State Consumer Disputes Redressal Commission
Pushpa Rani vs Dr. Mohinder Singh Hospital on 21 March, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
SECTOR 37-A, CHANDIGARH.
First Appeal No.109 of 2016
Date of institution : 03.02.2016
Date of reserve : 08.03.2017
Date of decision : 21.03.2017
1. Pushpa Rani aged 70 years widow of Om Parkash son of
Rajinder Singh;
2. Rishi Raj son of Late Om Parkash;
3. Jagdeep Raj son of Late Om Parkash;
All residents of House No. 3972/1 Nita Street, Mehna
Chowk, Bathinda, Tehsil and Distt. Bathinda.
....Appellants/Complainants
Versus
1. Dr. Mohinder Singh, Hospital and Dialysis Centre, Near
Pukhraj Cinema, G.T. Road, Bathinda, through its
Proprietor/MD/Partner.
2. Dr. Mohinder Singh Hospital and Dialysis Centre, Near
Pukhraj Cinema, G.T. Road, Bathinda.
3. Iffco Tokio General Insurance Company Ltd., 2nd Floor,
Opposite Nirankari Bhawan, G.T. Road, Bathinda through its
Branch Manager.
....Respondents/OPs
First Appeal against the order dated
31.12.2015 of the District Consumer
Disputes Redressal Forum, Bathinda.
First Appeal No. 109 of 2016 2
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
Present:-
For the appellants : Sh. Inderjit Sharma, Advocate
For respondent Nos.1&2: Sh. Binderjit Singh, Advocate
For respondent No.3 : Sh. Rajneesh Malhotra, Advocate
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
The appellants/complainants (hereinafter referred as complainants) have filed the present appeal against the order dated 31.12.2015 passed by the District Consumer Disputes Redressal Forum, Bathinda (hereinafter referred as the District Forum) in consumer complaint No. 35 dated 25.1.2010 vide which the complaint filed by complainant was dismissed.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against respondents/opposite parties (hereinafter referred as Ops) on the averments that complainant No. 1 is wife of Om Parkash whereas complainant Nos. 2 & 3 are sons of Om Parkash. Om Parkash- deceased (hereinafter referred as patient) was admitted as indoor patient with Op Hospital on 30.7.2009 and remained their upto 7.8.2009. Op No. 2 diagnosed him of COPD, Bronchial infection septicemia etc. and Op started to give treatment after getting some test prescribed by them i.e. test of TLC and DLC, which was got conducted from Sheena's Path Lab on 30.7.2009 and according to the report, TLC was 19800 against normal range of 4000-11000, First Appeal No. 109 of 2016 3 DLC was 78 against 40-75, blood urea 40, creatinine 1.2 and Billirubin 1.6. However, the patient could not get the relief and his condition became critical. The Ops failed to control the problem of breathlessness, choke of chest and jaundice etc. Ops again got the test conducted from Gursimran Clinical Laboratory and TLC test shown 18000 against normal range of 4000-10000. Again another test was got conducted on 6.8.2009 about WBC, which showed the result 10.9 against normal range 4-10. When the condition of patient did not improve, Ops referred the patient to Dr. Gursewak Singh of Gursewak Gastro Care Pragma Hospital, Bhatti Road, Bathinda and on test, TLC was found 18100 against normal range 4000-11000. DLC was also more than normal range. Blood urea 111 against normal range 13-45. Creatinine 2.2 against normal range of 0.5-1.5 mg/dl and Doctor diagnosed the problem of COPD and ARF (Acute renal failure), sepsis (presence of bacteria) and again referred the patient to Ops, who after seeing the record, did not care about the critical condition of the patient. They also did not record the treatment in the patient file and ultimately, patient Om Parkash died in the hospital of Ops as no treatment was given from 8.8.2009 to 10.8.2009. Alleging medical negligence and deficiency in service, complaint was filed before the District Forum seeking directions against Ops to direct Ops to pay Rs. 15 Lacs compensation as damages and mental suffering for the negligence of Ops, refund Rs. 40,000/- taken by Ops for treatment/medicines etc. alongwith interest @ 18% and Rs. 50,000/- as litigation expenses.
