State Consumer Disputes Redressal Commission
Nighat Jahan vs Anil Bansal on 24 January, 2024
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL PLOT NO.76, ARERA HILLS, BHOPAL FIRST APPEAL NO.688 OF 2017 (Arising out of order dated 15.03.2017 passed in C.C.No.678/2016 by the District Commission, Bhopal-1) NIGHAT JAHAN, W/O MR. SOHAIL KHAN, R/O HOUSE NO.1, STREET NO.2, RAIT GHAT, CHOWKI TALAIYA, BHOPAL (M.P.) ... APPELLANT. VERSUS 1. ANIL BANSAL, CHAIRMAN CUM MANAGING DIRECTOR (CMD), BANSAL HOSPITAL, BHOPAL. 2. DR. R. P.SINGH, ORTHOPAEDIC SURGEON & HIP REPLACEMENT SPECIALIST, BANSAL HOSPITAL, BHOPAL (M.P.) ... RESPONDENTS. BEFORE: HON'BLE SHRI A. K. TIWARI : ACTING PRESIDENT HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES: Shri Vijay Sehgal, learned counsel for the appellant. None for the respondents. O R D E R
(Passed On 24 .01.2024) The following order of the Commission was delivered by A. K. Tiwari, Acting President:
The complainant/appellant has filed this appeal against the order dated 15.03.2017 passed in C.C.No.678/2016 by the District Consumer Disputes Redressal Commission, Bhopal-1 (For short 'District Commission) whereby the complaint filed by her has been dismissed.-2-
2. The facts of the case in brief are that the complainant was suffering from backache and was experiencing difficulty in walking since last few months for which she approached Bansal Hospital. After initial screening the complainant was directed to consult opposite party no.2 Dr. R. P. Singh Orthopedic Surgeon & Hip Replacement Specialist. After some medical tests including X-ray the doctor opined and informed the complainant for right hip replacement. Thereafter, the opposite party no.2-doctor suggested that since right hip was required to be replaced, the left hip would develop the same problem after sometime and it would be beneficial to have both hips replaced by surgery. The opposite parties assured the complainant that after hip replacement surgery, the complainant will be completely cured and will get full relief. The complainant then deposited Rs.3,90,000/- on 05.10.2015 prior to surgery and made to undergo medical tests and pre-anesthetic checkups. At that time the complainant was pregnant and this fact was very well conveyed to the opposite party no.2-doctor before he conducted medical tests. The opposite party no.2 totally disregarded this important fact of pregnancy of the complainant and went ahead with all tests including x-rays thus exposing the unborn fetus to unnecessary radiation exposure.
3. The complainant was admitted in opposite party no.1 hospital on 06.10.2015. It is alleged that the opposite parties without adopting any -3- observation procedure conspired to do total hip replacement of the complainant, when it was not warranted and even without taking any written consent of the complainant or her family members operated her and carried out total hip replacement on 07.10.2015 at 9.30am by the opposite party no.2-doctor. The complainant remained in hospital from 06.10.2015 to 24.10.2015 but despite getting total hip replacement operation, her medical condition did not improve. It is alleged that when the complainant expressed her concern to the opposite party no.2 about expensive medical treatment, the opposite parties told her that Chief Minister of M.P. has a sleeping partnership in Bansal hospital and they will arrange all the expenses occurred in her surgery from the Chief Minister's Relief Fund but that was not materialized. Since the problem of the complainant did not subside, the complainant was then referred to Dr. Nitin Garg, Neuro & Spinal Surgeon for spinal cord/back bone treatment, the symptoms with which the complainant firstly reported in Bansal Hospital.
