,, no negligence was found on the part of the treating doctor- Dr. Sonika or any other doctor. On being cross-examined by the learned counsel for the complainant, witness stated that the complainant and her husband were associated in the inquiry and the entire record of Kalpana Chawla Government Medical College Hospital and of the private hospital besides the version of the complainant and treating doctors were taken into consideration. The report submitted by the Medical Board is Exhibit OP-1 vide which no negligence was found to have been committed by any of the treating doctors.

18.              Though the complainant has appeared as CW-1 stated that at 6:00 P.M. she was taken to labour room and a baby girl was born to her at 8:00 P.M. Ten minutes before the delivery of the child, she was given intravenous line (Glucose). The only allegation levelled was that doctors did not take care of her.

19.              Monu Bhasin-husband of the complainant appeared as CW-2 and tendered his affidavit Exhibit CW-2/A reiterating the version of the complainant.

20.              The complainant has placed on the record the treatment record of Kalpana Chawla Government Medical College Hospital (Exhibit C-1) besides treatment record of Amritdhara Hospital. From the oral statements as well as documentary evidence in the shape of treatment record of Roshni (complainant), the complainant has not been able to prove any negligence on the part of the treating doctor. Even from the opinion of Medical Board constituted by the authorities, no negligence was found to have been committed by any of the opposite parties.  

21.              Medical Negligence has been discussed in several judgments of Hon’ble Supreme Court, National Commission and also of the State Commissions. The Hon’ble Supreme Court held in C. P. Sreekumar (Dr.) vs. S. Ramanujam, (2009) 7 SCC 130, case as follows:-

“…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 proved. It is the obligation of Complainant “to provide the facta probanda as well as the facta probantia”

 

22.              From the entire record and the legal position enunciated above, the complainant has not been able to prove that there was any kind of medical negligence and deficiency in service on the part of the opposite parties. There is nothing on the record to show that the course of action chosen by the treating doctor was not acceptable to the medical profession. The treating doctor performed her duties with a reasonable skill and competence. The complaint is hence dismissed as the complainant has failed to establish that the opposite parties were guilty of medical negligence.

 

Announced: 21.12.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL