State Consumer Disputes Redressal Commission
Employees State Insurance Corp. ... vs Moninder Singh on 31 August, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1422 of 2009.
Date of Institution: 08.10.2009.
Date of Decision: 31.08.2012.
1. Employees State Insurance Corp. Hospital, Bharat Nagar Chowk,
Ludhiana through its Medical Supdt.
2. ESIC, Ludhiana through its Branch Manager, Focal Point, near
Rockman Cycle Factory, Ludhiana.
.....Appellants.
Versus
1. Moninder Singh S/o Sh. Joginder Singh;
2. Aminder Preet Singh;
3. Arpit Preet Kaur;
4. Jasmeet Singh;
All minors sons/daughter of Sh. Moninder Singh, through their
Guardian Sh. Moninder Singh S/o Sh. Joginder Singh, Residents of
H.No.1636, Street-20, Janta Nagar, Ludhiana.
5. Christian Medical College & Hospital, CMC Hospital, Brown Road,
Ludhiana, through its Medical Supdt.
6. District Red Cross Society-cum-Red Cross Blood Bank, Ludhiana
through its Executive Secretary, near Rakh Bagh, behind Mall Road,
Ludhiana.
7. United India Insurance Company Limited, Mata Rani Road, through its
Branch Manager/Authorized Officer.
...Respondents.
First Appeal against the order dated
08.07.2009 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
...................................
Present:- Sh. B.S. Bhatia, Advocate, counsel for the appellants.
Sh. Pawan Kumar Longia, counsel for respondents no.1 to 4. Sh. B.L. Saini, Advocate with Sh. Ravison, L.O. for respondent no.5.
None for respondent no.6.
Sh. Munish Goel, Advocate, counsel for respondent no.7.
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First Appeal No.1422 of 2009 2INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order will dispose of two appeals i.e. First Appeal No.1422 of 2009 (Employees State Insurance Corp & Anr. Vs Moninder Singh & Ors. ) and First Appeal No. 109 of 2010 (Moninder Singh & Ors. Vs E.S.I.C., Ludhiana & Ors.) as both the appeals are directed against the same order dated 08.07.2009 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana. The facts are taken from 'First Appeal No.1422 of 2009' and the parties would be referred by their status in this appeal.
2. Facts in brief are that Sh. Moninder Singh and others, respondents no.1 to 4/complainants (hereinafter called as "the respondents no.1 to 4") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants and respondents no.5 to 7, alleging that Smt. Ravinder Kaur wife of respondent no.1, aged approximately 30 years, was hale and hearty and died in C.M.C. & Hospital, Ludhiana on 24.09.2004 due to carelessness, gross negligence on the part of the appellants and respondents no.5 to 7, leaving behind respondents no.2 to 4, who are minors.
3. Respondent no.1 is working in Ludhiana Bottling Company and was regular contributing towards ESIC subscription since 1998 vide Sr. No.8171777 and I. Card No.149364 and respondent no.1 along with his family members was eligible for treatment in ESIC Hospital, Ludhiana. Appellants had not only inured respondents no.1's family but also undertook to provide medical facilities. Smt. Ravinder Kaur wife of respondent no.1 was admitted in C.M.C. & Hospital, Ludhiana from 22.09.2004 and ultimately died on 24.09.2004. She felt pain and took opinion of ESIC doctors in September, 2004, who advised that the pain was due to small stones in kidney for which minor surgery would have to be performed and told that they are well qualified and experience to do the surgery.
First Appeal No.1422 of 2009 3
4. The wife of respondent no.1 (hereinafter called "the patient") was admitted in ESIC Hospital, Ludhiana on 14.09.2004 for operation of kidney stone and the doctors suddenly on 14.09.2004 advised that the patient is anemic and blood transfusion is required and asked for arranging two bottles of blood from Red Cross Blood Bank. Appellant no.1 conducted the laboratory tests on the patient and determined the blood group and then directed respondent no.1 to approach respondent no.6, who advised respondent no.1 to first arrange or donate fresh blood and then they would issue the blood and send two bottles of blood of required blood group directly to ESIC Hospital. After donating fresh blood by two friends of respondent no.1, respondent no.6 issued two bottles as replacement and sent the same to ESIC Hospital on 14.09.2004. Respondent no.1 was not aware whether respondent no.6 provided good quality of blood in lieu of fresh blood donated on behalf of respondent no.1 or not.