First Appeal No. 109 of 2016 4
3. On notice, reply was filed by Ops taking legal objections that complaint in this Forum is not maintainable as it is false, frivolous and vexatious to the knowledge of the complainant, liable to be dismissed under Section 26 of the Act; intricate questions of law and facts are involved, which cannot be dealt in the summary procedure in the Forum and the matter be relegated to the Civil Court; Op No. 2 performed his duty as a medical practitioner with due diligence and proper care, skill as per his experience. He is well qualified Doctor having more than 28 years experience; the complainant has not approached the Forum with clean hands and exaggerated the facts. The factual matrix is that the patient had visited OP hospital on 30.7.2009 with Bronchopulmonary infection and septicemia. As per the history, he was a known case of Corpulmonale, chronic obstructive pulmonary disease (COPD) and had a fever for the last 5-6 days. The patient was immediately put on IV fluid. The routine test of Sodium, Potassium, MP, Widal, Serum-Bilirubin were got conducted. The patient was aged about 75 years, therefore, consent of treatment was duly signed by the attendant of the patient. The patient was given following medicines:-
Inj. Bactoclav 1.2 gm 8 hourly
Inj. Lizolid IV BD
Inj. Deriphyllin 8 hourly
Inj. Efcorlin 100 mg (IV)
Inj. Paracetamol IV BD
First Appeal No. 109 of 2016 5
On 31.7.2009, apart from the earlier treatment, Syrup Lodar was also prescribed. X-ray of chest was advised. On 1.8.2009, the condition of the patient was better and his fever was recorded as 100̊ F. The patient complained less sleep, therefore, he was prescribed tablet 'Ativan'. On 2.8.2009, there was no complaint. On 3.8.2009, Dyspnoea was less marked. Wheezing had decreased and patient was prescribed following medicines:-
"Inj. Bactoclav 1.2 gm 1-1
Tab. Calarie 250 mg BD
Tab. Levomac OD
Tab. Nilone 5 mg BD
Tab. Nimulid SOS
Syrup Lodar 2 Tea Spoons- Twice
Bromex Cough Syrup"
Same treatment continued for 4.8.2009. On 5.8.2009, there was no complaint. On 6.8.2009, the patient complained of weakness. On 7.8.2009, patient complained slight weakness and he was continued with the same treatment and was discharged in a satisfactory condition and was advised to take the referred medicines. Thereafter, the patient never came to Op Hospital. The allegations of death of patient in Op Hospital on 10.8.2009 are false. On 8.8.2009, he was treated by Dr. Gursewak Singh and after that he was never admitted in Op Hospital; the complaint is barred by limitation. On merits, averments as stated in the preliminary objections were reiterated and the treatment was given to the patient as referred according to standard medical protocol. First Appeal No. 109 of 2016 6 During investigation, no problem of renal failure had come before them, therefore, no treatment with regard to that disease was given to the patient. Even at the time of admission, no such problem was alleged by the patient. Complaint is without merit, it be dismissed.
4. Op No. 3 in its reply took the legal objections that the complainants have no cause of action or locus-standi to file this complaint against this Op as there is no contract between the complainants and this Op. On merits, it was stated that Dr. Mohinder Singh had purchased professional indemnity insurance policy from this Op bearing cover note No. 41244229 dated 12.12.2008 and after that they issued policy No. 41040409 for sum insured of Rs. 5 Lacs for any one accident/claim in respect of any or all claims made against the insured and Rs. 10 Lacs of any one act. Other averments of the complaint were denied. It was stated that complaint against this Op is without merit, it be dismissed.
5. Before the District Forum, the parties were allowed to lead their respective evidence.
6. In support of his allegations, the complainant had tendered into evidence affidavit of Rishi Raj Ex. C-1, discharge slips Exs. C-2 & 3, prescription slip Ex. C-4, Lab reports Exs. C-5 to 8, Lab investigation report Ex. C-9, affidavit of Pushpa Rani Ex. C-11, affidavit of Rishi Raj Ex. C-11, medicine bills Exs. C-12 to 21, receipts Exs. C-22 & 23, affidavit of Narpinder Sngh Ex. C-24, discharge card Ex. C-25, facilities at Dr. Mohinder Singh Hospital Ex. C-26, patient record book Ex. C-27, reports Exs. C-28 to 30, First Appeal No. 109 of 2016 7 death certificate Ex. C-31, lab reports Exs. C-32 to 34. On the other hand, Op Nos. 1&2 had tendered into evidence affidavit of Shavinder Singh Ex. Op-1/1, affidavit of Dr. Mohinder Singh Ex. Op-1/2, Bed Head Ticket Ex. O0-1/3, affidavit of Dr. Mohinder Singh Sidhu Ex. Op-1/4, death entry Ex. Op-1/5, affidavit of Dr. Mohinder Singh Ex. Op-1/6, certificates Exs. Op-1/7 & 8. Op No. 3 had tendered in evidence affidavit of Pankaj Dhingra, A.S. Ex. Op- 3/1, insurance cover note Ex. Op-3/2, terms and conditions of policy Ex. Op-3/3, postal receipt Ex. Op-3/4, notice Ex. Op-3/5, policy schedule Ex. Op-3/6.
7. After going through the allegations in the complaint, written version filed by the OPs, evidence and documents brought on the record, the District Forum dismissed the complaint after observing that no case of medical negligence is proved because on the record the patient was discharged on 7.8.2009, after that the complainant could not produce any record to prove that he was readmitted in Op Hospital on 8.8.2009 and died in Op Hospital on 10.8.2009. The treatment was given as per the investigation.
