State Consumer Disputes Redressal Commission
Karan Kaushik vs Dr. S.C. Pandhi on 18 July, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
(Consumer Complaint No.3 of 2009)
Date of Institution
:
29.01.2009
Date of Decision
:
18.07.2011
Karan Kaushik son of Sh. Mohinder
Kaushik, House No.3031, Sector 23D, Chandigarh
Complainant.
V e r s u s
1.
Dr.
S.C. Pandhi, Pandhi Hospital, #1151, Sector 36-C (Near Attawa Chowk),
Chandigarh.
2.
Pandhi
Hospital, through Dr. S.C. Pandhi, #1151, Sector 36-C (Near Atawa Chowk),
Chandigarh.
3.
M/s
Oriental Insurance Co. Ltd. SCO 99-100, Sector 17-B, Chandigarh,
....OPs
Complaint under Section 17 of the Consumer Protection Act,
1986.
BEFORE: HONBLE MR. JUSTICE SHAM SUNDER, PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
S. JAGROOP SINGH MAHAL, MEMBER.
Argued by: Sh.
Anil Bhardwaj, Adv. for the complainant.
Sh.
V.K. Sachdeva, Adv. for OPs 1 & 2.
Sh.
Jagtar Kureel, Adv. proxy for Sh. D.P. Gupta, Adv. for OP-3.
PER JAGROOP SINGH MAHAL, MEMBER Succinctly put, on 4.2.2008 the complainant approached the OP-1 in his hospital (OP-2) for treatment of Bilateral Max Sinusitis and told him that he needed the treatment as he had applied for conversion of his license of Commercial Pilot issued by the United States of America to that of Indian Licence and that he was declared temporarily unfit class-I medical assessment on initial issue of CPL for eight weeks on account of Bilateral Max Sinusitis and was advised to undergo FESS by the Medical Examiner, Sh. R.K. Ganjoo, Air Cmde, AFCME, New Delhi. However, instead of giving the treatment of FESS, OP-1 stated that Septoplasty open LA was required. The complainant, being layman, could only understand that the doctor was doing the same treatment as had been advised by the Air Force Authorities. The OP-1 kept on prescribing medicines/tests from 4.2.2008 to 11.2.2008 on which he spent around Rs.15,000/- and kept on visiting the OPs 1 & 2. The OPs performed the Septoplasty open LA on 15.2.2008 and discharged the complainant in the evening on the same day. Upon the OPs advice, the complainant consulted them regularly and took the medicines/treatment upto 26.2.2008. However, on 26.2.2008 the complainant was told that due to the operation performed by them, septal perforation had occurred in his nose due to which he could be declared permanently unfit for getting Indian License for commercial pilot and the OPs further expressed their inability in treatment of the complainant. Thereafter the complainant approached the PGI, Chandigarh, Ganga Ram Hospital and Indraprashta Apollo Hospital, New Delhi but he was told that the required operation of FESS was not done and despite their best efforts the perforation could not be covered up. It has been alleged that due to the acts of the OPs 1 & 2, the complainant had to suffer financially as well as face a lot of mental and physical harassment. Hence this complaint claiming Rs. 22.00 lacs as expenditure spent on training for a Commercial Pilots Licence, Rs.2.00 lacs spent on treatment, Rs.18 lacs for physical and mental pain and Rs.54.00 lacs for the loss of a bright career in which the average salary was Rs.1.5 lakh per month.
2. The OPs 1 & 2 in their written reply admitted that the complainant, alongwith his father, approached them on 4.2.2008 for the treatment. However, it has been denied that the complainant told them that he needed treatment of Bilateral Max Sinusitis for conversion of licence of Commercial Pilot issued by United States of America to that of Indian Licence; or that the complainant told OP-1 that he was advised to undergo FESS by the Medical Examiner and that Septoplasty was not required. It has been submitted that the complainant was advised the treatment after his comprehensive medical diagnosis and he was advised the best possible treatment, recognized and approved internationally, for such type of patients. It has been stated that Septoplasty was advised on the basis of symptoms of the complainant as at that time he was suffering from DNS. It has been stated that the Septoplasty was successfully done on the complainant on 15.2.2008 and he was asked to come up on 17.2.2008 for the removal of nasal packs, which was done on that day. It has been denied that the OPs expressed their inability to treat the complainant.
