State Consumer Disputes Redressal Commission
Jaswinder Singh vs Dr. R.K. Goyal on 30 September, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1413 of 2006.
Date of Institution: 14.11.2006.
Date of Decision: 30.09.2011.
1. Jaswinder Singh S/o Sh. Charanjit Singh S/o Sh. Dharam Singh,
Resident of Village Pipli, Tehsil and District Faridkot.
2. Kuldeep Kaur Wife of Sh. Jaswinder Singh, Resident of Village Pipli,
Tehsil and District Faridkot.
.....Appellants.
Versus
1. Dr. R.K. Goyal, Children Hospital, Kotkapura Road, Faridkot.
2. United India Insurance Company Limited, Branch Office, Jaitu Road,
Kotkapura, District Faridkot.
...Respondents.
First Appeal against the order dated
12.09.2006 (date of order wrongly
mentioned in appeal as '10.09.2006') of
the District Consumer Disputes
Redressal Forum, Faridkot.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellants : Sh. K.S. Brar, Advocate for
Sh. I.S. Brar, Advocate.
For respondent no.1 : Sh. Suresh Singla, Advocate.
For respondent no.2 : Sh. Sushil Grover, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Sh. Jaswinder Singh and another, appellants/complainants (In short "the appellants") have filed this appeal against the order dated 12.09.2006 (date of order wrongly mentioned in appeal as '10.09.2006') passed by the learned District Consumer Disputes Redressal Forum, Faridkot (in short "the District Forum").
2. Facts in brief are that the appellants filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against First Appeal No.1413 of 2006 2 the respondents, making averments that on 30.04.2002, Gursharan Singh aged about 14 months son of the appellants was not feeling well. On 01.05.2002, appellants with their grand-father/father-in-law Sh. Dharam Singh went to Dr. R.K. Goyal, respondent no.1 for medical examination, who told that the child is suffering from Pneumonia and received Rs.300/- as his fee. Respondent no.1 was intentionally delaying the diagnosis in order to get more money or fee and on every visit, was charging Rs.100/- or Rs.50/- and did not treat the child properly. The appellants visited respondent no.1 on 1st, 2nd, 3rd and 5th May, 2002, but respondent no.1 asked them to go on repeating the medicine.
3. On 30.05.2002, appellants again visited the hospital of respondent no.1 and respondent no.1 after examination of the child, gave medicines and again treated the child on 11.06.2002. On 12.06.2002, the appellants along with said Dharam Singh visited the hospital of respondent no.1 and on the advice of respondent no.1, the child was admitted in the hospital and medicines were given at about 8-9.00 a.m. and respondent no.1 examined and treated the child. The condition of the child instead of improving, started deteriorating. The appellants and Sh. Dharam Singh were calling the doctor, nurses, but no heed was paid. Sh. Dharam Singh even went to the residence of the doctor in the night of 12/13th June, but respondent no.1 did not come to see the condition of the child.
4. On 13.06.2002 at about 8.00 a.m., respondent no.1 came to the hospital and after examination of the child, advised some tests, x-ray and blood reports etc. The reports were received at 9.00 a.m. on the same day and respondent no.1 told the appellants that the child is very serious and advised them to leave the hospital.
5. On 13.06.2002, appellants itself took the child to Shri Guru Gobind Singh Medical College & Hospital, Faridkot and Dr. Karnail Singh, Professor and Head of Pediatric Department treated the child, but the child was very serious and Dr. Karnail Singh advised the appellants to take the First Appeal No.1413 of 2006 3 child to Ludhiana at about 5.00 p.m. on 13.06.2002, but the child died on the way on the same day.