8. Aggrieved with the order passed by the learned District Forum, the appellant/complainants have filed the present appeal.
9. We have heard the learned counsel for the appellants, learned counsel for respondent Nos. 1 & 2 and learned counsel for respondent No. 3.
10. It was argued by the counsel for the complainants that the District Forum failed to appreciate the evidence on the record First Appeal No. 109 of 2016 8 that there was a material evidence to prove the negligence on the part of Ops. Ops failed to give the proper treatment or to refer it for 2nd opinion in case there was no response to the treatment, which proved the negligence on the part of Ops but the District Forum wrongly dismissed the complaint filed by the complainants on the basis of surmises and conjectures that complainants have not been able to prove the medical negligence against Ops.
11. As per the facts on the record, the patient was admitted with Op Hospital under the treatment of Op No. 2 on 30.7.2009. The patient file is Ex. C-2. According to that, the complainant remained admitted with Op Hospital upto 7.8.2009. According to the history recorded in Ex. C-3, he was suffering from COPD i.e. Chronic Obstructive Pulmonary Disease, Bronchopulmonary infection and septicemia. He had the fever for the last 5-6 days recorded as 103̊ F. He was referred for some laboratory tests. There is report Ex. C-7 of Gursimran Clinical Laboratory report dated 30.7.2009, in which Malarial Parasite was recorded, Blood Sugar 120 mg%, Widal test report of Typhoid. Bio-Chemical Tests of Gursimran Clinical Laboratory is Ex. C-8 in which Blood Urea 40 (15-40) mg/dl, creatinine 1.2 (0.5-1.6), Bilirubin Total 1.6 (0.2-1.0), Sodium 142 (135-155), Potassium 4.0 (3.5-5.5). Again some tests were got conducted from Gursimran Clincal Laboratory on 1.8.2009 which is Ex. C-6 in which Haemoglobin was 12.8 gm%, TLC 18,000(4000-10000), DLC 78%(40-70%), S. Bilirium 1.6. Another test was got done on 6.8.2009 Ex. C-5 from Gee Ess Diagnostic Laboratories in which First Appeal No. 109 of 2016 9 WBC 10.9(4-10) was above normal and other tests were within range. In these tests, there is no report of any renal disease. According to the tests and the investigation, the treatment was given by the Doctor. It is not a case of the complainant that the medicines given by Op No. 2 were not appropriate according to the symptoms noted in the patient file.
12. The grouse of the complainant is that on 7.8.2009, when the patient was discharged, the patient was taken to Gursewak Hospital and he had referred for Lab investigation report, which was got done from Pragma Hospital, in which the investigation has been recorded as under:-
Test Result Normal range
Hb 14.5 12-18 g/dl
TLC 18100 4000-11000/ul
DLC
Neutrophils 89 40-75%
Lymphocytes 06 22-48%
Monocytes 03 2-8%
Eosinophils 02 1-6%
Basophils 00 0-1%
Platelets 2.28 1.5-4.5 x 105 /ul
Hematocrit 43.1 37-54 %
MCV 93.7 90±8fL
MCH 31.5 30± 3pg
MCHC 33.6 33±2%
RBC 4.6 3.5-5.5x106/ul
Blood Urea 111 13-45 mg/dl
S. Creatinine 2.2 0.5-1.5 mg/dl
According to him, DLC, Urea and S. Creatinine were beyond the normal range and it was a case of COPD, ARF (Acute Renal Failure) and Septicemia. The patient was got admitted with Op Hospital on 8.8.2009 but no treatment with regard to acute renal failure and that the patient had died in Op Hospital on 10.8.2009. First Appeal No. 109 of 2016 10 Whereas this fact was denied by Ops that on 8.8.2009, the patient was never admitted in their Hospital. Allegations are incorrect that the patient had died in the hospital on 10.8.2009.
