State Consumer Disputes Redressal Commission
Bedi Hospital vs Gurmeet Singh S/O S. Gurmail Singh on 4 February, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 344 of 2018 Date of Institution : 28.11.2018 Date of Decision : 04.02.2022 Bedi Hospital Kothi No.182, Sector 33-A, Chandigarh through its sole proprietor Dr. Ramneek Singh Bedi MD, DCH (Child and Newborn Specialist). Dr. Ramneek Singh Bedi, MD, DCH (Child and Newborn Specialist at Bedi Hospital, Kothi No.182, Sector 33-A, Chandigarh) r/o #182, Sector 33-A, Chandigarh. ......Appellants V e r s u s Gurmeet Singh aged about 34 years (father of deceased child Baby Ashmeet Singh) s/o S. Gurmail Singh, House No.32, Fatehullapur, Kharar, SAS Nagar, Mohali, Punjab 143001. Rajinder Kaur (mother of deceased child Baby Ashmeet Singh) w/o Sh. Gurmeet Singh House No.32, Fatehullapur, Kharar, SAS Nagar, Mohali, Punjab 143001. The Director, PGIMER, Sector 12, Chandigarh M/s Oriental Insurance Company Limited, Sona Complex, Miller-Ganj, G.T. Road, Ludhiana through its Branch Manager. .....Respondents BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS.PADMA PANDEY, MEMBER.
MR.RAJESH K. ARYA, MEMBER.
Present through Video Conferencing :-
Ms.Shubreet Kaur Saron, Advocate for the appellants alongwith appellant no.2 in person.
Sh.Dinesh Ghai and Sh.Nikhil Ghai, Advocates for respondents no.1 and 2.
Ms.Niharika Goyal, Advocate for respondent no.3 Sh.Amit Kundra, Advocate for respondent no.4.
PER PADMA PANDEY, MEMBER This appeal has been filed by the appellants/opposite parties no.1 and 2, as they are aggrieved of the order dated 25.10.2018 passed by the District Commission-I, U.T., Chandigarh (in short the District Commission), whereby the consumer complaint bearing no.445 of 2016, filed by respondents no.1 and 2/complainants was allowed in the following manner:-
In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. OPs 1 & 2 are directed as under:-
To immediately pay lump sum amount of Rs.7,00,000/- to the complainants for indulgence in medical negligence leading to the death of the baby boy;
To pay Rs.3,00,000/- to the complainants as compensation for pain and suffering and loss of love and affection due to the untimely death of their only child.
To pay to the complainants Rs.10,000/- as costs of litigation.
This order be complied with by OPs 1 & 2 within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
Since OP-2 was insured with OP-4/insurance company, OP-4 is at liberty to pay the aforesaid amounts and indemnify the complainants as per terms and condition of the insurance policy. The consumer complaint qua it is disposed of accordingly.
The consumer compliant qua OP-3 stands dismissed with no order as to costs.."
The facts necessary for disposal of the appeal, as narrated in the impugned order, are given hereunder:-
"....complainant Nos.1 & 2 are husband and wife respectively and were blessed with their first child i.e. a son on 2.3.2016 who was named as Ashmeet Singh. It is the allegation, complainants took baby Ashmeet Singh to OP-1/hospital owned by OP-2 on 12.3.2016 for routine check-up of newly born kids. On this OP-2 had suggested for post birth routine vaccination. Even on the said date, the abnormality which the complainants had noticed was fast breathing and baby was not feeling comfortable. OP-2 had suggested some nasal drops without carrying out any clinical or lab tests. The complainants had faith in the competence of OP-2 and again on 17.3.2016 baby Ashmeet was vaccinated for BCG without any test. The complainants had visited the OP-1 hospital on 12.3.2016, 17.3.2016, 5.4.2016, 24.4.2016, 16.5.2016, 21.5.2016 and 22.5.2016. Every time it was brought to the notice of OP-2 that breathing was fast. Per recommendation of OP-2, the child was taken for vaccination on 21.5.2016 on which date I.P. Imovax Polio was administered. Again the baby started breathing exceptionally fast. Payments for vaccination etc. were taken by OP-2. It is the case, on the intervening night of 21/22.5.2016, baby Ashmeet did not sleep and continued crying. He was taken to OP-2 on 22.5.2016 and all the facts were apprised. OP-2 prescribed Babygesic drops per prescription dated 22.5.2016. Subsequently, the condition of the baby worsened and he was vomiting. He was taken to OP-3 in APC emergency ward where the doctor had clinically suspected a case of congenital cyanotic heart disease. Baby Ashmeet remained admitted in the ICU of OP-3 w.e.f. 22.5.2016, but, his condition did not improve and he ultimately died on 26.5.2016. OP-3 were of the view to conduct corrective surgery, but, it was not done due to worse condition of the child. It is the case, had OPs 1 & 2 exercised reasonable skill of expertise, the said problem could have been detected and treated by way of corrective surgery. Hence, it is a case of medical negligence on the part of OPs 1 & 2. OP-4 has been arrayed as a party during the pendency of the consumer complaint being the insurer to indemnify the claim, if passed, against OPs 1 & 2 except for criminal medical negligence. On these averments, compensation of Rs.19.50 lakhs has been prayed for against OPs 1 & 2 or any other order deemed proper by this Forum. ....."