6. Gursharan Singh died due to rash and negligent act of respondent no.1 and that amounts to deficiency in service and unfair trade practice. Dr. Karnail Singh also gave the report against respondent no.1. From June 11, 2002, medicines and other treatment were changed a number of times and lastly, blood test report and x-ray of chest were taken on June 13 and by the time, condition of the child deteriorated considerably which indicates that the doctor was not sure about the disease and the proper treatment was not given and had the proper treatment been given, the child could be saved, and prayed that the following damages be awarded to the appellants:-
i) on account of death of child = Rs.5,00,000/-
ii) on account of love and affection = Rs.1,00,000/-
iii) on account of harassment = Rs.50,000/-
iv) on account of medical bill = Rs.10,000/-
v) other damages due to deficiency = Rs.30,000/-
in services ._________________
Total = 6,90,000/-____
7. In the reply filed on behalf of respondent no.1, preliminary objections were taken that the answering respondent has retired from GGS Medical College & Hospital, Faridkot, as Assistant Professor and he is M.D. Pediatric and DCH and is having vast experience of 25 years as Child Specialist and he had also served at the Govt. Medical College, Patiala. No postmortem was done of Gursharan Singh and without that, no liability can be fastened on the answering respondent. There is no cause of action and the complaint is not verified properly. The appellants have not approached the District Forum with clean hands and have concealed the material facts. The appellants also moved an application to the Senior Superintendent of Police, Faridkot through Sh. Dharam Singh, who is grandfather of appellant no.1 and First Appeal No.1413 of 2006 4 after investigation, the same was filed. Sh. Dharam Singh made the statement before investigating agency that Gursharan Singh was cured and again on 03.05.2002, he fell ill and was brought to the hospital of the answering respondent. The answering respondent was never negligent in performing his duty, rather it was Dr. Karnail Singh, who referred the patient to D.M.C. Ludhiana, knowing well that deceased Gursharan Singh was not in a condition to be taken to any other place and only Dr. Karnail Singh can be held liable.
8. The answering respondent cannot be stated to be careless or negligent in giving his opinion or treatment and he treated the patient as per the established medical practice according to which he could give a particular opinion and mere difference of opinion cannot be stated to be ground for fastening the liability. The medicines/salts which were given by the answering respondent to Gursharan Singh, the same were given by Dr. Karnail Singh.
9. On 01.05.2002, Gursharan Singh was brought to hospital of answering respondent and at that time, he was suffering form Upper Respiratory Catarrah and accordingly, the patient was given treatment on 02.05.2002 and 03.05.2002 and subsequently on 5th May, 2002, he was again brought to the hospital of the answering respondent and the answering respondent prescribed the medicines and the patient had fully recovered, as he thereafter came on 31.05.2002 and at that time, he was suffering from Gastrio Entities and medicine was accordingly given and he was cured from the ailment and he did not turn up for the check-up.
10. Again, patient Gursharan Singh was brought to the hospital of answering respondent on 11.06.2002 and at that time, patient Gursharan Singh was suffering from 'Allergic Bronchitis' and he was put on the medicines for the same and he was taken back home by the parents. He was again brought on 12.06.2002 and at that time, he was suffering from cough, temperature and vomiting and at the request of the appellants, he was admitted and full services were provided by the answering respondent and his First Appeal No.1413 of 2006 5 para-medical staff and the answering respondent remained throughout night along with the patient and on 13.06.2002 in the early morning, the answering respondent again checked the patient and advised the appellants to get the blood test, x-ray from the laboratory. After receipt of the report of Hemoglobin, TLC, DLC, PBF and x-ray, appellants told that they wanted to take the patient either to DMC or CMC, Ludhiana and requested for discharge of the patient. It is worth mentioning that at that time, Gursharan Singh had started recovering and the answering respondent advised not to shift the patient, but the appellants were adamant and took the patient to GGS Medical College & Hospital, Faridkot, where he was examined by the doctors on duty and was admitted in Pediatric department. On the advice of Dr. Karnail Singh, Gursharan Singh was taken to DMC, Ludhaina and the answering respondent was not negligent or careless in performing his duties. The negligence and carelessness is on the part of the doctors of GGS Medical College & Hospital, Faridkot. Dr. Karnail Singh appeared before the investigating agency and made the statement that it was not possible that the patient could be referred to any bigger hospital, even then he gave advice to take the patient to DMC & Hospital, Ludhiana and referred the patient. Dr. Karnail Singh gave a false report wrongly. There is professional enmity between Dr. Karnail Singh and the answering respondent and Dr. Karnail Singh used to entirely change the medicines prescribed by the answering respondent to the patients and the answering respondent moved an application to the then Profession and Head, Pediatric Department, GGS Medical College & Hospital, Faridkot on 12.05.1999 and the then Principal made two separate units of Pediatric Department.
