State Consumer Disputes Redressal Commission
Jatinder Juneja vs Babita & Anr. on 8 October, 2024
FA/327/2017 DOD: 08.10.2024
DR. JATINDER JUNEJA VS MS. BABITA AND ANR
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 13.06.2017
Date of Hearing: 04.07.2024
Date of Decision: 08.10.2024
FIRST APPEAL NO. 327/2017
IN THE MATTER OF
DR. JATINDER JUNEJA,
NATIONAL INSTITUTE OF ARTHRITIS
E-5, BALI NAGAR, NEW DELHI-110005
(Through Mr. K.G.Sharma & S.K.Roy, Advocates )
.....Appellant
Versus
1. MS.BABITA
48-C, DDA FLATS
GULABI BAGH, DELHI-110007
(Through Mr. Jalaj Aggrawal,, Advocate )
..........Respondent
2. NATIONAL INSURANCE COMPANY LTD
8C-3, PUJA HOUSE, FIRST FLOOR
KARAMPURA, NEW DELHI-110015
(Through Ms. Geeta Malhotra, Advocate )
......Performa Respondent
DISMISSED PAGE 1 OF 22
FA/327/2017 DOD: 08.10.2024
DR. JATINDER JUNEJA VS MS. BABITA AND ANR
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. K.G. Sharma, counsel for appellant appeared on VC.
Mr. Jalaj Agarwal (Ph. No. 9717124017) and Mr. Ravi
Mittal, counsel for respondent no.1.
Ms. Geeta Malhotra (Enrl. No. D/822/2005, Ph. No.
9810766150), counsel for respondent no.2
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The brief facts necessary for the adjudication of the present appeal as per the District Commission record are :
"Ms. Babita named above has filed the present Consumer Complaint under Section 12 of the Consumer Protection Act hereinafter referred as the act against Dr. Jatinder juneja and another herein in the opposite parties for directions to the opposite parties to pay a sum of Rs.10,00,000/- as compensation on account of unfair trade practice, deficiency in service and medical negligence with interest @18% per annum from filing the complaint till actual realization of the amount as well as litigation expenses.
The brief relevant facts necessary for disposal of the present complaint as stated are that the complainant was suffering from severe back pain since 29.03.2007. Therefore, she contacted the opposite party no.1 for treatment. The opposite party no.1 got various tests such as ESR, blood sugar, blood Urea, LE Cell Phenomena, Serum uric acid, C-reactive proteins, zone ebb index, DISMISSED PAGE 2 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR Glasgow Arthritic score, serum calcium, platelet count, serum, C.P.K and serum alkaline phosphatase etc. done and as per the test reports and diagnosis of the opposite party no.1 she was suffering from slip disc. The opposite party no.1 gave treatment as per the diagnosis and reports. He gave medicines for back pain. That when the complainant was not getting any relief and her pain was increasing day by day the opposite party gave traction (pull the complainant through machines). But she did not get any relief and her condition became bad to worst. The opposite party no.1 always told the complainant that she will be cured within 6-7 months. But after one month when her condition become more critical and the opposite party no.1 did not pay any attention, the complainant visited Sir Ganga Ram Hospital, New Delhi. Where on advise of doctor she conducted MRI and in the MRI report it was shown that there was Bone Tuberculosis and pott spine in her L-1 and L-2. The condition of the complainant became serious. She remained completely bed ridden for about two years continuously. Which happened due to wrong diagnosis and test reports of the opposite party no.1. She suffered mentally, physically and financially. She had to spend more than Rs.9,00,000/- on her treatment She has not still fully recovered. Therefore, there is unfair trade practice, deficiency in service and medical negligence on the part of the opposite party no.1. She sent a legal notice to the opposite party no.1 to pay Rs10,00,000/- as compensation. But to no effect. Hence, the present complaint for directions to the opposite parties to pay Rs.10,00,000/- with interest @18% per annum from filing the complaint till actual DISMISSED PAGE 3 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR realization of the amount on account of unfair trade practice, deficiency in service and medical negligence on the part of the opposite party and litigation expenses.