Opposite parties no.1 and 2 filed written statement, which was noted down by the District Commission in the order impugned as under:-
".......OPs 1 & 2 contested the consumer complaint and denied the allegations of any medical negligence on their part. The crux of their reply is, baby was brought to their hospital for routine vaccination. It is claimed, complainants had never apprised OPs 1 & 2 that baby Ashmeet had signs and symptoms of fast breathing. It is the case, clinically there were no signs and symptoms of any congenital cyanotic heart disease with the child as cyanosis was not present. The other crux of their reply is, no treatment was given by them except for vaccination which was asked for by the complainants. Net result of their reply is, there was no medical negligence on their part. Even otherwise, on complaint of criminal offence submitted by the complainants to the police, the medical board had examined the record and had also heard the complainants and they found no case of medical negligence against OP-2. As the signs and symptoms had appeared before the terminating period of life, therefore, there was no question of this congenital disorder diagnosed on an earlier date. Averred, birth of the child had taken place by way of IVF at Jalandhar and the complainants were asked to come for review on 10.3.2016, but, they did not report and rather came to OP-2, and the past history was not revealed. On these lines, the cause is sought to be defended and allegations of medical negligence were denied in toto...."
Opposite parties no.3 and 4 stated in their replies as under:-
".....OP-3 furnished its separate written reply. It is their case, child was admitted in Pediatric Emergency, Advanced Pediatrics Centre (APC), PGIMER, Chandigarh on 22.5.2016 at 16.50 p.m. as a suspected case of congenital heart disease or acute myocarditis and the corrective surgery could not be done being risky and the baby succumbed to his illness on 26.5.2016. It is also the case, for vaccination tests are not required and it was disclosed that the child had fast breathing problem only four days prior to the date of admission to the PGIMER, Chandigarh. This is their defence.
OP-4/insurer admitted that OP-2 is covered under the insurance policy upto Rs.50.00 lakhs if any compensation is awarded except for any criminal medical negligence. Maintained, complainants are not a party to the agreement, therefore, OP-4 ought not to have been arrayed as a party..".
The parties led evidence in support of their case before the District Commission. The District Commission after hearing the contesting parties and going through the material available on record, partly allowed the complaint, against the appellants, while holding as under:-
"..............The affidavit furnished by the complainants inspires confidence as the PGIMER/OP-3 in their written statement had also referred to the past history of fast breathing problem for the preceding four days to be counted from 22.5.2016 which comes out to 18.5.2016. The baby was examined by OP-2 on 21.5.2016 and 22.5.2016. In the prescription slip of 22.5.2016, there is a reference of pain abdomen and Babygesic drops were given. Now it does not lie in the mouth of OP-2 that no such complaint of fast breathing was referred to by the parents of the baby. If the parents/complainants could apprise the fact of fast breathing since four days to the doctors at the PGI on 22.5.2016 then we are not able to understand why should they not tell the same to OP-2 on 21.5.2016 and 22.5.2016 respectively? Hence, the defence put forth by OPs 1 & 2 that no history of fast breathing was given by the complainants, falls to the ground.
It is the defence of the OPs that the baby was brought by the complainants for the purpose of routine vaccination. We are afraid to hold or accept this contention advanced on behalf of OPs 1 & 2. The reasons are, there is a reference in the written statement furnished by OPs 1 & 2 that on 24.4.2016, the child was brought by the complainants with the prayer that ordinarily there is a birth jaundice which contention was accepted and the test was prescribed. OP-2 is a well reputed doctor and remained associated with WHO, USA and other pioneer institutions. Mere saying of parents, jaundice tests were recommended. It was for OP-2 to conduct the medical tests etc. to diagnose with what disease baby Ashmeet was suffering from. Prescribing of nasal drops, then a test for jaundice and then some anti-gas medicine even on 22.5.2016 itself shows that the matter was taken carelessly and no attempts were made to detect the cause of fast breathing. Had some tests as per medical science were performed, the disease i.e. congenital cyanotic heart disease could have easily been determined and then corrective surgery was likely to be performed. Now a vague defence is being put up that there were no signs and symptoms of congenital cyanotic heart disease as cyanosis was not present. This is totally a lame excuse for an expert doctor of the stature of OP-2 as he claims to be possessing so many degrees and vast experience in the field of Pediatrics.
