State Consumer Disputes Redressal Commission
Shree Sanatan Dharam Mahavir Dal ... vs Shiv Dial Singh on 30 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.520 of 2007
Date of institution : 10.4.2007
Date of decision : 30.5.2012
Shree Sanatan Dharam Mahavir Dal Hospital, Old Bus Stand, Bathinda
through its Secretary/Chairman.
.......Appellant
Versus
1. Shiv Dial Singh s/o Shri Lal Singh s/o Shri Budh Singh, R/o House
No.7339, Hajji Rattan Gate, Bathinda.
2. Dr. J.K. Gupta C/o Shree Sanatan Dharam Mahavir Dal Hospital, Old
Bus Stand, Bathinda.
...Respondents
First Appeal against the order dated 22.2.2007
of the District Consumer Disputes Redressal
Forum, Bathinda.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mr. B.S. Sekhon, Member.
Present :-
For the appellant : Shri Mukand Gupta, Advocate. For respondent No.1 : Shri Arun Kaundal, Advocate. For respondent No.2 : Shri Sandeep Suri, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
This order will dispose of two appeals, namely, First Appeal No.439 of 2007 (Shiv Dayal Singh v. Shree Sanatan Dharam Mahavir Dal Hospital and anr.) and First Appeal No.520 of 2007 (Shree Sanatan Dharam Mahavir Dal Hospital v. Shiv Dial Singh and anr.) as both these appeals are directed against the same impugned judgment dated 22.2.2007 passed by District Consumer Disputes Redressal Forum, Bathinda (in short "District Forum"). Facts are taken from First Appeal No.520 of 2007 and the parties would be referred by their status in this appeal.First Appeal No.520 of 2007. 2
VERSION OF RESPONDENT NO.1:
2. Shiv Dial Singh respondent No.1 (in short "the respondent") was resident of Bathinda. He was carrying on the business of Posis Maker. He was earning Rs.5,000/- per month. He was married and had four children.
3. It was further pleaded that in the month of April, 1997 the respondent was working in his workshop. He suffered a minor injury in his left eye.
After sometime the respondent felt some pain in the left eye. However eyesight of the left eye of the respondent was clear. He had only small pain in the left eye.
4. It was further pleaded that on 3.7.1997 the respondent visited the hospital of the appellants and got himself checked from Dr. Kataria who was working in the appellant Hospital. The respondent was advised x-ray from some private clinic. The respondent had got done x-ray from Dr. Walaiti Ram Bansal, Hospital Bazar, Bathinda. Thereafter he came to the appellant Hospital on 4.7.1997. He was again examined by Dr. Kataria and he had seen the x-ray report. Dr. Kataria had advised certain medicines to the respondent. The respondent purchased those medicines from the market and he was taking medical treatment as per the advice of Dr. Kataria. The respondent had spent more than Rs.1000/- on purchasing the said medicines.
5. It was further pleaded that the respondent continued taking medicines as per the advice of the doctors upto 13.10.1997. On that date i.e. on 13.10.1997 the respondent was told by the doctors that operation is required. The doctors of the appellant hospital got conducted some tests and thereafter on 18.10.1997 the operation on the left eye of the respondent was to be carried out by Dr. Ashok Sharma (who was impleaded in the complaint but his name was deleted vide order dated 1.9.2006). On the date of operation Dr. Ashok Sharma had gone somewhere else due to some telephonic message and he directed Dr.J.K. First Appeal No.520 of 2007. 3 Gupta respondent No.2 to conduct the operation and also gave necessary directions to Dr. J.K. Gupta for the said purpose.
6. It was further pleaded that the operation on the left eye of the respondent was conducted by Dr. J.K. Gupta. He had charged a sum of Rs.1200/- from the respondent and had given the receipt for Rs.700/- only. Dr. Gupta respondent No.2 had injected an injection in the left side of the head of the respondent at the time of operation. It had badly damaged the parda of the ear of the respondent and the respondent could not hear the voice.
7. It was further pleaded that the respondent got himself checked from Dr. Daljit Singh Dhillon and the respondent remained admitted under the medical treatment of Dr. Dhillon upto 27.10.1997.
8. It was further pleaded that on the next day of the operation Dr. Ashok Sharma came to the appellant hospital. He medically examined the respondent and advised the respondent to take medicines week after week for about six months but even after taking the medical treatment for such a long time, the respondent got no relief.
9. It was further pleaded that on 4.2.1998 the respondent had gone for further checkup to Dr. Daljit Singh Eye Hospital, Sheranwala Gate, Amritsar. The said doctor conducted x-ray and ultra-sound. He informed the respondent that due to the negligence of the doctors of the appellant Hospital damage has been caused to the reflector/parda and now it was very late and, therefore, the proper treatment could not be given to the respondent. If the respondent had come to him earlier some treatment could have been given. The prescription of Dr. Daljit Singh and ultra sound report were enclosed with the complaint.