5. Out of above said two bottles of blood of desired group, the ESIC Hospital transfused one bottle of blood on 14.09.2004 on the patient and thereafter conducted the operation on 18.09.2004 for Cholicystectomy by way of open surgery. Doctors of ESIC Hospital namely Sh. Kulwinder Singh and others were careless, negligent and ignored established medical ethics, procedure and they are jointly and severally liable. As per discharge-cum- reference letter dated 22.09.2004, the patient was anemic and her TLC count was 62000 and HB 10 gm and blood transfusion was resorted on 14.09.2004, then open surgery should not have been done by the appellants. Instead of open surgery, Laparoscopic or surgery, involving minimal cutting should have been adopted or the patient should have been referred to the hospital where such type of surgery is available. There was no deep freezer or proper arrangement of safe storage of blood in the appellant-hospital. After transfusion of one bottle, the second bottle remained lying unsafely and uncared in appellant hospital from 14.09.2004 to 21.09.2004, which obviously got contaminated and on transfusion of that bottle in the patient at 9.40 a.m. First Appeal No.1422 of 2009 4 on 21.09.2004, patient developed shivering and blood reaction. No post operative complication was seen upto 21.09.2004, but the complications developed on 21.09.2004 after transfusion of second bottle of blood which establishes that either the blood bottle got mixed with other blood bottle in appellant hospital or wrong blood group was transfused or contaminated blood was transfused due to negligence of the doctors.
6. On 22.09.2004, the patient developed Jaundice, Lachy Cardiac, breathlessness and fall in B.P. and she was put on oxygen, drip and antibiotics on 22.09.2004 and was provisionally diagnosed by the doctors of the appellant hospital to be 'Toxic Hepatitis, blood reaction'. Doctors of appellants got nervous and helpless and referred the patient to specialist, because they were not equipped and qualified to give treatment for blood reactions.
7. The appellants vide its letter No.122-U-204 dated 22.09.2004 referred the patient to R. Hospital, Patiala or D.M.C. or C.M.C. Hospital, Ludhiana, as the condition of the patient was deteriorating and respondent no.1 got admitted his wife to C.M.C. Hospital immediately on 22.09.2004 where various tests were conducted and medicine were administered, but ultimately the patient died on 24.09.2004 and the C.M.C. & Hospital assigned the cause of death as follows:-
"Post Choli Cystectomy Jaundice with Shock Sepsis Blood Transfusion Reaction".
8. Respondent no.1 had spent huge amount on treatment of his wife and she died on account of negligence of the doctors of appellant no.2- hospital and respondent no.5 was also negligent in not treating her properly.
9. On inquiry made from appellant no.2-hospital, respondent no.1 came to know that another patient died in that hospital on 21.9.2004 due to administration of wrong blood and condition of said patient also deteriorated and appellant no.2 is keeping studded silence in respect of the said patient. First Appeal No.1422 of 2009 5
10. There was no need for transfusion of blood on 21.9.2004, when HB of the wife of respondent no.1 was 10 gms. and no consent for transfusion of two bottles of blood was obtained. Blood transfusion was not stopped even when the blood reaction was noted just 5 or 10 minutes of transfusion. No matching or cross matching of blood group was done before starting transfusion. The blood issued by the blood bank should have been used within 24 hours, whereas it was used after 7 days of its issuance. Entire record in this respect has been concealed by the appellants and respondents no.5 & 6 in order to conceal their negligence. Doctors of the appellants and respondents no.5 & 6 did not follow the prescribed procedures, rules and regulations of blood bank, blood transfusion and blood storage etc. which resulted into death of the patient. The respondents no.1 to 4 suffered mental and physical agony, harassment and financial loss due to deficiency in service, negligence and unfair trade practice on the appellants and respondents no.5 & 6.
11. It was prayed that a sum of Rs.12.00 lacs be awarded as compensation for mental, physical loss, agony, in addition to Rs.15,887/- being cost of medical expenses incurred and to pay Rs.1.00 lac being insurance amount and Rs.5,000/- as litigation expenses.
12. In the written statement filed on behalf of the appellants, preliminary objections were raised that the complaint is not maintainable and the District Forum has no jurisdiction to entertain the same. The respondents no.1 to 4 have never approached the appellants regarding any such claim as per provisions of the ESI Act. On merits, it was pleaded that the respondents no.1 to 4 have failed to give information qua death of Smt. Ravinder Kaur to the appellants. In case of being an insured worker, respondent no.1 may approach the ESI, Ludhiana for preferring any claim under the provisions of the ESI Act and regulations. The doctors of ESI Hospital are well qualified and experienced. The medical officers must have given correct advice. The death is alleged to have occurred in CMC & Hospital where the patient was First Appeal No.1422 of 2009 6 admitted and there is no deficiency or negligence in service on the part of doctors of the ESI Hospital. The doctors named in the complaint are necessary parties, but for the reasons best known to respondents no.1 to 4, they have not been arrayed as parties. Proper treatment was given by the doctors of ESI Hospital. It was denied that the disease got developed due to negligence of the appellants. The respondents no.1 to 4 might have got discharged Ravinder Kaur, and prayed that the complaint may be dismissed with costs.