It is also being argued, OP-2 is not a Pediatric cardiologist, but, definitely he is a physician in Pediatrics and after conducting detailed investigation, child could have been referred to some Pediatric cardiologist.
We have already referred to the reply of OP-3 a Govt. institution. On the same symptom on 22.5.2016 Babygesic drops i.e. anti-gas medicine was prescribed by OP-2 and after a few hours, on the same date, when the baby was taken to OP-3, the attending doctor with the said symptoms had suspected it to be a case of congenital cyanotic heart disease which was later on confirmed with x-ray and other tests. A less reputed doctor in the hospital/OP-3 diagnosed the problem of the baby at the first instance, but, a well reputed doctor of the caliber of OP-2 failed to clinically diagnose the problem. This itself shows, there was carelessness on the part of OP-2 and these symptoms were taken lightly and anti-gas medicine and vitamins were prescribed.
The defence that the parents/complainants did not apprise any fast breathing is not believable at all. Was it not the duty of the doctor to ask the parents of the child about the past history regarding birth and other complicated problems etc.? Parents are laymen in the matter and general examination was to be done by OP-2. On the contrary, defence is being set up that only immunized vaccination was to be done. In our opinion, the said part could be done even by a Pharmacist and where was the necessity to carry the child to a Pediatrician who has long standing experience in the matter. OP-2 was expected to apply the professional skills which he was possessed of having a lot of exposure in various institutions in the field of Pediatrics. How OP-2 has prescribed the test on the asking of the complainants for jaundice when there was no such clinical diagnosis is not understandable at all?
A perusal of the record further shows, even on 22.5.2016, there is a reference of complaint of pain abdomen. How can parents tell there is pain in abdomen when an infant is not in a position to convey the pain and the only way to express is the cries and nothing else? How OP-2 localised that it was abdomen pain is not understandable? He was not to be guided by the parents/complainants but was to employ his own professional skill.
Per the prescription record and there are reliable affidavits put forth by the complainants regarding fast breathing particularly so there was no history of fever then the prescription slip does not disclose that clinically OP-2 had measured the baby's heart beat rate, respiratory rate etc. The disorder was alleged to be since birth and no efforts were employed to know what was his heart beat rate or respiratory rate per minute so as to fall over and above the prescribed standards. Now the escape route of immunization is being set up. By and large it also happens that a person goes to the doctor with some specific disease, but, the doctor on examination finds another disease which may not be there even in the dreams of the said person. We mean to say is, OP-2 being an experienced doctor possessed full knowledge and skill had not taken any efforts with clinical lab examination or any other tests etc. to detect the cause of fast breathing or to say abdomen pain.
The doctor from PGI on examination of the child diagnosed the disease as congenital cyanotic heart disease and OP-2, who had charged the amount, even with clinical examination, failed to detect this disease and even did not think it proper to conduct any tests for his assistance. Perusal of the pleadings of the PGI shows, remedy also lies in corrective surgery, but, due to late admission it could not be performed. This itself shows medical negligence on the part of OPs 1 & 2 is writ large.
Per pleadings of the parties and the evidence led, it is a matter of common sense that an infant is carried to a Pediatrician may be for immunization or general assessment of development of milestones or to know if there was any developmental delay. Perusal of the record further does not show what was the diagnosis of OP-2 on 22.5.2016. He simply referred in the prescription slip complained of abdomen pain. Who complained it - whether the parents or the child - is not mentioned and simple Babygesic drops was prescribed and on the same signs and symptoms the diagnosis of OP-3 was congenital cyanotic heart disease.
We are at pain to note that baby Ashmeet had died without treatment at an early date. We are not in agreement with the contention of learned counsel for the OPs 1 & 2 that this problem and symptoms had developed on the same day in a few hours on 22.5.2016 when he was admitted in the PGI. It was defect/disorder by birth and in a few hours it cannot develop when the life could last for 4-5 days more as he remained admitted in the PGI. It is a matter of common sense that it was not a cardiac arrest or a sudden heart failure leading to mortality.
