State Consumer Disputes Redressal Commission
Union Of India Through The Secretary To ... vs Sohan Lal Sharma on 4 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR-37A, CHANDIGARH
First Appeal No. 1616 of 2007
Date of institution: 17.12.2007
Date of decision: 4.5.2012
1. Union of India through the Secretary to Govt. of India, Ministry of
Defence, Central Secretariat, South Block, New Delhi.
2. Dr. Arvinder Kaur, Medical Officer, Ex-Servicemen's Contributory Health
Scheme Polyclinic, Jalandhar (Pb.).
3. Officer Incharge, Ex-Servicemen's Contributory Health Scheme
Polyclinic, Jalandhar (Pb.).
4. Dr. Yogesh Sharma, A.M.C. Classified Specialist, Surgery & Orthopedic,
Command Hospital (W.C.), Chandimandir, near Chandigarh.
.....Appellants
VERSUS
Sohan Lal Sharma, retired Master Warrant Officer, S/o Lt. Sh. Jagdish Ram, H.
No. 2502, Jawahar Nagar, PO Adampur, Doaba, District Jalandhar.
.....Respondent
First Appeal under Section 15 of the Consumer
Protection Act, 1986, against the order dated
23.10.2007 passed by the District Consumer
Disputes Redressal Forum, Jalandhar.
Before:-
Hon'ble Mr. Justice S.N. Aggarwal, President.
Mr. B.S. Sekhon, Member.
Present:-
For the appellant : Sh. G.C. Babbar, Advocate
For the respondent : Sh. Munish Goel, Advocate
BALDEV SINGH SEKHON, MEMBER
This is an appeal against the order dated 23.10.2007 passed by the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter called as the First Appeal No. 1616 of 2007 2 "District Forum") vide which the complaint of the respondent was partially allowed.
2. Briefly stated, the facts of the case are that Sh. Sohan Lal Sharma, complainant-respondent is an Ex-serviceman and retired Honorary Flying Officer of Indian Air Force w.e.f. 31.3.1992. The Govt. of India has launched a scheme known as "Ex-Servicemen Contributory Health Scheme" (for short "ECHS") for medical treatment and care of retired defence personnel. The respondent was duly enrolled under the said scheme.
3. It was pleaded that the respondent was suffering from disease of both the knee joints, therefore, he presented himself for medical treatment before Dr. Arvinder Kaur, Medical Officer, ECHS Polyclinic, Jalandhar. The respondent was found to be suffering from Osteo Arthritis (in short "OA") of both the knees and was referred to ECHS empanelled hospital by the Surgeon concerned and was advised to go to ECHS Polyclinic, Western Command, Chandimandir for onward reference to the empanelled hospital vide note dated 21.3.2006. Accordingly, the respondent hired the services of Medical Officer, Command Hospital, ECHS Polyclinic, Chandimandir for getting the reference note countersigned for the purpose of his medical treatment from empanelled hospital under the said scheme. However, Dr. Yogesh Sharma, Classified Specialist, instead making reference to empanelled hospital, recorded a note on the OPD Card of the respondent as "OA both knees with marked varus deformity. This surgery can be done at the CH (WC) subject to the availability of implants."
4. It was pleaded that below this note, the same Doctor recorded the following medical opinion:-
"OC Exercise Wt. Reduction Work up for TKR"First Appeal No. 1616 of 2007 3
5. It was pleaded that Doctors of Command Hospital, Chandimandir deliberately failed to discharge the obligatory function for medical treatment and care of the respondent who had hired their services being member of the ECHS.
6. It was further pleaded that, under most emergent and compelling circumstances, as the respondent was in acute physical and mental pain, he got himself medically treated during the period 27.3.2006 to 9.7.2006 for replacement of both his knees at a private hospital named Apex Hospital, Mohali. The respondent spent a sum of Rs. 5.0 lacs on surgery besides Rs. 1.0 lac on the medicines, nutrients and expenses on the attendants etc.
7. The respondent submitted a representation dated 15.5.2006 to Managing Director, ECHS Delhi Cantt. and others against the refusal by Dr. Yogesh Sharma but Sh. V.K. Dua, Lt. Gen. retired, Consultant ECHS, Delhi Cantt. signed a vague and criptic reply on 12.6.2006 rejecting the request of the respondent to refer his case to private hospital. Hence the complaint before the District Forum seeking directions to the appellants to pay compensation to the respondent to the tune of Rs. 16.0 lacs with interest @ 18% per annum.