It has been vehemently denied that the perforation was caused by their negligence. Denying all the material allegations of the complainant and pleading that there was no deficiency in service and unfair trade practice on their part, prayer for dismissal of the complaint has been made.
3. OP-3 in their separate written reply at the outset took preliminary objection that under the policy the maximum amount which they had undertaken to indemnify was Rs.20.00 lacs and thus no amount, beyond that, could be fastened upon them. On merits OP-3 by pleading that the best treatment was given to the complainant and that there was no negligence on the part of OP-1, also prayed for dismissal of the complaint.
4. We have heard the ld. Counsel for the parties and have gone through the evidence on record of the case carefully.
5. The ld. Counsel for the OPs has argued that the OP-1, Dr. S.C. Pandhi is a famous doctor having good experience in treating his patients; he tried his level best to treat the complainant but if the things went wrong, he cannot be held liable for that. The ld. Counsel referred to the case Jacob Mathew Vs. State of Punjab & Anr.-(2005) 6 SCC 1. It was a case under Section 304A IPC in which the death occurred due to the reason that oxygen cylinder, which was connected to the mouth of the patient, was empty. There was no other gas cylinder available in the room of the patient. In that case, the Honble Supreme Court held that the jurisprudential concept of negligence differs in civil and criminal law because what may be negligence in civil law, may not necessarily be negligence in criminal law. It was held that a professional may be held liable for negligence if either he was not possessed of the requisite skill which he professed to have possessed or he did not exercise with reasonable competence in the given case the skill which he did possess. The ld. Counsel then referred to the case Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre and Ors.-2010 INDLAW SC 139. In that case, the deceased died due to post operative complications. The relatives of the deceased had contended that a vital organ of the deceased was injured during surgery which led to his death. The Honble National Commission, before which the consumer complaint was filed, however found that the operation was successful and the injury contended by the appellants was superficial and same had been repaired. The doctor who performed the operation had reasonable degree of skill and knowledge and, therefore, by any stretch of imagination, could not be held guilty of negligence. It was held that the appellants had failed to make any case for medical negligence and the complaint was accordingly dismissed. The Honble Supreme Court held that the medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care and he would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. It was also held that negligence cannot be attributed to a doctor so long as he performs his duty with reasonable skill and competence and merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. The order of dismissal passed by the Honble National Commission was accordingly maintained. In case Ins. Malhotra Vs. Dr. A. Kriplani & Ors.-2009 INDLAW SC 361, the patient was having kidney failure and chronic renal failure for which she was properly treated by the doctor. It was not proved that the doctors were not qualified and specialist in their respective fields to treat the patient who they agreed to treat.
It was held that no case of medical negligence was made out.