Notices of the complaint were sent to the opposite parties. The opposite party no.1 filed reply while contesting the complaint and raising preliminary objections that the complaint is misconceived, groundless, frivolous, vexatious and scurrilous and unsustainable in the eyes of law, there is no specific, scientific and justified allegation of negligence and deficiency in service. The complaint is not supported by any medical expert opinion and allegations are without any basis and cause of action, complaint is false and frivolous, non- joinder of necessary party, the complaint is flagrant abuse of process of law and jurisdiction and prayed for dismissal of the complaint.
However, on merits the opposite party no.1 asserted that the complainant on 29.03.2007 approached the opposite party no.1 while suffering from lower back pain for 15 days and injections abscessin gluteal region. She also gave history of pain after slipping from and having lunge for support side ways to prevent her from fall. She had taken treatment from her family doctor. Who treated her with injections and one of the injection had developed into an abscess in her gluteal region. She was advised medicines, bed rest and complete blood test. On second visit on 04.04.2007 it was explained to the complainant that test reports revealed presence esence of a chr inflammatory lesion in her spine. This was most likely tubercular in nature since her ESR, CRPs were high. Therefore, she was further advised for getting an MRI done DISMISSED PAGE 4 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR soon to aid in the diagnosis and start a proper treatment in the required direction. But the complaint was reluctant and tried to delay in getting MRI on one or the other pretext and that she has to discuss the matter first with her husband. Whereas at the time of third visit husband of the complainant instead of the complainant visited the opposite party no.1 with prescription and informed that the patient had stopped antibiotic for abscess since she had consulted a surgeon, who had taken her treatment for the abscess. The complainant's backache was much better. The opposite party no.1 advised husband of the complainant that MRI was must. That the opposite party no.1 during fourth visit of the complainant on 23.04.2007 examined her and advised her getting an MRI done soon to start the treatment in the right direction at the earliest to avoid any further complication. But the complainant tried to delay the MRI done. But on persistent persuasion of the opposite party no.1 she was convinced and wished the opposite party no.1 to take appointment for MRI from reputed MRI centre. The opposite party no.1 took an appointment for complainant's MRI on her behalf from a reputed MRI center. She was duly informed. Later on the opposite party no.1 came to know that the complainant visited Sir Ganga Ram Hospital. Where MRI revealed that there was a bone tuberculosis and Pott spine in her L-1 and L-2. Which later became more severe and she had to remain completely bed ridden for about two years. The opposite party no.1 is a qualified and reputed doctor with a practicing experience of more than 25 years. He has done & obtained degrees in MBBS in 1981, MD in 1997 and MD Rheumatology also. He DISMISSED PAGE 5 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR maintains highest standard of profession. He properly examined, investigated, diagnosed and treated the complainant as per prescribed norms of general practice. He did not deviate from normally prescribed line of treatment All other allegations of the complaint are vehemently denied and once again prayed for dismissal of the complaint.
On application of Dr. jitender juneja opposite party no.1, the with National Insurance Company Ltd. was impleaded as opposite party, по.2.
Notice of the complaint was sent to the opposite party no.2. The opposite party no.2 filed reply admitting that the opposite party no has issued insurance policy no.368300/46/06/8700000277 fin period from 18.02.2007 to 17.02.2008 in favour of the opposite party her no.1 for Rs. 10,00,000/- only. The opposite party no.2 is not a prope and necessary party. There is no privity of contract between the Complainant and Opposite party no.2. The primary liability, if any towards the complainant is of the insured alone and the opposite partyno.2 is liable to indemnify the insured later on and prayed for dismissal of the complaint.
The complainant filed rejoinder to the reply of the opposite party no.1 while controverting stand of the opposite party no.1 and reiterating her stand taken in the complaint. When Ms. Babita complainant was asked to lead evidence, she tendered her affidavit in evidence narrating facts of the complaint. The complainant has also relied upon copy of prescription slip of the opposite party dated 29.03.2007, copy of blood analysis report DISMISSED PAGE 6 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR dated 29.03.2007, copy of pathological reports by Classic Diagnostic Lab, copy of liver function test by Modern C.T. Scan and Diagnostic Centre, copy of private OPD slip of Sir Ganga Ram Hospital dated 18.05.2007, copy of discharge summary by city hospital alongwith bills and receipts, copy of OPD slip of AIIMS, New Delhi, copy of report of MRI dated 14.06.2007, copy of MRI reports alongwith photograph and bills by Focus Imaging and Research Centre Pvt. Ltd., copy of report by Anand Imaging Centre, copy of bills of chemists, copy of legal notice dated 12.03.2009 and copy of reply dated 20.03.2009 of legal notice. When Dr. Jitender Juneja the opposite party no.l was asked t lead evidence in support of his version, he tendered in evidence his affidavit narrating facts of the reply. He also tendered in evidence affidavit of Shri Sanjeev Pandey, who deposed that Dr. Juneja take appointment for MRI examination of Ms. Babita. The opposite party no.1 in support of his defense relied upon Annexure R-1 copy of insurance policy, Annexure R-2 copy of degree, copy of certificate of registration of Punjab Medical Council and copy of certificate of registration of Delhi Medical Council and Annexure-A copy of medical literature. It is worth mentioning here that opinion from Medical Board was taken from R.M.L. Hospital, New Delhi. The Board opined as under:-
"On perusal of available treatment records. It is observed tha patient was treated symptomatically for backache. However, radiological examination could have been done if patient was no getting relief during a period of one month."