8. Upon notice, the appellants filed a written statement in which it was stated that the ECHS was launched by Ministry of Defence on 1st April, 2003 and the same is governed by the policy, rules and regulations promulgated by the Ministry of Defence. One time registration fee is deposited by the members (Ex- Servicemen/Pensioners) and the financial support for handling the scheme is allocated by the Government.
9. It was pleaded that any complaint by ECHS member is not covered by the section 2(O) of the Consumer Protection Act, 1986. It was, however, admitted that the respondent was the member of the said scheme and he was also entitled to medical aid but the conditions to provide medical aid to the respondent are laid down by the Ministry of Defence and is contractual between the respondent and the appellants.
First Appeal No. 1616 of 2007 4
10. It was also admitted that the referral at ECHS Polyclinic, Jalandhar Cantt. was made as per policy laid down by the Ministry of Defence. However, Lt. Col., Yogesh Sharma decided to carry out knee replacement (TKR surgery) at Command Hospital, Western Command, Chandimandir as the requisite infrastructure and expertise were available. Meanwhile, Dr. Sharma advised quadriceps exercise, weight reduction and work up for TKR as a preparatory requirement for favourable outcome of surgery. It was pleaded that the Dr. Yogesh Sharma had carried out his obligatory duties as per policy laid down by deciding to operate at CH (WC), Chandimandir and not to refer the patient to empanelled hospital. The service specialist cannot refer the case to empanelled hospital for which the facilities are available at the hospital as per laid down policy. Hence, the request of getting direct referral to empanelled hospital is against the laid down policy and it was correctly denied to the respondent.
11. It was further pleaded that the OA is a chronic degenerative disease of joints having prolonged course of illness. It routinely does not cause acute illness. It was denied that there was any acute physical and mental illness in case of OA which is routinely an elective process.
12. It was further pleaded that there was no negligence pertaining to the medical treatment to the respondent and he was offered standard and professional treatment in the form of surgery quadriceps exercise, weight reduction and work up for TKR surgery at CH (WC), Chandimandir. The respondent, of his own, had opted for treatment at a private hospital against the medical advice of service specialist on wrong plea of acute physical and mental pain. The respondent ignored the advice of the service specialist and did not pay a second visit for further advice for treatment in case of any doubt.
13. It was further stated that the Lt. Gen. V.K. Dua, Consultant, ECHS has replied to the representation of the respondent dated 15.5.2006, in a very clear manner without using any ambiguous word as under:-
First Appeal No. 1616 of 2007 5
"Your case has been examined. You had been referred to surgical specialist, as per laid down ECHS procedures. The opinion of surgical specialist has to be honoured. Out sourcing to private empanelled hospital is not permitted for facilities available in service hospital. You may please appreciate that ECHS is a public funded scheme & has to abide by Government stipulation"
14. Dismissal of complaint with special cost was prayed.
15. The parties led their evidence by way of affidavit and documents.
16. The learned District Forum after going through the pleadings of the parties and evidence on record partially accepted the complaint of the respondent and the appellants were directed to pay Rs. 2,20,000/-, in all, to the respondent.
17. Aggrieved by this order, the appellants have come up in appeal.
18. The learned counsel for the appellants submitted that an Ex-serviceman, being member of the Contributory Health Scheme, can avail a medical facility with the Army Hospital and in case the treatment is to be taken from a private hospital he has to be referred by the Army Hospital. He cannot get the treatment at his sweet will from the private hospital. It was further submitted that in the present case, the respondent was referred to the Command Hospital for his knee replacement where Lt. Col., Yogesh Sharma, after investigation, diagnosed "OA both knees, with marked varus deformity" and further observed that this surgery can be done at CH (WC) subject to availability of implants. Dr. Yogesh Sharma further advised the respondent for preparatory exercises. The respondent straightway went to the Apex Hospital in Mohali and got his treatment without getting the reference of the Army Hospital whereas the facility of the TKR was available in the Command Hospital itself. As per the policy of the Government no person can take treatment from a private hospital of his own and in such case no imbursement was admissible.
19. It was further submitted that the District Forum has taken the view that Dr. Yogesh Sharma has not mentioned any specific date for replacement operation First Appeal No. 1616 of 2007 6 which constitutes negligence. This is contrary to the actual position. Dr. Sharma had to fix the date for replacement of knee after making available the implant and further the patient had to be made ready for such operation. Therefore, he was advised exercises; however, the respondent did not follow the advice of the Doctor nor he visited the Command Hospital and instead straightway got treatment from private hospital for which reimbursement is not admissible under the scheme. Acceptance of the appeal was prayed.