4. Thereafter the complainant had to undergo another round of expensive medical tests including MRI, disregarding her pregnancy and later coerced for another operation of her backbone on 24.02.2016 i.e. just after four and half months of first operation. Despite this second operation, there was no improvement in her condition. On the contrary, the unborn foetus got exposed to a lot of radiation which seriously affected his growth -4- and development as later in Chirayu Hospital, Bhopal after the sonography it was found that the unborn foetus (11 weeks and 4 days) was not showing any cardiac activity. Dr. Anita Shrivastava, Obstetrician and Gynecologist of Chirayu Hospital opined that such an unborn foetus would not be formed fully and possibly not survive. The complainant was thus forced to abort this foetus which caused her a great deal of trauma in addition to the pain and suffering already undergone at Bansal Hospital. The complainant has thus been made to suffer untold misery, emotional stress, physical discomfort and pain, trauma of losing her unborn child and unnecessary expenditure of around Rs.10lacs to meet the expensive treatment at Bansal Hospital and later in house call physiotherapy treatment. The complainant thus convinced that her aggravated present medical condition is mainly due to exploitation by Bansal Hospital and specially the greed shown by the opposite party no.2 Dr. R. P. Singh to forcing/subjecting her for total hip replacement when it was not warranted since she was suffering from a back problem.
5. The complainant therefore alleging deficiency in service on part of opposite parties filed a complaint before the District Commission seeking Rs.10lacs incurred by the complainant as also Rs.10lacs as damages for irreparable loss of her foetus along with costs.
-5-6. The opposite parties were proceeded ex-parte before the District Commission.
7. The District Commission dismissed the complaint holding that the complaint of medical negligence and deficiency in service is not proved against the opposite parties.
8. Heard learned counsel for the appellant as none appeared for the respondents. Perused the record and written arguments filed by the complainant/appellant.
9. Learned counsel for the complainant/appellant argued that the District Commission has gone beyond its jurisdiction and taken role of the counsel for the opposite parties in contesting and defending the complaint made against them and dismissed the complaint on merits in absence of opposite parties. He argued that the District Commission has on its own initiative opined that the complainant was suffering from 'Ankylosing Spondylitis' a disease which results in twisting of the backbone like a bamboo whereas the medical case papers do not reflect this disease having been mentioned by any of the two super specialty doctors who examined and operated the complainant. The source of knowledge of this disease appears to be malafide and with ulterior motive, thus the order of the District Commission is liable to be set-aside on this ground.
-6-10. He further argued that the District Commission in its own wisdom conveniently overlooked the fact that the complainant had been operated without her consent which is matter of grave concern and is an offence. He argued that the District Commission on its own initiative opined that it has been seen that in a large number of medical cases, patients prescribed 'modifying anti rheumatism drugs' for a long duration are often prone to deterioration of the hip bone and case of the complainant, this has exactly what has happened. On the contrary, the medical case papers of the complainant do not reflect this symptom having been mentioned/advised to the complainant by any of the two super specialty doctors who examined and operated the complainant. The source of knowledge of this specific medicine appears to be malafide and with ulterior motive.
11. He argued that the District Commission has adversely commented that complainant has not filed counter affidavit apart from one already submitted with the complaint. The District Commission failed to appreciate that subsequent affidavit is provided only when the opposite party files a reply. Since in the present case, the opposite parties remained absent and did not file any reply, there was no necessity of counter affidavit. The District Commission has adversely commented that the complainant lost her unborn foetus due to her own ignorance, thus the District Commission has gone beyond its jurisdiction to comment upon a lady who -7- would be the first person to know of her pregnancy since her menstrual cycle would stop as soon as she becomes pregnant. He argued that the District Commission has in its own wisdom conveniently overlooked the citation of Hon'ble Supreme Court in Laxman Balkrishna Joshi Vs Trimbak Bapu Godbole AIR 1969 SC 128 cited by the complainant. He therefore prayed that the impugned order deserves to be set-aside and the complainant filed by the complainant deserves to be allowed. He thus prayed that the relief as claimed in the complaint be granted by allowing this appeal.
12. None appeared for the respondents though served.
13. From the record of appeal, we find that on 17.05.2019 Mr. Ashwin Rastogi appeared on behalf of opposite parties/respondents and undertook to file vakalatnama on behalf of them but thereafter neither he appeared nor has filed vakalatnama. Thereafter on 04.03.2020, Mr. Abhimanyu Shrivastava has filed vakalatnama on behalf of opposite party no.1/respondent no.1 and undertook to file vakalatnama on behalf of opposite party no.2/respondent no.2. Thereafter no one appeared for the opposite parties/respondents.