6. The ld. Counsel also cited the case of Uma Mansingka & Anr. Vs. Dr. Vijay Bathwal-2010 INDLAW NCDRC 243.
In that case, the allegation that the doctor had undertaken the SMR operation and not polypectomy and in that process his instruments have entered in the surrounding areas of the skull which was the main cause of the CFS leak was not proved. In the absence of expert evidence, the doctor applying polypectomy was held not to be negligent. The next case cited by the ld. Counsel is Manager/Management, St. Stephens Hospital, Delhi Vs. Manohar Lal Thakur-2010 INDLAW NCDRC
266. In that case the patient was 45 years old and developed prostrate enlargement, which normally occurs in the age group of 60 plus. The medical specialist after considering all aspects of the case, decided that surgery at his age should be avoided. It was held by the Honble National Commission that the doctor could not be held guilty of medical negligence merely because he pursued a particular line of treatment which was different from the one adopted in treating his case in another hospital. The doctor had given detailed and credible reasons before the District Forum as to why the medical specialist, after due consideration of all relevant factors and clinical tests decided to treat him conservatively. In case Dr. Kamal Kishore Vs. Escorts Heart Institute and Research Centere-2010 INDLAW NCRDC 45 also, the doctor was found to have treated the patient with best of his skills and there was no negligence found on his part. In case Pawan Kumar Jain Vs. Dr. J.K. Jain & Ors.-2010 INDLAW NCDRC 44, the deceased died due to malaria, he had not told the doctor about his malaria disease when he was being treated for the fracture of his ankle. There was no evidence to suggest that he died due to wrapping of plaster. The relatives of the deceased had given three different versions before three different Forums namely the Criminal Court in the criminal case, Human Rights Commission and the Consumer Disputes Redressal Commission. In that case also, the doctor was not found to be negligent.
7. We would now examine the present case in the light of the law laid down by the Honble Supreme Court and followed by the Honble National Commission in the above mentioned cases.
8. Annexure C-1 is the medical certificate issued by the Civil Aviation Department of Govt. of India certifying that the complainant had undergone a medical examination for initial of Licence and was found temporarily unfit on account of Bilateral Max Sinusitis. He was advised to undergo FESS and was directed to come back for review with certificate of cure. This certificate was issued by R.K. Ganjoo, Air Cmde, AFCME, Subroto Park, New Delhi. The complainant got the X-ray done from Shamer Singh Memorial Radio-Diagnostic Center report of which is Annexure C-2. The X-ray skull Waters view showed that soft tissues were normal, nasal septum was in midline and both maxillary frontal ethomoidal and sphenoidal air sinuses were normal. The impression of the doctor was that it was a case of normal study but it was to be correlated clinically. In view of these two reports the complainant approached the OPs on 4.2.2008.
In the history the OPs mentioned that (the patient was) rejected by a medical board for DNS left & sinusitis, history of sneezing. On examination it was observed that DNS left mild mid part, pale red nasal cavities/congested nasopharynx/oropharynx, I/L nil Significant and ears T.M. normal Mobile B/L. The main prescription shows that X-ray DNS Waters view was seen by the OP doctor and he diagnosed the disease as DNS (Deviated Nasal Septum). The first question would be whether the diagnosis done by the OPs was correct and based on clinical tests or it was incorrect.
9. The ld. Counsel for the OPs has argued that in fact Annexure C-1 was not produced before him by the complainant and, therefore, he was not aware of the previous diagnosis. We do not find any merit in this argument. The complainant is about 21 years old. According to him he had obtained a Commercial Pilots licence from USA and wanted to get it converted to Indian standards. He had been declared temporarily unfit and a certificate Annexure C-1 had been issued to him. He had gone to the OPs for his treatment so that he becomes fit to get the licence endorsed. We cannot accept the contention of the OPs that the complainant would not show Annexure C-1 to the OPs to whom he was approaching for the treatment of the problem to clear the said medical test. Moreover, the OPs had themselves mentioned that the complainant was rejected by a medical board for DNS. If the certificate (Annexure C-1) was not shown to the OPs, they would have insisted for the proof of rejection from the complainant and would not have mentioned this fact in the history in the absence of the rejection certificate.
It is, therefore, a false contention made by the OPs that Annexure C-1 was not shown to them.
10. The x-ray skull Waters view report (Annexure C-2) shows that nasal septum was in the midline. The OPs did not get any CT scan or any other test conducted to assess that it was a case of deviated nasal septum. The complainant had already undergone a medical examination in the Civil Aviation Department and the certificate (Annexure C-1) also did not show if it was a case of deviated nasal septum. Their diagnosis was that it was Bilateral Max Sinusitis. When the complainant got himself treated in the Indraprashtha Apollo Hospital, who issued the discharge summary (Annexure C-8), the diagnosis mentioned was Bilateral Max Sinusitis with septal perforation. Under the heading Investigation, it is mentioned that PNS showed lobulated mucosal thickening in bilateral maxillary sinus. The discharge report (Annexure C-10) also shows that right side polyp removed from bilateral ethmoidsinus, maxillary sinus ostium identified bilateral and widened and B/L maxillary sinuses cleaned. Again in Annexure C-11, it is mentioned that circumferential mucosal thickening was seen in bilateral maxillary sinuses with obliteration of both ostio-meatal complexes. On what basis the OPs reached the conclusion that it was a case of DNS is a mystery.