11. On merits, bringing of the patient to the hospital of the answering respondent was admitted and it was further pleaded that the answering respondent charged Rs.50/- only as fee. The allegations of the appellants were denied and the pleas taken in the preliminary objections were First Appeal No.1413 of 2006 6 repeated and it was prayed that the complaint may be dismissed with special costs.
12. In the reply filed on behalf of respondent no.2 insurance company, preliminary objections were taken that there is no privity of contract between the appellants and respondent no.2. The complaint should be referred to the civil court, as lot of evidence is required. Complaint is not maintainable and the appellants are not consumers. Dr. Karnail Singh is a necessary party. No insurance particulars were supplied.
13. On merits, it was submitted that if any amount is paid by the appellants, then they be directed to produce the receipt. Every facility is available in Faridkot. GGS Medical College and Hospital, Faridkot is more than 500 bedded hospital. It appears that Dr. Karnail Singh is setting some scores with Dr. R.K. Goyal, as both are M.D. Pediatric. Other allegations were denied and dismissal of the complaint was prayed.
14. Parties led evidence in support of their respective contentions by way of affidavits and documents.
15. 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 appellants failed to prove any sort of medical negligence by respondent no.1 in the treatment of Gursharan Singh and to prove that respondent no.1 acted in rash and negligent manner and there is no deficiency in service, and dismissed the complaint.
16. Aggrieved by the impugned order dated 12.09.2006, the appellants have come up in appeal.
17. 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 appellant and respondent no.1 as well as perused the written arguments filed on behalf of respondent no.2.
18. The appellants examined Dr. Karnail Singh, who gave his affidavit Ex.C2, and deposed that he was posted as Professor and Head of First Appeal No.1413 of 2006 7 Pediatric Department, GGS Medical College and Hospital, Faridkot. On 13.06.2002, patient Gursharan Singh aged about 1-1/4 years son of Sh. Jaswinder Singh came to GGS Medical College and Hospital, Faridkot in emergency department and was brought by one Dharam Singh, great grandfather of Gursharan Singh, in a very serious condition and was examined by him, Dr Rajinder Kumar and Dr. M.K. Bhalla. He was suffering from Pneumonia and was put on appropriate treatment. The seriousness of the condition was explained to the great-grand father of the child, but his condition worsened and he was referred as per wishes of maternal-grand- father of the child namely Sh. Gurdev Singh, to D.M.C., Ludhiana at 4.30 p.m.
19. Previously, he was asked to give his expert opinion regarding the treatment given to Gursharan Singh by Dr. R.K. Goyal and he gave his answer vide letter no.Pediatrics-02/240/11.10.2002. His observations were as under:-
"I have carefully gone through the record of treatment given to Gursharan Singh, 14 months old male child, by Dr.R.K. Goyal and my observations are as under:-
1) As per prescription slip dated June 11 and 12, 2002, diagnosis has not been mentioned. As per established medical practice, a physician should write the clinical diagnoses and main signs and symptoms on the prescription slip, so that the doctor/institution to whom/where the patient is referred subsequently, can properly manage that patient.
2) From June 11 to June 13, 2002, the medicines and other treatments given to the child were changed three times in three days, the last time in the morning of June 13 after getting the blood tests and x-rays chest. However, by that time, the condition of the child had deteriorated considerably. It indicates that the doctor was not sure about the disease, the child was suffering.
3) It is possible that had the treatment which was prescribed on June 13 morning (but no given) started at the very outset i.e. on June 11 after getting the tests on that very day, the child might First Appeal No.1413 of 2006 8 have been saved. The x-ray chest dated 13th June show pneumonia-it means the disease process had started in earlier days".
20. He further deposed that as per the record of the treatment given by Dr. R.K. Goyal, no IV antibiotics or oxygen was given to the baby on 11th or 12th June, 2002 and till the morning of 13th June, 2002. It is a medical fact that small babies specially babies less than two years old may come with features of loose motions and vomiting, but they may be suffering from some other serious diseases like U.T.I. middle ear infection, Pneumonia etc. and the doctor has to be aware and be vigilant about these conditions when a child comes with loose motions.