10. It was further pleaded that on 29.5.1998 the respondent went to PGI, Chandigarh where the doctors told him that there was an injury in the left eye of the respondent. The said injury could not be repaired as it was very late. First Appeal No.520 of 2007. 4
11. It was further pleaded that due to the medical negligence, carelessness and deficiency in service, the respondent suffered a huge loss. His left eye has been completely damaged due to wrong injection in the ear of the respondent. The ear was also damaged. The respondent was unable to carry out his work although he had received the orders from the various concerns like Vardhman Polytex, Bathinda. The respondent has also suffered mentally and physically. Therefore he was entitled to Rs.70,000/- spent for medical treatment and transportation, Rs.1,00,000/- as compensation for the loss in business and Rs.2,00,000/- as damages for mental and physical harassment and Rs.1,00,000/- for harassment to the family members. Hence the complaint. VERSION OF RESPONDENT NO.2:
12. Dr. J.K. Gupta respondent No.2 filed the written reply. It was pleaded that the respondent had never consulted respondent No.2 for the injury of the eye although he was stating that he had suffered the injury in the left eye in April 1997. It was also pleaded that the respondent was thoroughly examined and investigated by Dr.Ashok Sharma on 17.10.1997. The respondent was admitted by Dr. Ashok Sharma in the appellant Hospital for free surgery for implantation of lens in the left eye and on 18.10.1997 Dr. Ashok Sharma was busy in other patients and he had requested respondent No.2 to conduct the operation of the respondent for cataract surgery and to implant an intirra ocular lens in the left eye of the respondent.
13. It was further pleaded that the respondent was well aware about the professional qualifications, experience, skill and competence of respondent No.2 and for that reason the respondent had volunteered for operation by respondent No.2. The operation of the left eye was conducted by respondent No.2 in good faith. Strict aseptic precautions were taken during the whole procedure. Injection Xyloquine with aderneline 4 ml was given to the respondent on the left side of the face of the respondent over the condyle of First Appeal No.520 of 2007. 5 mandible bone to block the temporo facial branch of facial nerve i.e. 7th cranial nerve so that the respondent does not close eye during the operation hours.
14. It was further pleaded that facial nerves had no connection with the ear and hearing and moreover the injection was given over the bone so there was no question of damage to the parda of the ear of the respondent which lay far away from the bone where the injection was injected. Rest of the anaesthesia and entire operation was conducted very carefully and cautiously by respondent No.2. Procedure was well tolerated by the respondent. At the end of operation, the respondent was having full hearing of the left ear and even during the operation hours the respondent had never complained of impaired hearing in the left ear. After that the respondent had walked himself to the ward. It was denied if any professional service charges were taken by respondent No.2 from the respondent or if any receipt was issued by respondent No.2 to the respondent.
15. It was also pleaded that in the prescription slip of Dr. Daljit Singh Dhillon, it was nowhere mentioned that there was any damage to the ear parda of the respondent leading to loss of hearing power or if it was due to the injection at the time of operation. It was denied if respondent No.2 had committed any medical negligence while operating the respondent or if there was any deficiency in service on the part of respondent No.2. Dismissal of the complaint was prayed.
VERSION OF THE APPELLANT HOSPITAL:
16. The appellant Hospital also filed the written reply. It was pleaded that the operation on the respondent was conducted by the doctor who was well qualified. It was denied if injury was caused at the time of operating the left eye of the respondent. It was a free eye camp and, therefore, no charges were paid by the respondent to any of the doctors or to the appellants. Dismissal of the complaint was prayed.
First Appeal No.520 of 2007. 6VERSION OF DR. ASHOK SHARMA:
17. Dr. Ashok Sharma also filed written reply. He also pleaded that the appellant hospital was a charitable Institution. The facts pleaded in the complaint were very clear. The respondent had come to free eye camp and got himself enrolled and operated. The appellant has not filed the record as demanded by Dr. Ashok Sharma.
18. It was admitted that Dr. Ashok Sharma was on leave as he had received an urgent message for his domestic work. Thus after 18.10.2010 he was on leave upto 23.10.1997 with effect from 19.10.1997. It was denied for want of knowledge if the respondent had got any consultation or medical treatment or any operation from any doctors. The appellant hospital is a Charitable Institution and respondent No.2 was in service. There was a free eye-camp in those days. It was denied if Dr. Ashok Sharma was liable in any manner. Dismissal of the complaint was prayed.
PROCEEDINGS BEFORE THE DISTRICT FORUM:
19. The respondent filed his affidavit Ex.C-1. He also proved documents Ex.C-2 to Ex.C-19. The respondent also filed his affidavit Ex.C-20. The respondent also filed documents Ex.C-21 to Ex.C-26. Dr. Amod Gupta, Professor & Head, Department of Ophthamology, PGI, Chandigarh has also appeared as a witness. He brought the original record and made a detailed statement. He was cross-examined at length by respondents No.2 and 3.