DISMISSED PAGE 7 OF 22
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DR. JATINDER JUNEJA VS MS. BABITA AND ANR
2. The District Commission after taking into consideration the material on record, passed the following order dated 06.05.2017:
"After going through the complaint, replies of the opposite parties, rejoinder to the reply of the opposite party no.1, documents and affidavits filed by the parties, medical board opinion it is common case of the parties that the complainant was suffering frons tow back pain. She contacted the opposite party no.1 on 29.03.2007 for her treatment. The opposite party no.1 after examination and tests opined injection abscess in gluteal region of the complainant and back pain. The complainant visited the opposite paty no.1 on 29.03.2007, 04.04.2007 and 23.04.2007. Complainant's husband with all record and prescription also visited the opposite party no.1 between 04.04.2007 and 23.04.2007. The complainant took treatment from the opposite party no.1 for about one month. But when the complainant did not get any relief and her condition deteriorated. She visited Sir Ganga Ram Hospital, New Delhi. The doctor at Sir Ganga Ram Hospital opined for MRI. ON receipt of MRI report they further opined bone tuberculosis and pott spine in her L-1 and L-2. She took treatment for tuberculosis and pott spine for about two years.
The case of the complainant is that there is unfair trade practice, deficiency in service and medical negligence on the part of the opposite party no.1. The condition of the complainant was worsening but the opposite party no.1 did not advise for MRI. Therefore, she had to suffer for about two years DISMISSED PAGE 8 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR and spent huge amount on her treatment. She could not carry her profession.
Whereas the case of the opposite party no.1 is that he asked the complainant for MRI. The complainant was reluctant. The complainant after persistent persuasion by the opposite party no.1 agreed for MRI and asked the opposite party no.1 for her appointment for MRI in a reputed MRI institute. But the complainant instead of going for MRI visited Sir Ganga Ram Hospital. Where after MRI she was diagnosed tuberculosis and pott spine in her L-1 and 1-2 Therefore, there is no unfair trade practice, medical negligence and deficiency in service on the part of the opposite party no.1.
It is worth mentioning here that the medical board has opined that a radiological examination could have been done if patient was not getting relief during a period of one month. The opposite party no.1 has also admitted that from the test's reports revealed presence of chronic inflammatory lesion in her spine. This was most likely tubercular in nature since her ES, CRP's were high. Therefore, from prudent and qualified medical practitioner MRI test of the complainant was required. The opposite party no.1 has also asserted that he asked the complainant for MRI test. Therefore, the burden to prove that the opposite party no.1 advised for MRI is on the opposite party no.1.
The opposite party no.1 to prove that the complainant was advised for MRI has tendered his affidavit narrating that DISMISSED PAGE 9 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR the opposite party no.1 asked the complainant for MRI Test with a reputed MRI Centre.
On asking of the complainant, he booked a slot with MRI Centre. The opposite party no. 1 in support of his version has also tendered in evidence affidavit of Shin Sanjeev Pandey. He has deposed that on 04.04.2007 Dr. Jatinder Juneja asked for a slot for MRI examination of Ms. Babita. But Ms. Babita never turned up for MRI test. The version of the opposite party is rebutted by Smt. Babita complainant.