21. The appellants have also tendered affidavits appellant Jaswinder Singh as Ex.C1, affidavit of Sh. Dharam Singh Ex.C3, affidavit of Gurdev Singh Ex.C4, affidavit of Baljinder Kaur Ex.C5, affidavit of Hakam Singh, Numberdar Ex.C6, statement of Dr. Karnail Singh Ex.CA and his report Ex.C2/A tendered in the judicial file of the judicial court, bed-head ticket of GGS Medical College & Hospital Ex.C2/B.
22. As per prescription slip Ex.CZ, Gursharan Singh was brought first time to the hospital of respondent no.1 on 01.05.2002 and some medicines were prescribed and temperature recorded was 99.2 F. and on 02.05.2002, temperature recorded was 101 F. and some medicines were prescribed, but no diagnosis or the disease which he was suffering from was mentioned. On 3rd May, 2002, temperature was 99 F. and some medicines were prescribed and on 5th May, 2002, temperature was 99 F. and some medicines were prescribed, but again no disease for which the treatment was given, was mentioned. As per Ex.CM on 31.05.2002 again, Gursharan Singh was brought to the hospital of respondent no.1 and some medicines were prescribed. Again he was brought on 11th June, 2002 and temperature was recorded as 100 F. and some medicines were prescribed. Again on 12th June, 2002, temperature was recorded as 100 F. and medicines and injections were prescribed, but no diagnosis, no disease which he was suffering, was First Appeal No.1413 of 2006 9 mentioned. On 13.06.2002, blood test and other tests were got conducted from Jyoti Diagnostic Centre and the reports are Ex.CN and Ex.CO and the death certificate of Gursharan Singh is Ex.CS which shows that he died on 13.06.2002 itself.
23. From the above discussion and documents, it is clear that the patient Gursharan Singh remained under treatment of respondent no.1 from 01.05.2002 to 13.06.2002 and on 13.06.2002 he was referred to GGS Medical & Hospital, Faridkot and he was treated there and seeing his condition and on the wishes of the relatives and parents of the appellants, the patient was referred to Ludhiana, but he died on the way.
24. Dr. R.K. Goyal tendered his own affidavit Ex.RB and also Parikh's Text Book of Medical Jurisprudence and Toxicology Ex.RA. The said text book deals with Medicology Autopsy to determine the cause of death and other related matters which are relevant in criminal cases. Respondent no.1 in his affidavit has tried to explain that he has enmity with Dr. Karnail Singh and there was professional rivalry between them, but that in no way exonerates respondent no.1 from providing the best possible treatment and taking due care and caution in treating the patient. He blamed Dr. Karnail Singh for everything, even causing death of child Gursharan Singh by referring him to Ludhiana, by stating that the condition of the child was serious and he should not have been referred to Ludhiana.
25. In his cross-examination, Dr. R.K. Goyal deposed that in the prescription slip, complete history of the patient is not recorded, but the complete history is asked from the patient. They never record the symptoms from which the patient is suffering from a particular disease. He further deposed that the disease is particularly mentioned on the prescription slip. At the time of diagnosis, the disease, the medicine is prescribed and mentioned in prescription slip accordingly. He further admitted that the patient involved in this case was suffering from Upper Respiratory Cattarh. He has not mentioned the symptoms of the disease on the prescription slip. The original First Appeal No.1413 of 2006 10 he has seen and copy of which is Ex.CX. The test report is obtained in respect of patient where it is felt necessary. On 01.05.2002, when the patient came, after examination he did not feel it necessary to obtain the test report. The condition of the patient was stable. The patient came to him on other dates mentioned on the back of prescription slip Ex.CN. Patient also came on 31.05.2002 and he was suffering from Gastroenteritis and no test was prescribed by him even on that day. He has not mentioned the symptoms of disease on the prescription slip. Patient also came on 11.06.2002 and 12.06.2002 and his prescriptions slips are Ex.R2 and Ex.R3. On 11.06.2002, he prescribed the medicine, but did not mention the disease. No test was suggested. He did not record the symptoms in any of the prescription slips issued by him. Symptoms of disease U.R.C., pneumonia and Gastroenteritis are not the same. On 12.06.2002, patient was admitted and the bed-head ticket was prepared, but the signatures of the guardian of the patient were not obtained on the bed-head ticket. The record of the staff working in his hospital is not maintained. No duty register is kept. The diagnosis he mentioned in the bed-head ticket, which were detected on the night of 12/13.06.2002. He can not tell orally the treatment given during the night by him. When the patient is admitted, the condition was told to the guardian of the patient, but it was not a serious condition. On 13.06.2002 in the morning, he prescribed certain tests. He did not issue any discharge slip, but only mentioned the medicine mark-Y on Ex.R2. He admitted that Dr. Karnail Singh remained as Head of Pediatric. He has mentioned in his affidavit that patient died due to negligence of Dr. Karnail Singh. He further admitted that the guardian of the patient told to take the patient to DMC on 13.06.2002. He did not refer the patient to DMC. He did make a complaint against Dr. Karnail Singh to the Principle, G.G.S. Medical College, Faridkot.