14. On going through the record, we find that the complainant has filed her affidavit along with set of documents. The opposite parties remained ex-parte before the District Commission.
-8-15. We find from the complaint and the documents filed by the complainant that admittedly the complainant underwent total hip replacement by the opposite party no.2 in the opposite party no.1 hospital on 07.10.2015 for which she remained hospitalized from 06.10.2015 to 24.10.2015, but despite total hip replacement operation, her condition did not improve. The allegation of the complainant that the opposite parties forced her for total hip replacement and operated her for the same without any consent and more particularly when there is no need of hip replacement. As after total hip replacement, when there was no improvement, she was referred to Dr. Nitin Garg, Neuro and Spinal Surgeon for surgery of spinal cord/backbone treatment i.e. the symptom which the complainant reported in Bansal Hospital first time. Thereafter again she underwent another backbone surgery on 24.02.2016 i.e. after four months of the first operation.
16. It is also alleged by the complainant that at the time first surgery for total hip replacement she was pregnant and told this fact to the concerned doctor i.e. the opposite party no.2 but he disregarded this important fact of pregnancy of complainant and went ahead all tests including x-rays and thereafter MRI which resulted to growth and development of unborn foetus and she was forced to abort her. She also alleged that she had to suffer untold misery, emotional stress, physical discomfort and pain, trauma of losing her unborn child and unnecessary -9- expenditure of around Rs.10lacs to meet the expensive treatment at Bansal Hospital and later in house call physiotherapy treatment.
17. We find that since the complainant has made allegations supported by her affidavit & documents and when there is no rebuttal, despite ample opportunities given to the opposite parties to file their reply and their version, from this angle we find that the allegations made by the complainant are proved unless there is no rebuttal. The opposite parties despite service of notice did not bother to appear and contest the case neither before the District Commission nor before this Commission.
18. If the opposite parties remained ex-parte before the District Commission and failed to file written statement, it is the duty of the complainant to prove her case prima facie. If the general defence of the opposite parties without being filing of written statement, is taken into consideration we find that the complainant has proved her case and the opposite parties have failed to file any document in order to justify their position and to prove that there was no deficiency in service neither before the District Commission nor before this Commission. The opposite parties have also not filed any application for considering the documents, if any, before this Commission. Not only this, the opposite parties not make any -10- prayer for setting aside the order proceeding ex-parte against them so that the matter can be remanded.
19. Further, we find that the District Commission moved one step further in stating that as per decision of the High Court, on the death of the sufferer, a medical board should be established in order to find that whether there was any medical negligence or not and without opinion of Medical Board, the police cannot lodge FIR against the faulty doctor. However, in the present case, the District Commission on its own has given different findings on medical basis supposing it to be a medical expert but did not bother to send the medical papers of the complainant to the Medical College for constituting a committee and for obtaining any medical expert opinion.
20. The District Commission on its own has opined that the complainant was suffering from Ankylosing Spondylitis disease which results in twisting of the backbone like a bamboo. This disease was never mentioned by any of the two doctors who operated and treated the patient.
Even if there was a disease of backbone, what is the necessity of total hip replacement? In the literature filed by the complainant/appellant along with written arguments Ankolysing Spondylitis is defined as "Inflammatory disease that overtime can cause some of the vertebrae in spine to fuse which makes the spine less flexible and can result in a hunched posture. There is no cure of this disease but treatment can possibly show -11- progression of the disease. This disease has no specific cause though genetic factors seem to be involved."
21. Again the District Commission moved one step further and without any evidence, material, medical literature and more particularly without any reply and documents filed by the opposite parties available on record as also without referring any medical literature, on its own initiative opined that it has been seen in large number of cases, patients prescribed "Disease Modifying Anti Rheumatism Drugs (DMARDs)" for a long duration are often prone to deterioration of hip bone and in the case of the complainant this has exactly what has happened. The two specialists doctors who treated and operated her never mentioned or advised her that long use of Disease Modifying Anti Rheumatism Drugs (DMARDs)" are the cause for hip replacement and effected the pregnancy of the complainant.