Per pleadings, evidence led and the record which has been referred hereinbefore, shows that it is a case of medical negligence on the part of OPs 1 & 2 and they cannot have escape route by taking plea that the child was brought for immunization only. For this matter we do not need any corroboration from the medical board though it was contended by the learned counsel for OPs 1 & 2 that during the course of investigation of a criminal negligence case a medical board was constituted and the said board had given clean chit to OPs 1 & 2 of any medical negligence.
The report of medical board is Annexure A-1. The contents of the report are that the members of the board i.e. Director Principal, Medical Superintendent, Additional Secretary Health and Dr. Ashish Bhalla had interaction with both the parents and Dr. Bedi/OP-2 and their opinion was that the child had died of a complex genital (infact congenital) heart disease which was difficult to suspect in a normal thriving child and even difficult to diagnose either antenatal or in postnatal till an acute episode of congestive cardiac failure brought it to the notice of the treating doctors at PGIMER, Chandigarh. The committee concluded and opined that there was no negligence in this case by Dr. G.K. Bedi Hospital as alleged. We are not in a position to accept this report for the simple reason that there is a reference that the parents of the child were heard and this conclusion was drawn during the pendency of the present consumer complaint in the year 2017 on 16.5.2017. The complainants had levelled allegations of clear-cut negligence on the part of OPs 1 & 2. How could they retract from these allegations before the committee constituted and gave findings on 16.5.2017? If there were allegations of medical negligence, as fast breathing was apprised time and again, what are the reasons to distrust those allegations have not been mentioned in the report, referred to above. We are sorry to say, we discard this report in view of the record of the PGI as well as other evidence led by the complainants.
The attack of the learned counsel for the OPs is that the birth of the baby was through IVF and some problems were highlighted at Jalandhar and review was asked on 10.3.2016, but, the complainants did not report to the said hospital and took the child to Chandigarh. If it is so, when they can apprise the problem to the treating doctor at Jalandhar, what prevented them to disclose the same to OP-2 on 12.3.2016, when the baby was firstly got examined from OP-2? Was it not the duty of OP-2 to ask regarding the birth problem, if any, with baby Ashmeet at the time of birth? There was no hitch for the parents not to produce the past record with OP-2 and the necessary conclusion is that it was not asked for by OP-2 or he failed to ask the same and took the matter lightly........."
Hence this appeal.
We have heard the contesting parties and have also gone through the entire material available on the record.
Perusal of record reveals that before the District Commission and also this Commission, respondents no.1 and 2 have been vehemently stating that starting from 12.03.2016, they have been reporting to the appellants that the baby was breathing fast but they failed to diagnose that he was actually suffering from the disease-congenital cyanotic heart, as a result whereof, he died, as he could not get timely treatment.
On the other hand, the appellants, before the District Commission and this Commission has vehemently contended that since the baby was brought for routine vaccination and his parents never complained of any breathing problem or any other problem, as such, the plea taken by them in their complaint is devoid of merit.
It is not in dispute that the doctors of PGIMER/respondent no.3, on examination found that the baby was suffering from the disease for which correct remedy was surgery, but, due to late admission it could not be performed, as a result whereof, he died. Under these circumstances, the short question which needs to be adjudicated in this appeal is as to whether, on 12.03.2016 it was only for routine vaccination that the baby-Ashmeet (in short the baby) was brought to the appellants or that any other problem with regard to congestion/stiffness/breathing etc. also came to the knowledge of the appellants or not.
It is significant to mention here that for coming to any conclusion, the cogent evidence whereupon this Commission can place reliance is the prescription slip dated 12.03.2016, Annexure R-3 which shows that on the said date, apart from ultra drops and ostacalcium syrup, the baby was also prescribed emosome ointment (3 times a day) and also nasoclear drops (sline nasal drops). The appellants, either before the District Commission or before this Commission have failed to clarify as to why, when the baby was brought only for routine vaccination, what forced them, also to prescribe emosome ointment (3 times a day) and also nasoclear drops (sline nasal drops). It is their own case of the appellants that the nasoclear drops (sline nasal drops) are prescribed for nasal stiffness and that emosome ointment is prescribed if there are rashes in the anal region. Even in para no.4 (H) 5 of the written statement filed by the appellants, before the District Commission, it has been in a very candid manner stated that on 05.04.2016, since no complaint of rashes of anal region of the baby or nasal stiffness was reported, as such, the emosome ointment and nasoclear drops were not prescribed again. This candid admission of the appellants, in itself, is sufficient to prove the case of respondents no.1 and 2 that they had reported the appellants on 12.03.2016 with regard to stiffness in the nose of the baby and also that there were rashes in his anal region. However, there is nothing on record that any further test to diagnose as to why the baby was suffering from nasal stiffness was carried out by the appellants.