26. Respondent no.1 has also relied upon the copy of the order of Chief Judicial Magistrate, Faridkot vide which, the complaint filed by Sh. Dharam Singh, complainant against respondent no.1 was dismissed. Ex.RD First Appeal No.1413 of 2006 11 is the Appreciation Letter issued by Shri Guru Gobind Singh Medical College, Faridkot. Ex.RE is the affidavit of respondent no.1 wherein he has narrated the facts as per the written statement.
27. Affidavit Ex.RF is of Dr. S.P. Pandve, M.D. Pediatric, who retired from Govt. Rajindera College, Patiala and has stated that a child is more prone to complications than a young person and complication can arise at any time inspite of giving best medicine to him or her for a particular ailment. The cure of the patient depends upon severity of the infection along with other factors. In his cross-examination, he has deposed that in a private hospital, it always vary from hospital to hospital as to whether the services are available for 24 hours or not. A child is admitted depending upon his ailment. The patient is admitted only in case he needs immediate care. It again depends upon case to case as to whether the condition of the patient can deteriorate or not if the patient is not attended for all the night by the nurse or the doctor. He further deposed that if a treatment is not given in serious case to a patient, then only God knows what will happen. There is difference between Govt. hospital and private hospital regarding treatment and maintaining of record. Even in private hospital if some tests is to be conducted of a patient who involves risk, the consent of the patient or guardian is invariably taken. Fever is not a disease, but it is symptom of various allied diseases. He cannot tell from the report if the patient was suffering from Pneumonia or not and it can be case of TLC 17500 if there is a little pimple or boil on any part of the body. The tests help only to the extent of 5% in detecting the disease, but it depends upon the subjective examination to find out the disease of the patient.
28. Dr. R.K. Aggarwal, Additional Professor, Forensic Medicine Department, Govt. Medical College, Patiala, deposed that he remained posted at Faridkot in Medical College in Forensic Medicine Department and he conducted 15000 postmortem examinations and the very object of conducting the postmortem examination is to ascertain the exact cause of First Appeal No.1413 of 2006 12 death. Postmortem examination is conducted in the case of unnatural death or where there is some suspicion regarding the cause of death. If a patient dies in a private hospital or Govt. Medical College, the postmortem examination is usually conducted to know the cause of death where the question of negligence is involved of a doctor.
29. Dr. C.K. Parikh's Text Book is Ex.RA. Ex.RX is the application given by respondent no.1 to the Professor, Pediatric Department, Medical College, Faridkot, stating that treatment of a patient is changed. Ex.RX/1 is the Professional Indemnity Insurance taken by respondent no.1 Ex.RY is the order vide which, the pediatric department was divided into two units and Dr. Karnail Singh and respondent no.1 were asked to work independently. Ex.R2/A is the bed-head ticket. Ex.RX/2 is the affidavit of Sh. K.K. Garg, A.D.M., United India Insurance Company Limited.