20. The appellant Hospital filed documents Ex.R-1 and Ex.R-2 while Dr. J.K. Gupta respondent No.2 filed his affidavit Ex.R-3. The appellant Hospital also filed Degree of Bachelor of Medicine & Bachelor of Surgery issued by Guru Nanak Dev University on 5.1.1978 to Dr. J.K. Gupta respondent No.2 as Ex.R-4 and the degree of Master's Surgery of Dr. J.K. Gupta respondent No.2 was proved as Ex.R-5. The appellants also proved documents Ex.R-6 to Ex.R-9. The appellant Hospital filed the affidavit of Raj Kumar son of Shri First Appeal No.520 of 2007. 7 Ralla Ram, Manager of S.S.D. Mahabir Dal Hospital, Bathinda as Ex.R-10 and the affidavit of Dr. J.K. Gupta respondent No.2 as Ex.R-11.
21. Learned District Forum partly accepted the complaint with costs of Rs.2000/- vide impugned judgment dated 22.2.2007 and the appellants were directed to make the payment of Rs.1,00,000/- to the respondent as compensation along with interest at the rate of 9% per annum.
22. Hence this appeal (FA No.520 of 2007) has been filed by the appellant- Hospital and it was prayed that the impugned judgment dated 22.2.2007 be set aside.
23. The respondent also filed appeal (FA No.439 of 2007) with the prayer that the appeal be accepted, impugned judgment dated 22.2.2007 be modified and the amount of compensation be enhanced.
DISCUSSION:
24. Record has been perused. Submissions have been considered.
25. Shiv Dial Singh respondent as per his own version had received injury in April 1997 in the left eye. He was medically examined by Dr. Kataria on 3.7.1997 and the respondent was advised to get the x-ray examination conducted. The respondent had got conducted the x-ray examination of the eye and had shown the same to Dr. Kataria on 4.7.1997 who was working in the appellant hospital. Thereafter the medicines were advised to the respondent and the respondent continued taking the medical treatment as advised to him by Dr. Kataria.
26. It was further pleaded that the respondent had come to the appellant Hospital on 13.10.1997. Some tests were advised to him. After watching the medical test reports it was suggested to the respondent that he needed operation of the left eye. On 18.10.1997 he was prepared by Dr. Ashok Sharma for operation. Said Dr. Ashok Sharma had to go out of station immediately and he was operated by Dr. J.K. Gupta respondent No.2. First Appeal No.520 of 2007. 8
27. As per the version of the respondent he had made the payment of Rs.1200/- to Dr. J.K. Gupta but the receipt for Rs.700/- only was issued.
28. The version of the appellants always was that the respondent had come in the free eye camp and he was operated free of charge. Moreover the appellant hospital was a charitable hospital. The respondent has produced one receipt issued by the appellant Hospital on 19.10.1997 Ex.C-6. This amount was charged by the appellant-Hospital for major/minor operation fee. Although it was mentioned on the top of the receipt dated 19.10.1997 that this amount of Rs.700/- was the costs of lens but since it was specifically mentioned that the fee was charged on account of major/minor operation fee, therefore, it is held that the respondent was the consumer qua the appellant Hospital.
29. The submission of the learned counsel for Shiv Dial Singh respondent was that since Dr. J.K. Gupta respondent No.2 or Dr. Ashok Sharma or the appellant Hospital had not got conducted the ultra-sound medical test before conducting the eye operated, therefore, doctors were not in a position to identify that some foreign material was lying in the left of the respondent. If Dr. J.K. Gupta respondent No.2 or Dr. Ashok Sharma or the appellant Hospital had conducted the ultra-sound examination then the case would have become clear to them and the foreign metallic body could have been taken out on 18.10.2007 itself and the respondent would not have suffered the loss of eyesight.
30. Important piece of evidence in this case is the statement of Dr. Amod Gupta who had appeared as a witness in this case. Dr. Amod Gupta was working as Professor and Head, Department of Ophthalmology, PGI, Chandigarh. He was well qualified and he had experience of more than 21 years after specialization in treating eye diseases. First Appeal No.520 of 2007. 9
31. He also deposed that Shiv Dial Singh had come to the PGI, Chandigarh on 24.2.1998. He was admitted as an indoor patient on 20.5.1998. He had undergone surgery for the removal of foreign body from the left eye and for reattachment of the retina of the left eye. This operation was performed by him on 29.5.1998.