All the doctors in their separate examinations of the patient found him to be suffering from Bilateral Max Sinusitis. If the OP had the skill of a normal physician, he would also have reached the same conclusion. We are, therefore, of the opinion that the OPs were negligent firstly in not getting the CT scan conducted and secondly by ignoring Annexure C-1, they gave a wrong diagnosis of DNS and consequently wrong treatment was started which shows that OP-1 either did not have the skill to diagnose and treat the patient or he did not use the skill which he had.
11. The diagnosis of DNS was totally wrong is further proved from the fact that the complainant remained under the treatment of the OPs for a pretty long period but the sinusitis could not be treated. The Bilateral Max Sinusitis, with which the complainant was suffering, as per Annexure C-1, continued even after the full treatment given by the OPs because the said disease was not at all treated by OP-1
12. As per the treatment mentioned in Annexure C-1, the complainant was to undergo FESS. The OPs did not treat the complainant by FESS and rather wrongly diagnosed some other disease as DNS, for which he was operated. The earlier disease continued to exist and a new problem that of septal perforation was created by the OPs as is clear from Annexure C-8 to C-10.
The only conclusion is that the doctor did not have the skill to treat the complainant and, if he had, he did not utilize the said skill for the purpose for which the complainant had approached him.
The doctor would be, therefore, guilty of medical negligence as held in the cases of Jacob Mathew (supra) in which it was held that a professional may be held liable for negligence if either he was not possessed of the requisite skill, which he professed to have possessed or he did not exercise with reasonable competence, in the given case, the skill, which he did possess. In the case of Kusum Sharma (supra) also it was held that the medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care and he would be liable where his conduct fell below that of the standards of a reasonable competent practitioner in the field. No doubt it is not necessary that after the treatment the patient is cured completely but it was not such a disease of which the treatment was not possible. The cases referred to above by the ld. Counsel for the OPs were complicated for which the treatment could not have been possible at that stage when the patients approached the doctors for treatment. However, in the present case the complainant had approached at the initial stage. The treatment by FESS was possible but the OPs could not even diagnose the problem properly. He deviated from the previous diagnosis without any clinical tests and even without getting a CT scan conducted. The reason for deviation from previous diagnosis has not been given. When the diagnosis was wrong, the treatment obviously would be misplaced. So, the patient could not recover from the Bilateral Max Sinusitis because the OPs did not treat him for that disease and rather treated him for DNS with which he is not proved to have been suffering and the OPs created another problem for the complainant putting him out of job for his entire life.
It was, therefore, gross medical negligence on the part of the OPs and not a mere error of judgment.
13. Now the question arises as to why proper diagnosis could not be done and proper treatment could not be conducted by the OPs. Dr. S.C. Pandhi, complainant No.1 claims to be possessing M.S. degree and ENT surgeon. No document has been produced by the OPs to prove if Dr. S.C. Pandhi is a doctor or if he has M.S. degree and is ENT surgeon. The mere writing of these qualifications in the prescription slip (Annexure C-3) is not a proof of the same. It, therefore, shows that Dr. S.C. Pandhi did not have the skill to treat the patient but even in spite of that he undertook to treat him. It may be due to lack of skill that this doctor could not properly diagnose the problem. He did not even follow the treatment as advised through certificate (Annexure C-1). He did not even know that CT scan would be useful to properly diagnose the problem.
It was, therefore, a clear cut case of medical negligence.