30. Above discussion proves that respondent no.1 by examining Dr. S.P. Pandve, Dr. K.K. Aggarwal and by producing the order Ex.RC of the C.J.M., Faridkot and letter Ex.RX as well as order Ex.RY, has tried to prove that he has enmity with Dr. Karnail Singh and the complaint filed by Dharam Singh was dismissed by C.J.M., Faridkot. Dr. S.P. Pandve has worked with respondent no.1 and in his cross-examination, he deposed that it varies from case to case or from Govt. hospital to private hospital, the manner of records maintained and the treatments given. He has deposed to the extent that only in 5% cases, the tests are required, forgetting that with the latest development in the medical science, the qualified and competent doctors even do not prescribe any medicine till they diagnose the disease by getting the tests conducted or through x-rays, ultrasounds and C.T. scans, MRI etc. The hit and trial method adopted by the doctors in the past when all these facilities were not available, is no longer the line of treatment adopted in the modern days. It also appeals to the common sense that without diagnosing the real disease, how proper and appropriate medicine can be prescribed. Thus, Dr. S.P. Pandve has adopted a partition attitude in order to help his own First Appeal No.1413 of 2006 13 colleague. Dr. K.K. Aggarwal has deposed that to know the cause of death, the postmortem examination is necessary. He has also deposed that the postmortem examination is conducted in case of unnatural death or if there is some suspicion regarding the cause of death or where the question of negligence of a doctor is involved. Dr. K.K. Aggarwal again forgot the facts of the present case and instead of deposing about the facts of the case, has given general opinion whereas in the present case, neither there was unnatural death nor there was some suspicion about the cause of death and, as such, his testimony is no better than that of Dr. Pandve and they are making statements on oath just to help respondent no.1, but not to promote the interest of justice. Truth came out from the mouth of Dr. S.P. Pandve when he deposed that that he cannot tell from the report if the patient was suffering from Pneumonia or not and it can be a case of TLC 17500, if there is pimple or boil on any part of the body.
31. Thus, how could respondent no.1 in the first instance, adjudge that it was a case of Pneumonia or that TLC was more, but being a qualified doctor, he adopted the technique of hit and trial and kept on prescribing the medicines for Pneumonia for some days and again for Gastroenteritis. Temperature of the child was also varying every time he was brought to respondent no.1, but respondent no.1 has no where mentioned as to what was the diagnosis for the same and for which disease, the medicines were prescribed.
32. Complainant no.1-Jaswinder Singh in his cross-examination, admitted that Gursharan Singh had been cured upto certain extent and there was no necessity for them to take Gursharan Singh to Dr. R.K. Goyal. He also admitted that after taking medicine, the disease was cured to some extent and upto 31.05.2002, he was not taken anywhere and on 31.05.2002, he was brought to Dr. R.K. Goyal and on 31.05.2002, he was suffering from Gastroenteritis and he was cured and they had faith in Dr. R.K. Goyal and from 31.05.2002 to 10.06.2002, they did not take Gursharan Singh to the First Appeal No.1413 of 2006 14 doctor. He was brought to Dr. R.K. Goyal on 11.06.2002 and he was taken back to their village Pipli and on the next day, again the patient was brought for re-examination and on 12.06.2002, Gursharan Singh was suffering from cough, temperature and vomiting. He also admitted that Dr. R.K. Goyal kept on examining Gursharan Singh after admission in the hospital.