32. He also deposed that during the operation, he removed Intra ocular lens and Pars Plana Vitrectomy. A foreign body was found in the left eye and it was removed. It was a metallic foreign body. The retina had remained attached for about two months. At that time, the eye sight was restored. It was less by 95%. It means that the eye sight was only 5%. The discharge booklet was also issued to the respondent. It contains correct record. The traumatic cataract was opacification of crystalline lens due to injury. Opacification means of loss of transparency. It means that the respondent cannot see effectively. He also recommended x-ray examination and ultrasonography of the eye to rule out the possibility of presence of foreign body in the eye in case of history of traumatic cataract. Ultrasonography was a proper method to detect such a foreign body in such a case and the doctors in PGI, Chandigarh rely upon this method mainly. If a metallic foreign body continuously remained in the eye, it would lead to toxicity of the iron in the eye and this ultimately leads to loss of vision. If such a iron foreign body is removed at the earliest it prevents toxicity in the eye.
33. During his cross-examination by the appellant and Dr. J.K. Gupta respondent No.2, Dr. Amod Gupta said that ultra-sound report conducted in PGI, Chandigarh on 15.4.1998 did not detect any foreign body. He also replied that he had operated the respondent for Vitreous haemorrage and retinal detachment. During this operation, a foreign body was located and removed. He also admitted that foreign body could not be located with ultrasonography before the operation was done. It was also admitted that in the presence of First Appeal No.520 of 2007. 10 cataract, foreign body may not be detected always if it was lying behind the lens. In this case the foreign body was lying on the retina. Therefore it could be seen only during the operation. It could not have been detected if he had been operating for the first time.
34. Therefore the statement of Dr. Amod Gupta totally rules out that if ultra-sound or ultrasonography could have been performed on the respondent in the first instance on 14.10.1997 the foreign material could have been detected.
35. There is no other evidence to prove if Dr. J.K. Gupta respondent No.2 of the appellant Hospital had committed any medical negligence while conducting the operation on 18.10.1997 in the free eye camp.
36. Moreover the respondent himself alleges that he had suffered the injury in April 1997 and he had gone to the doctor for the first time in July 1997. He again had gone to the doctor on 13.10.1997 when after getting the test conducted he was told that the operation was to be done on 18.10.1997.
37. It means, therefore, that on 18.10.1997 when operation was conducted almost six months had passed when the respondent had suffered an injury in the left eye in April, 1997. It could be possible that the metallic foreign body had gone deeper and it could not have been detected even if ultrasonography had been conducted on 13.10.1997.
38. It is very sad that Shiv Dial Singh respondent has lost the eye sight of the left eye but there is no evidence to hold the appellant hospital or Dr.J.K. Gupta responsible for committing medical negligence while operating the respondent on 18.10.1997.
39. The law has been settled by the Hon'ble Supreme Court in a number of judgments that the onus to prove medical negligence is on the respondent which he has to discharge like that of a criminal case. The onus to prove medical negligence is onerous as it is different from proving deficiency in First Appeal No.520 of 2007. 11 service which could be presumed even from the document or facts and circumstances of a case.
40. It was held by the Hon'ble Supreme Court in the judgment reported as "MALAY KUMAR GANGULY v. SUKUMAR MUKHERJEE (DR.) & ORS." III(2009) CPJ 17 (SC) as under:-
"35. Charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.
41. It was held by this Commission in the judgment dated 22.1.2008 passed in First Appeal No.1038 of 2000 "Partap Singh v. Sahib Nursing Home & Surgical Centre and others" that a doctor no doubt can play havoc with the life of another by medical negligence, but the doctor cannot be dubbed as negligent wherever the things go wrong because of God's will or for other factors. Finding fault with the doctor without any evidence would not only defame the medical profession which is otherwise very noble but the society will also lose the compassion of the saviour i.e. of the doctor who is considered next to God.
42. In this context, reference can be made to the recent judgment of the Hon'ble Supreme Court reported as "Martin F. D'souza v. Mohd. Ishfaq", 2009 CTJ 352 (Supreme Court) (CP) in which the Hon'ble Supreme Court was pleased to observe as under : -
First Appeal No.520 of 2007. 12
"41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another."
43. It was also held by the Hon'ble Supreme Court in Mohd. Ishfaq's case (supra) as under:-
"49.When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
44. In view of the discussion held above, this appeal is accepted and the impugned judgment dated 22.2.2007 is set aside.
45. The appellant Hospital had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 10.4.2007. This amount of Rs.25,000/- with interest accrued thereon, if any, be refunded by the registry to the appellant Hospital by way of a crossed cheque/demand draft after the expiry of 45 days.
FIRST APPEAL NO.439 OF 2007:
46. For the reasons recorded in FA No. 520 of 2007 above, there is no merit in the present appeal and the same is dismissed.
First Appeal No.520 of 2007. 13
47. The arguments in these cases were heard on 17.5.2012 and the orders were reserved. Now, the orders be communicated to the parties.
48. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
May 30 , 2012 (BALDEV SINGH SEKHON)
Bansal MEMBER