14. Though the OP-1 has not proved his qualifications, yet presuming that he had the same, even then the medical negligence, as referred to above in proper diagnosing the problem; failing to follow Annexure C-1; reaching a conclusion that the complainant was suffering from DNS; even without getting the CT Scan, especially when the x-ray (Annexure C-2) was showing that the nasal septum was in midline, was a gross negligence on the part of the OPs. If the doctors, who examined the complainant and issued Annexure C-1 and C-8 to C-11, diagnosed the problem as Bilateral Max Sinusitis and not DNS, the OP-1, if he had utilized his skill as a normal physician, would have also correctly diagnosed the problem and treated him by FESS.
It may be mentioned that subsequently the complainant was treated by FESS firstly on 20.3.2008, as mentioned in Annexure C-8 and again on 15.9.2008, as is mentioned in Annexure C-10.
15. It is also argued by the ld. Counsel for the OPs that there is no proof if the complainant was holding a Commercial Pilots Licence issued by the United States of America or he had spent more than Rs.22.00 lacs on his training as mentioned in paras 9 & 10 of the complaint. It is true that the complainant has not produced his Commercial Pilots Licence nor produced any documents as to what amount was spent by him on his training, but Annexure C-1 shows that the complainant was having a Commercial Pilots Licence and for the conversion of the Licence, he had undergone a medical examination. The certificate mentions that he had asked for initial of CPL (i.e. Commercial Pilots Licence ).
16. Annexure C-14 is the medical certificate dated 15.5.2009 issued by the Civil Aviation Department showing that the complainant had undergone a medical examination for initial/issue of Licence and he had been found permanent unfit for flying due to septal perforation post traumatic (surgery).
Annexure C-15 is the information obtained under the RTI by one Mahavir Singh Phogat vide which he was informed by the Director General of Civil Aviation that post operative septal perforation of the nose is a cause of unfitness during Class I Medical Examination even if other parameters are normal. Since the complainant is not proved to be suffering from DNS, there was no need for Septoplasty. If Septoplasty had not been done, there would not have been septal perforation.
In this manner, due to the negligence of the OPs, the career of the complainant to get a Commercial Pilots Licence has been permanently sealed.
17. The authorities cited by the ld.
Counsel for the OPs, referred to above, therefore, do not help the OPs to hold that there was no medical negligence on their part.
18. It is true that the complainant has not produced any evidence about his having spent Rs.22.00 lacs in getting the training for a Commercial Pilots Licence, nor he has produced any evidence if he spent Rs.2.00 lacs for his treatment. The complainant has also claimed Rs.54.00 lacs for three years salary for the loss of a bright career in which the average salary was around Rs.1.50 lacs per month. He has also prayed for Rs.18 lacs for physical and mental pain. The facts of the case above fully prove that the treatment for which the complainant had approached the OPs was not accorded to him. Due to the negligence, the doctor created another problem for the complainant that of septal perforation, due to which he was permanently disabled from getting the Commercial Pilots Licence. The complainant had been getting the treatment from the OPs and thereafter from the PGI, Chandigarh and Indraprastha Apollo Hospital and obviously he had been spending money from his pocket on the said treatment. He can also be expected to have remained under physical and mental tension during this period for not being recovered and rather for aggravating his disease. Due to the wrong treatment given by the OPs, he has also lost his chances to get a Commercial Pilots Licence. We are, therefore, of the opinion that on account of all this, the complainant should get a compensation of Rs. Five lacs.
19. In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed. The OPs are, therefore, directed to pay, jointly and severally, to the complainant a sum of Rs. Five lacs as compensation alongwith Rs.10,000/- as costs of litigation within thirty days from the date of receipt of copy of this order, failing which they would be liable to pay the same alongwith interest @ 9% per annum, since the date of filing of the present complaint i.e. 29.1.2009 till the amount is actually paid to the complainant.
Copies of this order be sent to the parties free of charge.
Pronounced.
18th July, 2011 Sd/-
[JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Sd/-
[JAGROOP SINGH MAHAL] MEMBER hg