33. On the basis of this cross-examination, the District Forum did not find any fault in the treatment given or that any negligence was attributed to respondent no.1. The statement of the complainant no.1 cannot be considered over and above the documents prepared by respondent no.1. Respondent no.1 kept on treating the child as and when he was brought to him on different occasions, but with different disease every time. As a doctor of skill and competence and being a child specialist, it was not expected from respondent no.1 just to give the treatment as and when the patient was brought, but he was also duty bound to find out the cause for which the child was developing different diseases at different times. Even if taking the statement of complainant no.1 into consideration that from 31.05.2002 to 10.06.2002 they did not take Gursharan Singh deceased to respondent no.1, but on 11.06.2002 when he was again brought to respondent no.1 with problems of cough, temperature and vomiting, at that time it was expected from respondent no.1 to conduct the thorough medical examination including the required tests to know as to what was the basic problem with the child and to treat him accordingly. Respondent no.1 knew very well that the said child was under his treatment continuously from 01.05.2002 and every time, he was developing a different disease and on 11.06.2002, at least he should have prescribed the tests and thereafter at the time of admission on 12.06.2002, he was supposed to get the tests conducted in order to know the real disease. He did not bother to attend the patient in the night although the complainant party was time and again informing the Attending Nurse to call the doctor as the condition of the child was deteriorating. It has come in evidence that even Sh. Dharam Singh, great grand-father of the child went to First Appeal No.1413 of 2006 15 the residence of the doctor during night and tried to contact him, but respondent no.1 never responded nor bothered to attend to the emergency call of the patient or his attendants, but as usual, he came in the morning of 13.06.2002 and by that time, the condition of the patient had gone beyond control, and prescribed all those tests which he could have prescribed on 11th or 12th of June, 2002 and then without properly discharging the patient somehow or the other, managed to send the patient to GGS Medical College & Hospital, Faridkot where the patient was attended by Dr. Karnail Singh, Dr. Rajinder Kumar and Dr. M.K. Bhalla and they found that that the condition of the child was serious and they tried to give the best possible treatment, but the situation had already gone out of control and thereafter on the request of the attendants of the child, he was allowed to be taken to Ludhiana, but unfortunately the child died on the way.
34. On behalf of respondent no.2, the reliance has been placed on "Raj Bhalla Vs Vimhans", 2010(1) CPC-339(NC) wherein, it was a case of advance surgery conducted, but no relief was found in the suffering of pain and no expert was examined and the complaint was dismissed. In our opinion, now the examination of the expert is not must in every case, as has been laid down by the Hon'ble Supreme Court in case "V. Kishan Rao Vs Nikhil Super Speciality Hospital & Anr.", 2010(2) RCR (Civil) 929 (SC).
35. The other authority relied upon on behalf of respondent no.2 is "Kusum Sharma & Ors. Vs Batra Hospital & Medical Research Centre & Ors.", 2010(2)Civil Court Cases-015(SC), wherein the Hon'ble Supreme Court has discussed the entire law and in Para-94, mentioned the well known principles for deciding whether the doctor was guilty of medical negligence and in sub paras (I), (III) and (IV) held as under:-
"(I) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.First Appeal No.1413 of 2006 16
(III) The Medical Professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
(IV) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
36. From the above, it is clear that in the present case, it was neither a case of error of judgment nor that respondent no.1 chose one line of action, but it was a case of gross negligence where the conduct of respondent no.1 fell below the standards of a reasonably competent practitioner. Had respondent no.1 exercised the reasonable degree of care and performed his duties with reasonable skill and competence, then he should have diagnosed the disease of Gursharan Singh, by way of tests and other medical tests available, but he has not done so and he is guilty of medical negligence and that led to the death of the child and he is liable to compensate the appellants. The dismissal of the complaint by the Chief Judicial Magistrate or the referring of the child at the last moment by Dr. Karnail Singh, to Ludhiana, has nothing to do with the act and conduct of respondent no.1. The District Forum has not taken into consideration all these facts and the material on record and has passed an order which is not sustainable.
37. In view of above discussion, the appeal filed by the appellants is accepted and the impugned order dated 12.09.2006 under appeal passed by the District Forum, is set aside. Consequently, the complaint filed by the appellants/complainants is allowed and Rs.3,00,000/- (Rupees Three Lacs) in lumpsum for all the claims is awarded as compensation to the appellants/complainants and Rs.20,000/- (Rupees Twenty Thousand) as litigation expenses.
38. Respondent no.1-Dr. R.K. Goyal has taken Professional Indemnity Insurance Policy Ex.RX/1 for Rs.5.00 lacs valid w.e.f. 17.09.2001 First Appeal No.1413 of 2006 17 to 16.09.2002. As such, both respondents no.1 & 2 are liable to pay the above amounts jointly and severally. Accordingly, both the respondents no.1 & 2 are directed to pay the above amounts to the appellants/complainants within two months from the receipt of copy of the order.
39. The arguments in this appeal were heard on 20.09.2011 and the order was reserved. Now the order be communicated to the parties.
40. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member September 30, 2011.
(Gurmeet S)