20. The learned counsel for the respondent submitted that there is no merit in the appeal and same may be dismissed.
21. Submissions have been considered, record has been perused.
22. The admitted facts of the case are that the respondent was a member of the ECHS and he contacted ECHS Polyclinic at Jalandhar Cantt for treatment as he was suffering from OA of both knees and Dr. Arvinder Kaur referred his case to the ECHS Polyclinic, Chandimandir on 21.3.2006 for referring to private empanelled hospital where Lt. Col., Dr. Yogesh Sharma, Classified Specialist Surgery and Orthopedics, did not make reference for treatment of the respondent to a private empanelled hospital. Instead he observed on 25.3.2006 as under:-
"OA both knees with marked varus deformity. This surgery can be done at the CH (WC) subject to the availability of implants."
Dr. Yogesh Sharma further advised the respondent as under:-
"OC Exercise Wt. Reduction Work up for TKR"
23. However, the respondent directly went to Apex Hospital, Mohali for treatment of his knees during the period 27.3.2006 to 9.7.2006 for replacement of both his knees without any reference from the ECHS Polyclinic.
24. No doubt the respondent is a member of the ECHS and is entitled to get treatment at a Military Hospital or at a private empanelled hospital in case the facility is not available at the concerned hospital, as per the terms and conditions First Appeal No. 1616 of 2007 7 laid down in the scheme, but the respondent, instead of following the advice of Classified Specialist, got himself treated from a private hospital of his own. The appellants have proved on record the procedure for payment and reimbursement of medical expenses under ECHS as Ex.O2.
25. As per Ex. O-2, the relevant provision relating to the payment by ECHS to the empanelled hospitals, nursing homes and diagnostic centres will be governed by the following procedures:-
"EX-SERVICEMEN CONTRIBUTORY HEALTH SCHEME (ECHS) PROCEDURE ON PAYMENTS AND REIMBURSEMENTS FOR MEDICAL EXPENSES AUTHORIZATION
1. The authorization for payments to empanelled Hospitals, Nursing Homes, Diagnostic Centres and re-imbursement of medical expenses to Ex-Servicemen is as per para 2(j) of Govt. of India letter No. 22(1)/01/US(WE)/D(Res) dated 30 Dec. 2002. REFERRAL TO HOSPITALS
2. Military Stations: Ex-Servicemen (ESM) and their dependents requiring hospital admission will, in normal course, be referred to Service hospitals, in the station. For this purpose Director General, Armed Forces Medical Services (DGAFMS) will earmark a suitable proportion of beds in all Service hospitals for ECHS beneficiaries (except during war/operational commitments). In case of non-availability of beds/facilities in service hospital, patients will be referred to empanelled hospitals for admission.
3. Non Military Stations: In non-military stations, ESM and their dependents will be referred to nearest service hospital/empanelled hospitals by Medical Officer of ECHS Polyclinic. PAYMENT TO EMPANELLED HOSPITALS/NURSING HOMES/ DIAGNOSTIC CENTRES.First Appeal No. 1616 of 2007 8
4. The payments by ECHS to the empanelled Hospitals, Nursing Homes and Diagnostic Centres will be governed by the following procedure:-
(a) Referral to Empanelled Hospital/Nursing Home/Diagnostic Centre:
Payment of bills to empanelled concerns will only be authorized when patients are referred from ECHS Polyclinic for necessary treatment/investigation. Hospitals will only treat patients for conditions for which they have been specifically referred from the ECHS Polyclinic, except in life saving emergency situations.
X X X X X X X X
8. EMERGENCY TREATMENT:
In emergencies and life threatening conditions, when patients may not be able to follow the normal referral procedure, the patients may report to the nearest hospital, preferably empanelled.
(a) Empanelled Hospital: Immediate emergency treatment in any empanelled hospital will be rendered to ESM on confirmation of ECHS membership from the ECHS card. Payment for such treatment will be regulated as under:-
(i) Empanelled hospital will inform ECHS Polyclinic about the emergency admission at the earliest but not later than 24 hours.
(ii) The empanelled hospital will not allowed payment from ECHS member.
(iii) The actual cost incurred for emergency procedure will be payable by ECHS. Bill for emergency treatment will be forwarded to concerned Polyclinic for payment as per normal procedure. Such bills will be superscribed with 'EMERGENCY TREATMENT' written in Block capitals in Red.First Appeal No. 1616 of 2007 9
(iv) On learning about admission of an ECHS member in en Empanelled hospital, the O I/C Polyclinic will make arrangements for verification of the facts.