13. Now we are to see what is the evidence with the complainants to prove that after 7.8.2009, the patient was readmitted with Op Hospital. The patient file is Ex. C-2 produced by the complainants themselves in their evidence, which shows date of admission 30.7.2009 and date of discharge 7.8.2009. There is no prescription slip of Gursewak Hospital. Only Lab report is there and on the back on which it has been mentioned COPD, ARF, Septicemia. It is not signed by Dr. Gursewak Singh, although in the lab investigation report, Consultant Doctor has been referred Gursewak Singh. Gursewak Singh is not a party to it and the complainant has not examined Dr. Gursewak Singh that any treatment was given by him to the patient or that he referred it to Op Hospital. In case we go through the complaint, in para No. 4, it has been referred that patient was admitted in Op Hospital on 30.7.2009 and remained admitted upto 7.8.2009. In para No. 6, he has referred by Op Hospital to Dr. Gursewak Gastro Care Pragma Hospital but there is no prescription slip of Op Hospital that they have referred to Gursewak Hospital, it shows that after discharge from Op Hospital, they might have gone to that hospital of their own. Further there are allegations that Gursewak Hospital did not give any treatment. In case the complainants were not satisfied with the treatment already given by Op Hospital, then they could go to any other best hospital in the area and documents referred First Appeal No. 109 of 2016 11 on the record does not suggest that patient was taken to Op Hospital on 8.8.2009 and died there on 10.8.2009. Even death certificate placed on the record is Ex. C-36, does not show that the patient had died in Op Hospital. In case the patient was admitted with Op Hospital on 8.8.2009, no admission file was prepared. They could move the application to prepare the admission file but no such application was filed, therefore, bald allegations of the complainant are in the complaint that the patient was readmitted in Op Hospital on 8.8.2009 and died there on 10.8.2009 are not corroborated on the basis of evidence brought on the record.
14. With regard to the treatment, no expert evidence is there on behalf of the complainants that the treatment given by Op Hospital during the period, the patient remained admitted in Op Hospital was not appropriate treatment. The matter was also referred to Rajindra Hospital, Patiala and they had sent their expert report vide their letter dated 30.4.2010 and they have mentioned that the patient aged 75 years was suffering from COPD, Septicemia for which treatment was started and nothing incriminating or deficient in the treatment was observed.
During his stay in the hospital, patient's B-Urea and S. Creatinine was normal and he was discharged on 7.8.2009. On 8.8.2009, patient had gone to Pragma Hospital wherein his urea was found 111 mg, S. Creatinine 2.2 mg but it is not clear from the Hospital record that the patient was readmitted in the hospital and what happened to him subsequently. Therefore, with regard to the treatment given by Op Hospital even the expert body has also First Appeal No. 109 of 2016 12 observed that treatment was not deficient in any manner. If on 8.8.2009, some problem was found in the kidney and treatment was required, the complainant has not been able to prove on the record that he was readmitted in Op Hospital. No other document has been placed on the record whether he was in any other hospital. In case he has come to know about renal failure and in case Op Hospital was not expert in renal treatment as alleged by him in the complaint then the complainants should have taken the patient to some other hospital but he was not taken.
15. How the medical negligence is to be proved? The basic judgment is "Bolam v Friern Hospital Management Committee", (1957) 2 ALL ELR 118, which was accepted by the Hon'ble Supreme Court as laying down correct tests in cases of medical negligence, in which it was observed that negligence in law means failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do. It was further held that Doctor is not guilty of negligence if he acted in accordance with practice accepted as proper by responsible body of medical man skill in a particular art." The onus to prove the medical negligence on the part of Doctor is on the complainant. As per the judgment of the Hon'ble National Commission reported in 2015(2) CLT 310 "Ram Gopal Yadav versus Pushkar Anand (Dr.) & others" it was observed that in case of medical negligence, initial burden to prove medical negligence lies on the complainant. Mere averments in the complaint are not the evidence. He has referred First Appeal No. 109 of 2016 13 to another judgment 2012(3) CPC 522 "Sanjeev Manktala (Dr.) versus Ajit Sood (DR.) & Ors.". In that case, the Commission had referred the matter to the PGI for opinion of Medical Expert Board, who concluded "patient was treated appropriately". It is settled law that opinion of the doctor differs from other Doctor in medical treatment, it does not constitute any medical negligence and in view of the medical opinion of the Expert Committee, no case of medical negligence is made out against Op Hospital." To rebut the report of Expert Committee, the complainant has not brought on the record any evidence that the report given by the Expert Committee is incorrect so that we could differ with the report of the Expert Committee. A reference has been made to another judgment 2012 (2) CLT 607 "JSS Hospital & Ors. Versus Pankajrani & Ors." wherein it was observed by the Hon'ble National Commission that if the Doctors were fully qualified and due care and precaution was taken to treat the patient throughout his period of hospitalization, in case the patient died because of complication attributed to his medical problem, the Doctor could not be held liable. The counsel for the complainants was unable to rebut these judgments.
16. In the final analysis, we are of the opinion that the order passed by the District Forum is justified as the complainant has not been able to prove any case of medical negligence on the part of Ops, therefore, the complaint was rightly dismissed by the District Forum. We do not see any reason to differ with the findings recorded by the District Forum.
First Appeal No. 109 of 2016 14
17. Sequel to the above, the appeal is without any merit and the same is hereby dismissed with no order as to costs.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
19. Order be communicated to the parties as per rules.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (GURCHARAN SINGH SARAN) JUDICIAL MEMBER March 21, 2017.
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