The burden to prove that the opposite party no.1 advised for MRI by the complainant is on the opposite party no.1. But there is no cogent and convincing evidence on behalf of the opposite party no.1, to prove that he advised for MRI test by the complainant except affidavits of Dr. Jatinder Juneja, the opposite party no.1 and Shri Sanjeev Pandey. The affidavits of Dr. Juneja and Shri Sanjeev Pandey are rebutted by the affidavit of Ms. Babita complainant. The affidavits of Dr. Jatinder Juneja, the opposite party no.1 being interested partyand Sri Sanjeev Pandey don't inspire confidence. The parties have filed prescription slip and medical treatment record of the complainant.
The opposite party no.1 has never prescribed for MRI test of the complainant. No medical practitioner can ask any one for prescription. The version of opposite party no.1 is after thought and has been manufactured to create false defense. Hence the DISMISSED PAGE 10 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR opposite party no.1 has miserably failed to prove that he ever advised for MRI test of the complainant.
Ld. Counsel for the opposite party no.1 argued that there nothing on the record to prove that the opposite party no. 1 committed medical negligence and there is unfair trade practice or deficiency in service on the part of the opposite party no.1. The complainant required to show that the opposite party no.1 did something or failed to do something which in the given facts and circumstance medical professional in his ordinary senses and prudence would done or failed to do, for holding the opposite party no.1 guilty for commission of medical negligence. In support of his arguments he relied upon case law reported as Jacob Mathew V/s. State of Punjab and another 2005 (6) Supreme Court cases 1.
On the other hand, Ld. counsel for complainant argued that after physical examination and medical test reports the opposite party nol on 04.04.2007 reached to the conclusion that complainant was most likely case of tubercular since her ESR and CRP's were high. Even then the opposite party no.1 did not advise for MRI. The medical expert board has opined that in such circumstancesthe MRI test was required. Therefore, the opposite party not has committed medical negligence. He adopted unfair trade practice and there is deficiency in service on the part of the opposite party no.1. In support of his arguments, he relied upon case law reported as Bombay Hospital and Medical Research Centre V/s. Krishnabehari M. Agarwal 2004 CTJ 468 (CP) (NCDRC) wherein the Hon'ble DISMISSED PAGE 11 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR National Commission has observed that medical negligence is when a doctor does not do what a doctor of average knowledge, experience and capability would do or he does what a large body of doctors would not do.
Admittedly the opposite party no.1 is qualified doctor. He has practicing experience of about 25 years. On 04.04.2007 from medical reports and physical examination of complainant he came to the conclusion that the complainant was most likely case of tuberculosis second and for definite opinion MRI test was required. But the opposite party also could not pursue her legal practice for a long period. The complainant had to spent huge amount on her treatment.Therefore, in totality of the above facts and circumstance we direct the oppositeparty no. 1 to pay a compensation of Rs.5,00,000/-with interest @9% per annum from the date of filing the present complaint till actual realization.
Admittedly, the opposite party no.1 is insured with the opposite party no.2. Therefore, the opposite party no.2 is liable to indemnity the opposite party no.1."
3. Aggrieved by the aforesaid decision of the District Commission, the Appellant has preferred the present Appeal contending that District Commission erred both on facts and on law while observing that the Appellant never advised MRI to the Respondent No.1-patient. It is further submitted that the Appellant advised the patient MRI investigation on the very second date of visit on 04.04.2007. Secondly, it is submitted that the District Commission failed to DISMISSED PAGE 12 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR observe that the Respondent No.1 had concealed true and material facts of the case. Lastly, it is submitted that the District Commission erred in appreciating the values of ESR and CRP in blood test and that the Appellant had already suspected TB and then advised the patient treatment for 6-7 months. Pressing the aforesaid contentions the Appellant has preferred the present Appeal before this Commission.
4. Respondent No.1 has filed her reply to the present Appeal and has stated therein that the Respondent no.1 had to bear more than Rs.9 lacs in her treatment and still she is not fully recovered. It is further submitted that by giving the wrong diagnosis, the Appellant has committed medical negligence, deficiency in service and unfair trade practice. Secondly, it is submitted that even the Board of Doctors have considered the report of the Respondent no.1 and they have also given their report to the effect that the Appellant was negligent while treating/dealing Respondent no.1. Lastly, it is submitted that the Appellant was not medically capable to treat the Respondent no.1 for the said ailment as he is only MBBS and not M.D and the appeal of the Appellant is based on false and misconceived facts and the Appellant has failed to disclose any cogent or sufficient ground for setting aside the order under challenge.