(v) If, during the course of investigations/treatment a specific-
diagnosis is established requiring further management, the facts will be verified by concerned O I/C Polyclinic and the patient referred for the same formally.
(vi) In case of malpractice, unethical practices or medical negligence by an empanelled hospital or nursing home particularly in management of emergencies necessary action will be taken by the Station Commander to dis-empanel the Hospital or Nursing Home."
26. Admittedly Jalandhar as well as Chandimandir are Military Stations. The treatment to respondent was admissible only when beds/facilities are not available in service hospital and that too against specific reference as per para 2 of the procedure. Further para 4 (a) lays down that, payment of the bills to the empanelled hospitals will only be authorized when patients are referred from ECHS Polyclinics for necessary treatment/investigation and hospitals will only treat patients for conditions for which they have been specifically referred from the ECHS Polyclinic. In the instant case, the respondent was initially referred to ECHS Command Hospital, Chandimandir but the Classified Specialist Surgeon, Dr. Yogesh Sharma at Command Hospital did not make any reference for treatment of the respondent to any empanelled hospital on the ground that the same facility was available in the Command Hospital. Instead the respondent was advised to OC exercise, weight reduction and work up for TKR.
27. As per the representation submitted by the respondent to the Managing Director, ECHS (Ex. C-17), the respondent has mentioned that he met Dr. Yogesh Sharma on 25.3.2006 and that Dr. Yogesh Sharma did not sign the referral for the treatment in the empanelled hospital. Thereafter, the respondent did not return to First Appeal No. 1616 of 2007 10 the Command Hospital, at all, either to enquire about the availability of the implants or further follow up treatment. The respondent has himself mentioned in his representation that when he met the Surgical Specialist, Lt. Col. Dr. Yogesh Sharma on 25.3.2006, he declined to send him to only empanelled hospital at Mohali i.e. Fortis Hospital and gave negative remarks on referral form itself. But surprisingly, the respondent, 2 days later on 27.3.2006, got himself admitted in Apex Hospital, which was not even an empanelled hospital, without any referral from the ECHS Polyclinic. This action of the respondent is not only violative of the provisions of the scheme but also contrary to advice of the Classified Specialist.
28. Even in emergency treatment, as per clause 8 (a), it has been stipulated that treatment in any empanelled hospital will be rendered to ESM on confirmation of ECHS membership from the ECHS card. The payment of such treatment will be regulated as under:-
"(i) Empanelled hospital will inform ECHS Polyclinic about the emergency admission at the earliest but not later than 24 hours."
However, in the present case, there is neither any referral from the ECHS Polyclinic to the empanelled hospital nor the concerned hospital has informed the ECHS Polyclinic about the emergency admission. In fact, no such emergency situation arose because OA is a chronic degenerative disease having prolonged course of illness. It routinely does not cause acute illness. Moreover no certificate of emergency treatment has been produced on record.
29. It has also stipulated that in case Ex-Serviceman or his representative is treated at empanelled hospital he or his representative should inform nearest Polyclinic within 48 hours of such admission. But no such intimation was given by the respondent or his relative. The respondent made a representation to the Managing Director, ECHS on 15.5.2006 against non referring to the empanelled hospital by Dr. Yogesh Sharma.
First Appeal No. 1616 of 2007 11
30. Thus, the respondent has not only violated the terms and conditions of the ECHS but has also ignored the advice of the Surgical Specialist of the Command Hospital. Moreover, he of his own got the treatment from the non-empanelled hospital without any emergency conditions.
31. Benefits from a Contributory Health Scheme can be availed by the member patient only as per the policy laid down and not as per his personal choice. A patient cannot dictate terms to an authorized Classified Surgical Specialist to act in a particular manner. Therefore, appellants are not liable to reimburse any amount to the respondent for the treatment taken by him from an unauthorized hospital.
32. In view of the above discussions and findings, the appeal of the appellants is accepted and the impugned order of the District Forum is set aside.
33. The appellants have deposited an amount of Rs. 25,000/- with this Commission at the time of filing of the appeal. This amount alongwith interest, if any, be remitted to the appellants by way of draft after 45 days.
34. The arguments in this case were held on 26.4.2012 and the order was reserved. Now, the order be communicated to the parties.
35. The appeal could not be decided within the statutory period due to heavy pendency of the court cases.
(JUSTICE S.N. AGGARWAL) PRESIDENT (BALDEV SINGH SEKHON) MEMBER May 4, 2012 Vinay