Furthermore, it is also evident from the record that the baby was examined by the appellants on 21.5.2016 and 22.5.2016 and from the prescription slip dated 22.5.2016, it is found that the baby was suffering from constipation and pain in abdomen, for which he was given syrup duphala and drops colimex for gas and abdomen pain. However, at this juncture also, there is nothing on record that any test to diagnose as to why the baby was suffering from constipation and abdomen pain or nasal stiffness, was carried out by the appellants. It is significant to mention here that appellant no.2 is a well reputed doctor and once, he had received huge amount of fees from the appellants, he was duty bound to conduct the medical tests etc. to diagnose with what disease baby Ashmeet was suffering from, which resulted into rashes in anal region, nasal stiffness, constipation and abdomen pain. However, instead of conducting any tests, he prescribed nasal drops, then a test for jaundice and then some anti-gas medicine even on 22.5.2016, itself shows that the matter was taken carelessly, especially, when he was aware that the baby also showed nasal stiffness on the very first day i.e. on 12.03.2016. Had some tests as per medical science been conducted, the disease i.e. congenital cyanotic heart disease, which was later on diagnosed by the PGIMER (though at belated stage which led death of the baby) could have easily been determined and then corrective surgery could have been performed by the appellants. If appellant no.2 was not a Pediatric cardiologist, yet, he could have conducted tests and after detailed investigation, the baby could have been referred to some Pediatric cardiologist but he miserably failed to perform his duties. A very young baby like the baby of respondents no.1 and 2 is not able to tell either his parents or the doctors as to what sort of health problems relating to nasal stiffness, constipation and abdomen pain, he is suffering. Had any test been conducted by the appellants, they would have easily diagnosed, as to why the baby was suffering from nasal stiffness and abdomen pain. The only means to get the same checked was the tests/x-ray of the relevant parts of the body of the baby but the appellants took that symptoms lightly and on the other hand, anti-gas medicine, drops and vitamins were prescribed. Even simple x-ray was not carried out by the appellants, of the baby, when they came to know that the baby was suffering from nasal stiffness, constipation and abdomen pain.
The appellants also cannot wriggle out of the situation by saying that the parents of the baby did not apprise any fast breathing, especially in the face of the fact that the appellants themselves have noted that the baby was suffering from nasal stiffness. Even otherwise, it was appellant no.2 who was to examine the baby , when he came to know that the baby was suffering from nasal stiffness followed by gastric problem and abdomen pain. He failed to apply the professional skills which he was possessed in the field of Pediatrics. It is very strange that the doctor from the PGIMER on examination of the baby, diagnosed the disease as congenital cyanotic heart disease, whereas, on the other hand, appellant no.2, who had charged the amount towards fees from respondents no.1 and 2 and is also an experienced Child and Newborn Specialist), failed to diagnose this disease and even did not think it proper to conduct any tests/x-rays. This itself shows that medical negligence on the part of appellants is writ large. It is a case, wherein, the appellants though possessed of the requisite skill which he professed, but failed to exercise the same, with reasonable competence. The District Commission was also right in holding so.
During the course of arguments, it has also been brought to our notice that respondents no.1 and 2 have concealed the fact that they got registered the date of birth of the baby with the Health and Family Department, Govt. of Punjab, subsequently on 02.03.2016, vide birth certificate, Annexure C-1 i.e. after 04 days of his actual birth dated being 27.02.2016. It may be stated here that though this act of respondents no.1 and 2 are not appreciable, yet, this fact neither dilutes nor condones the act of medical negligence, discussed above, on the part of the appellants. As such, no help can be drawn by the appellants on this ground, to defeat the claim of respondents no.1 and 2.
In our considered opinion, since there is no error on the part of the District Commission, in deciding other issues raised by the parties, as such, the findings given in the order impugned did not need any interference of this Commission. Thus, the order impugned stands upheld. Resultantly, this appeal being devoid of merit is dismissed with no order as to cost.
Certified copies of this order be sent to the parties, free of charge.
The concerned file be consigned to Record Room, after completion.
Pronounced 04.02.2022 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Sd/-
(RAJESH K. ARYA) MEMBER Rg.