5. Respondent No.2 has filed its reply to the present appeal and has stated therein that the present Appeal filed by Appellant is based on his assertions that there is no negligence on his part. It is further submitted that the liability of the Respondent no.2 is to indemnify the Appellant only and that too when the appellant raises such a claim with the Insurance Company/answering Respondent No.2 on DISMISSED PAGE 13 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR the basis of Order passed against him. The Respondent No.2's liability towards the Appellant is limited to the sum insured as per the Terms and Conditions of Professional Indemnity Insurance Policy.
6. We have perused the material available on record and heard the counsels for the parties.
7. The only question that falls for our consideration is whether the District Commission erred in carving out negligence on part of the Appellant.
8. A perusal of the appeal makes it clear that the entire case of Appellant boils down to the contention that the Appellant did not give any wrong treatment to the Respondent No.1-patient and a failure to diagnose the disease cannot be construed as medical negligence. The Appellant has relied upon a catena of judgments in support of his argument and this Commission has given due consideration to the same.
9. At the outset, when any medical negligence is alleged, whether it pertains to pre or post-operative medical care or to the follow-up care at any point in time at the hands of the treating doctors, it is always apposite to take note of the constituents of negligence and the exposition of law as laid down by the Hon'ble Apex Court in Jacob Mathew v. State of Punjab and Anr (2005) 6 SCC 1 as:
"The test for determining medical negligence as laid down in Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586] holds good in its applicability in India.
xxx xxx xxx
DISMISSED PAGE 14 OF 22
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DR. JATINDER JUNEJA VS MS. BABITA AND ANR
24. The term "negligence" has been defined in Halsbury Laws of England (Fourth Edition) para 34 and as settled in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others as under:
"45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:
"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 a 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."
10. What is to be gleaned from the aforesaid decision is that to establish a claim for medical negligence, it is imperative to meet the following criterion i.e. firstly, the patient was owed a duty of care. Secondly, that duty was breached by a deviation from accepted standards of care. Thirdly, the patient suffered damages and fourthly, the damages suffered were a direct result of the medical provider's breach of duty.
DISMISSED PAGE 15 OF 22
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DR. JATINDER JUNEJA VS MS. BABITA AND ANR
11. It is worthwhile to mention here that 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 intended purpose. Adverting to the facts of the present case, it is crystal clear from the face of the record that the Respondent no.1-patient was suffering from severe back pain since 29.03.2007 and approached the Appellant for her treatment. The Appellant got done various tests of the Respondent no.1 such as ESR, Blood Sugar, Serum Bloor Urea, LE Cell Uric Acid, C-Reactive Phenomena, Proteins, Zone Ebb Index, Glasgow Arthritic Score, Serum C.P.K., Calcium, Platelet Cunt, Serum, Serum Alkaline Phosphaste etc. A perusal of the treatment record of the Respondent No.1-patient as prescribed by the Appellant divulges that the Respondent no.1 was suffering from slip disc and the Appellant was giving her treatment accordingly to for merely back pain. It is further clear from the record that when the Respondent no.1 was not getting any relief and the pain was increasing day by day, the Appellant gave the Respondent traction (pull through machines) but there was no relief and the condition of the Respondent no.1 deteriorated further.
12. The Respondent No.1-patient has further submitted that the Appellant gave her constant assurance that she will be cured within 6-7 months but after one month, the condition of the Respondent no.1 became more critical. Thereafter, the Respondent no.1 went to Sir Ganga Ram Hospital where as per the advise of the treating doctors, the Respondent no.1 underwent an M.R.I which divulged a Bone T.B. and Pott spine in the patient's L1 & L2 section of the spine. Here, we deem it appropriate to refer to the prescription as DISMISSED PAGE 16 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR advised by doctors at Sir Ganga Ram Hospital, reproduced hereunder as:
DISMISSED PAGE 17 OF 22
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13. A perusal of the aforesaid prescription reflects that the doctors at Sir Ganga Ram Hospital immediately advised the patient to undergo MRI when the patient reported 'no relief'. Here, it is worthwhile to mention that it is evident from the perusal of the aforesaid prescription that any doctor of ordinary prudence shall advise the patient for a radiological scan as per standard medical protocol to diagnose the root cause of the ailment, in the event the patient reports no relief. However, the Appellant has not placed on record a single prescription wherein the Appellant had advised the patient an MRI to diagnose the cause of the pain. We further deem it appropriate to refer to the opinion of the expert medical board DISMISSED PAGE 18 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR constituted at R.M.L Hospital dated 11.05.2009, relevant extract reproduced hereunder as:
"On perusal of available treatment records. It is observed tha patient was treated symptomatically for backache. However, radiological examination could have been done if patient was no getting relief during a period of one month."