22. We do agree with the arguments of learned counsel for the complainant/appellant when the complainant/appellant has already filed an affidavit in support of her complaint, there is no need to file any counter affidavit in absence of any reply of the opposite party. Counter affidavit has to be filed only to controvert the submissions made by the opposite parties in their reply, but in the present case, the opposite parties remained absent and were proceeded ex-parte.
-12-23. Hon'ble Supreme Court in Harish Kumar Khurana (Dr.) Vs Joginder Singh & Ors. II (2022) CPJ 43 (SC) has held that 'To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of Res ipsa loquitur could be made applicable and not based on perception.
24. Considering the overall facts and circumstances of the case and more particularly when there is no prima facie rebuttal on behalf of opposite parties to the complaint and allegations made, the negligence alleged by the complainant is so glaring due to which she had to suffer a lot. Not only she had to lose her child, she had to suffer pain sufferings and mental pain and trauma. She has specifically alleged that for the first time complaint of backache she advised and undergo total hip replacement which was not necessary and thereafter she had to undergo spine surgery that is too without her consent. Thus in our considered opinion, the opposite parties were negligent and deficient in service in treating the patient complainant.
25. The Consumer Protection Act is a benevolent and beneficiary act to protect the rights of a consumer. But the District Commission without protecting the rights of consumer itself opining that the complainant was suffering from Ankylosing Spondylitis and that it has been seen in large number of cases, patients prescribed "Disease Modifying Anti Rheumatism -13- Drugs (DMARDs)" for a long duration are often prone to deterioration of hip bone and in the case of the complainant this has exactly what has happened whereas the two specialists doctors who treated and operated the complainant never mentioned about it.
26. In Savita Garg Vs Director, National Heart Institute IV (2004) CPJ 40 (SC), Hon'ble Supreme Court has observed that--
"10. The Consumer Forum is primarily meant to provide better protection in the interest of consumers and not to short circuit the matter or to defeat the claim on technical grounds..... We cannot place such a heavy burden on the patient or the family members/relatives to implead all those doctors who have treated the patient or the nursing staff to be impleaded as party.... In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated the patient that there was no negligence involved in the treatment. Since the burden is on the hospital and concerned doctor who treated that patient that there no negligence involved in the treatment......"
27. In Nizam Institute of Medical Science Vs Prasanth S. Dhananka & Ors. II (2009) CPJ 61 (SC) the Hon'ble Supreme Court has observed that--
"32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care and diligence."-14-
28. The aforesaid discussion clearly indicates deficiency in service on part of the opposite party no.2 doctor and hence, the opposite party no.1-hospital is also vicariously liable for deficiency in service on part of the treating doctors. No doubt, it is a full proof case of medical negligence and deficiency in service on part of opposite parties since despite service before the District Commission and this Commission they did not bother to appear as also to file any reply.
29. For the foregoing discussion, in our considered opinion, the District Commission has gravely erred in dismissing the complaint by supposing it to be a medical expert. In such circumstances, we are of a considered opinion that the impugned order cannot be sustained in the eyes of law and deserves to be set-aside. Accordingly, the impugned order is set-aside.
30. Since the complainant in very early age of 35 years had to underwent total hip replacement surgery and thereafter spine surgery and also she lost her child due to negligence of opposite party no.1 hospital and opposite party no.2 doctor, she had to suffer untold misery, emotional stress, physical discomfort and pain, trauma of losing her unborn child and unnecessary expenses to meet the expensive treatment at the opposite party no.1-hospital, she deserves to be compensated appropriately.
-15-31. In the result, the appeal is allowed. Consequently, the complaint is allowed. The opposite parties/respondents are hereby directed to pay jointly and severally to the complainant a lump sum amount of compensation of Rs.10,00,000/- with interest @ 6% p.a. from the date of filing of complaint i.e. 24.08.2016 till realization. The opposite parties/respondents are also directed to pay jointly and severally costs of Rs.20,000/- to the complainant. The aforesaid order be complied with within a period of two months from today failing which the aforesaid amount shall carry interest @ 7.5% p.a. from the date of this order till payment (A. K. Tiwari) (Dr. Srikant Pandey) Acting President Member