13. In the written reply filed on behalf of respondent no.5, preliminary objections were raised that there is no deficiency in service on the part of the answering respondent, either in diagnosis or in the treatment and the treatment given to the patient is universally given world over. On merits, death of Smt. Ravinder Kaur on 24.09.2004 in CMC & Hospital was admitted. It was further pleaded that the answering respondent treated the patient to the best of its ability. The patient was admitted in the answering respondent on 22.09.2004 at 6.50 p.m. with history of 'blood transfusion reaction' for one day back, breathlessness and jaundice for 10 hours prior to admission. She had Open Cholesystectomy on 18.09.2004 from appellant hospital (for chronic cholecystitis and cholelithiesis). At the time of admission, the patient was in shock, her pulse was 120/min., BP was 70 mmHg systolic and respiratory 32/min. She was having jaundice and her leucouyte count was on higher side i.e. 11200/cumm and there was minimal derangement of renal function (blood urea 66, creatine 1.2). After admission, blood spectrum, antibiotics- cefotaxime/sulbactum etc. were started, but despite the treatment given, condition of the patient did not improve and she continued to be in hypotension. There was no delay in starting treatment in the answering respondent hospital and ultimately, the patient expired at 5.00 a.m. on 24.09.2004. The patient was treated by well experienced, competent and qualified doctors and was admitted in the ward of P.K. Dandona, who is a professor. There is no negligence or deficiency in service on the part of the First Appeal No.1422 of 2009 7 answering respondent. Other allegations of the complaint were denied and it was prayed that the complaint may be dismissed with costs.
14. Respondent no.6 filed separate written reply, pleading that the complaint is not maintainable and the answering respondent has been unnecessarily impleaded. No service was provided by respondent no.6 to the patient and there was no negligence on it part. The respondent no.1 is not a consumer of the answering respondent. Respondent no.6 is a charitable Society which does not involve in any kind of treatment or services for consideration. On the request of respondent no.1, the answering respondent only provided two bottles of required blood group for the purpose of treatment of Smt. Ravinder Kaur after following proper procedure, on humanitarian grounds. Denying other allegations of the complaint, it was prayed that the complaint may be dismissed.
15. Respondent no.7 filed separate written reply taking similar preliminary objections. On merits, allegations of the complaint were denied and it was further submitted that respondent no.5 has obtained the Professional Indemnity Policy from respondent no.7 and it is liable only to the extent of risks covered, if the deficiency of respondent no.5 is proved, and prayed for dismissal of the complaint.
16. Parties led evidence in support of their respective contentions by way of affidavits and documents.
17. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the second bottle of blood was not stored in proper and hygienic storage conditions and consequently it got contaminated from 14.09.2004 to 21.09.2004 on account of mistake or negligence committed by employees of appellant no.1-hospital and they instead of providing matching blood bottle, provided different blood group bottle which on transfusion immediately reacted and the blood was not accepted by the body of patient, leading to unfortunate death of the patient. There is no material on record to First Appeal No.1422 of 2009 8 contribute such negligence either to respondent no.5-CMC Hospital or respondent no.6-Blood Bank. Though no expert was examined on the quantum of negligence pertaining to transfusion of second blood bottle, but applying the principle of res-ipsa-loquitor, there is no escape from concluding that second transfused blood bottle reacted, either it was contaminated or negligently wrong blood group mismatching with the blood the patient was transfused. Relying upon "Dr. V.Vidhyaullatha Vs R. Bhagawathy", 1 (2006) CPJ-136(NC); "Martin F. D'Souza Vs Mohd. Ishfaq", 1 (2009)CPJ- 32(Supreme Court) and "State of Punjab Vs Shiv Ram & Ors.", 2005 (3) Apex Criminal-268(Supreme Court), the complaint was allowed against the appellants, directing the appellants to pay Rs.5,00,000/- as compensation and Rs.5,000/- as litigation costs to respondents no.1 to 4. Complaint against respondents no.5 to 7 was dismissed.
18. Aggrieved by the impugned order dated 08.07.2009, the appellants have come up in appeal, seeking setting aside of the impugned order.
19. Whereas, the respondents no.1 to 4-Moninder Singh & Ors. have filed cross appeal i.e. First Appeal No. 109 of 2010 (Moninder Singh & Ors. Vs E.S.I.C., Ludhiana and others) with a prayer to enhance the compensation.
20. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties, except respondent no.6, as none appeared on its behalf at the time of arguments.