14. Here, it is pertinent to remark that every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as 'implied undertaking' by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. It is to be noted further that the aforesaid medical opinion, though in a discreet fashion, contains a specific and clear cut finding to the effect that the in analogous cases of pain continuing over an extended period of time an MRI is prescribed as per the standard medical protocol and the Appellant should have prescribed an MRI to determine the cause of the disease.
15. At this juncture, it is worthwhile to note that as per the ratio of Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118], it is enough for the medical practitioner to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the practitioner charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date DISMISSED PAGE 19 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR of trial. Secondly, 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 point of time on which it is suggested as should have been used.
16. It is further pertinent to remark here that a medical professional is not required to possess an extra ordinary degree of skill or expertise. A medical practitioner is only required to possess a reasonable degree of skill and to provide a reasonable degree of care to be cleared from the charge of medical negligence. However, in the event where a doctor may possess an extraordinary level of skill but fails to provide basic care or fails to do something that is fundamentally required to be done, a charge of medical negligence is definitely attracted in such a case.
17. It is pertinent to note here that from the extensive reading of medical literature on the present issue and as per the expert medical opinion, it has come to our knowledge that as per the standard medical protocol in such cases of back pain, the first basic step is to opt for a radiological scan/MRI to diagnose the cause of the disease, if the problem persist for an extended period of time. However, a perusal of the record makes it clear the Appellant never prescribed the Respondent no.1-patient to undergo an MRI scan. It was only after the condition of the Respondent no.1 became more critical that the Respondent no.1 approached Sir Ganga Ram Hospital where as per the advise of the treating doctors, the Respondent no.1 underwent an M.R.I which divulged a Bone T.B. and Pott spine in the patient's L1 & L2 section of the spine. No cogent material has been placed on record by the Appellant to show that the patient was ever advised to go for an MRI scan. On the contrary, it is clear from the treatment DISMISSED PAGE 20 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR record that the Appellant never prescribed the Respondent no.1- patient to undergo an MRI scan nor it is the case of the Appellant that the required facility of MRI was not accessible/available during the time the patient underwent treatment with the Appellant.
18. It is to be noted further that TB is a progressive disease and time was the essence in the present case. The condition of the patient deteriorated due to misdiagnosis of the ailment and consequent lack of treatment specific to the disease, so much so that the patient was bed ridden for a considerable period of time on account of the said disease.
19. Even as per the law laid down in Jacob Mathew (supra), to establish a claim for medical negligence, it is imperative to meet the following criterion i.e. firstly, the patient was owed a duty of care. Secondly, that duty was breached by a deviation from accepted standards of care. Thirdly, the patient suffered damages and fourthly, the damages suffered were a direct result of the medical provider's breach of duty. In the present case, it is to be noted that the Appellant owed a duty of care towards the Respondent No.-1 patient. Though it is the contention of the Appellant that merely giving the treatment or a failure in diagnosis cannot amount to medical negligence, it is to be noted that as per the second condition laid down in Jacob Matthew (supra), a breach of duty to care by deviation from accepted standards of care provides an avenue for carving out negligence on part of the treating doctor, the pivotal term employed in the judgment being "a deviation from accepted standards of care.
20. Therefore, it is established that the Appellant did not opt for the standard line of diagnosis and valuable time was lost in diagnosing DISMISSED PAGE 21 OF 22 FA/327/2017 DOD: 08.10.2024 DR. JATINDER JUNEJA VS MS. BABITA AND ANR the actual disease, causing physical and mental hardship to the patient.
21. Therefore, we do not find any reason to interfere with the order dated 06.05.2017 as passed by the District Consumer Disputes Redressal Commission (West), C-block Janakpuri, New Delhi. Consequently, the Appeal stands dismissed with no order as to costs.
22. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
23. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
24. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
08.10.2024 L.R.-G.P.K DISMISSED PAGE 22 OF 22