21. The wife of respondent no.1, namely Smt. Ravinder Kaur was admitted in appellant no.1-Hospital on 14.09.2004 for the operation of minor kidney stones and the doctors of appellant no.1-hospital asked for arranging two bottles of blood from respondent no.6 and accordingly, two bottles of blood were arranged. The operation of the wife of respondent no.1 was conducted on 18.09.2004 for Cholicystectomy by way of open surgery and First Appeal No.1422 of 2009 9 one bottle of the blood was transfused and there was no reaction of that transfusion, which proves that the blood matched with the blood group of the wife of respondent no.1 and there was no complication or reaction. The second blood bottle was kept in appellant no.1-hospital, but it was not properly preserved, as there was no deep freezer or proper arrangement of safe storage of blood in the appellant-hospital. This is clear from the reply of the appellant no.1-hospital to the Para 8-C of the complaint. In the reply filed on behalf of the appellant the reply was 'wrong and denied' and some of the facts pleaded in Para-8 of the complaint were denied for want of knowledge. There was no specific denial, nor it was reiterated that there is deep freezer or proper arrangement of proper storage of blood in appellant no.1-hospital. The second blood bottle was in the custody of appellant no.1-hospital and on 21.09.2004, the second blood transfusion was carried out and within five minutes of the transfusion of blood, the wife of respondent no.1 felt back pain, shivering, palpitation etc. and it was due to the wrong transfusion of blood and blood reaction. On 22.09.2004, the said patient developed Jaundice, breathlessness and fall in Blood Pressure and appellant no.1-hospital referred the patient to C.M.C. & Hospital, Ludhiana. As per the Medical Summary Ex.C-11 recorded on 22.09.2004 by the doctors of respondent no.5-C.M.C. & Hospital, Ludhiana, it was observed as follows:-
"This lady had open cholecystctomy on 18.09.2004 from ESI Hospital (for chronic cholecystitis and cholelithiasis). She remained well for 2 days after that when she was transfused blood on 21.09.2004, patient developed severe back pain 5 minutes after starting transfusion followed by shivering, palpitation, ghabrahat. Patient had 2 episode of vomiting, non bilious, non projectile, containing watery fluid but she continued to have ghabrahat and sweating intermittently".
22. Under the head "Final Diagnosis", it was mentioned as follows:-
"- POST CHOLECYSTECTOMY WITH JAUNDICE First Appeal No.1422 of 2009 10
- ? SEPSIS
- ? POST TRANSFUSION REACTION
- ? ANAEMIA".
23. Thus, from the above, it is clear that it was a blood transfusion reaction which led to severe back pain, shivering, palpitation, uneasiness and jaundice. Respondent no.5 treated the patient for the said diseases, but it was too late and she died on 24.09.2004. The reaction on transfusion of second blood bottle clearly proves that before transfusion of the said bottle, it was not assured that the blood is matching and during the period from 14.09.2004 to 21.09.2004, it was kept in safe storage and has not contaminated, but nothing such was done and once there were no proper storage facilities available with the appellants, then it was more on the part of the appellants to make sure that the blood which is to be transfused is safe and is matching to the blood group of the patient and has not got contaminated in the meantime, because for seven days it was not used. Thus, the negligence of the doctors of the appellant no.1-hospital is proved, as they did not bother to take necessary care and precaution before transfusion of blood. This is a case of gross negligence and no expert opinion was required and it cannot be termed as any complication arising out of the operation. The order of the District Forum is very detailed and is a speaking order and the facts and evidence has been discussed in detail and, as such, there is no ground to interfere with the same.
24. The District Forum has granted the relief in favour of respondents/complainants which is proper and there is no ground to enhance the compensation.
25. In view of above discussion, the appeal filed by the appellants is dismissed and the impugned order under appeal dated 08.07.2009 passed by the District Forum is affirmed and upheld. No order as to costs.
26. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest First Appeal No.1422 of 2009 11 accrued thereon, if any, be remitted by the registry to the respondents no.1 to 4/complainants in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
27. Remaining amount as per the order of the District Forum shall be paid by the appellants to the respondents no.1 to 4/complainants within 60 days of the receipt of copy of the order.
First Appeal No.109 of 2010:-
28. In view of the reasons and discussion held in First Appeal No.1422 of 2009 (Employees State Insurance Corp & Anr. Vs Moninder Singh & Ors. ), the First Appeal No. 109 of 2010 (Moninder Singh & Ors. Vs E.S.I.C., Ludhiana & Ors.) is dismissed. No order as to costs.
29. The arguments in both these appeals were heard on 30.08.2012 and the orders were reserved. Now the orders be communicated to the parties.
30. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
31. Copy of this order be placed in First Appeal No. 109 of 2010 (Moninder Singh & Ors. Vs E.S.I.C., Ludhiana & Ors.).
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member August 31, 2012.
(Gurmeet S)