State Consumer Disputes Redressal Commission
Manu Sharma And Another vs Dr. Kulwant Singh And Another on 16 April, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Misc. Application No.2072 & 2073 of 2020
In/and
Consumer Complaint No.886 of 2018
Date of institution : 14.11.2018
Date of decision : 16.04.2021
1. Manu Sharma, aged 44 years, son of Sh. Ram Dev Sharma;
2. Smt. Raminder Sharma, aged 41 years, wife of Sh. Manu
Sharma;
Both residents of House No.11, New Kalgidhar Avenue, near
Curo High Streets, Jalandhar.
....Complainants
Versus
1. Dr. Kulwant Singh, Orthopedic Surgeon at KGM Bone Hospital,
25, Gurjaipal Nagar, Cool Road, Jalandhar.
E-mail ID: [email protected]
2. Dr. Mukesh Joshi, Joshi Hospital, Kapurthala Chowk, Jalandhar.
E-mail ID:[email protected]
3. Dr. Varun Joshi, Joshi Hospital, Kapurthala Chowk, Jalandhar.
E-mail ID:[email protected]
4. Dr. Rajesh Saggar, Orthopedic Surgeon at Vedanta
Multispecialty Hospital, 18, Guru Ravi Dass Nagar, Jalandhar.
E-mail ID:[email protected]
5. Dr. Parshant Aggarwal, MD, DM (Immunology) Consultant
Rheumatologist & Immunologist, 96-B, Raj Guru Nagar,
Ferozepur Road, near Westend Mall, Ludhiana.
E-mail ID:[email protected]
6. The Oriental Insurance Company Limited, 4E/14, Azad Bhawan,
Jhandewalan Ext., New Delhi, Delhi-110055. (Policy Schedule
No.272200/48/2017/3598 for opposite party No.1).
7. The Oriental Insurance Company Limited, 4E/14, Azad Bhawan,
Jhandewalan Ext., New Delhi, Delhi-110055. (Policy Schedule
No.272200/48/2017/15793 for opposite party No.2).
8. The Oriental Insurance Company Limited, 4E/14, Azad Bhawan,
Jhandewalan Ext., New Delhi, Delhi-110055. (Policy Schedule
No.272200/48/2017/18191 for opposite party No.3).
Consumer Complaint No.886 of 2018 2
9. The Oriental Insurance Company Limited, 4E/14, Azad Bhawan,
Jhandewalan Ext., New Delhi, Delhi-110055. (Policy Schedule
No.272200/48/2018/6715 for opposite party No.4).
10. The Oriental Insurance Company Limited, 4E/14, Azad
Bhawan, Jhandewalan Ext., New Delhi, Delhi-110055. (Policy
Schedule No.272200/48/2018/1830 for opposite party No.5).
E-mail ID of OPs No.6 to 10:[email protected]
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member.
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued By:-
For the complainants : Ms. Anchal Thakur, Advocate For OPs No.1 to 5 : Sh. Puneet Sharma, Advocate For OPs No.6 to 10 : Sh. Vibhor Bansal, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT "We have not lost faith, but we have transferred it from God to medical profession." ...George Bernard Shaw.
A common man treats doctor as a God on the earth. One has tremendous faith in one's heart on the doctor. When one approaches a doctor, he completely surrenders to him/her. For this reason, medical professionals should shoulder their responsibilities with all care and caution to strengthen the doctor-patient relationship.
Relief Sought:
The complainants have filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), against Consumer Complaint No.886 of 2018 3 the opposite parties alleging medical negligence and deficiency in service on the part of opposite parties No.1 to 5, resulting into death of their daughter Jiya Sharma and sought following issuance of directions to them:
i) to refund the amount of expenses i.e. ₹8,06,300/- paid by the complainants to opposite parties No.1 to 5, along with interest at the rate of 12% per annum;
ii) to pay compensation of ₹25 lac for the mental agony and harassment suffered by the complainants due to non-providing of adequate service and adoption of unfair trade practice on the part of opposite parties No.1 to 5; and
iii) to pay litigation expenses to the tune of ₹2 lac.
iv) It has also been prayed that any other relief, as may be deemed fit in view of the facts and circumstances of the presence case, may also be awarded.
Facts of the Complaint
2. Brief facts, as set out in the complaint, are that Miss Jiya Sharma, daughter of the complainants, was a volleyball player and she had achieved so many academic and sports mile stones at her tender age. She lost her life due to collective medical negligence of opposite parties No.1 to 5. Copies of her certificates/achievements are Ex.C-1, including Ex.C-1/A to Ex.C-1/S. In third week of April, 2017, Miss Jiya Sharma (hereinafter to be referred as "patient") had complained about fatigue to the complainants. The complainants thought that she was feeling uneasiness due to the practice sessions, which were going on for Inter Cambridge (School) Volleyball Competition. On 10.05.2017 at Consumer Complaint No.886 of 2018 4 night, the patient complained of pain in her left knee for the first time. The complainants took her to Dr.Kulwant Singh, opposite party No.1 on 12.05.2017, who advised digital x-rays of both knees; which were accordingly got conducted. Vitamin D3 and blood tests were also advised and got done, in which ESR was found high as compared to the normal value. Thus, opposite party No.1 advised the complainants to visit/consult his associated hospital i.e. Joshi Super Specialty and Multispecialty Hospital, Jalandhar (hereinafter to be referred as "Joshi Hospital"). Copies of prescription slips and test reports of KGM Bone Hospital are Ex.C-2, including Ex.C-2/A to Ex.C-2/D.
3. On 16.05.2017, patient was got checked up from Dr. Mukesh Joshi, opposite party No.2, at Joshi Hospital and on his advice, full x-ray and blood tests of the deceased were got done, in which again the ESR was found more than the required value. Opposite party No.2 diagnosed the deceased with Arthritis and started giving medical treatment for the said disease. The complainants had no personal knowledge about medical science and, as such, they followed every advice of opposite party No.2, blindly. Opposite party No.2 started giving steroids to the patient and the complainants kept on giving all the treatment doses to her, as per his advice from 16.05.2017 to 08.07.2017. Copies of prescription slips and tests reports of Joshi Hospital are Ex.C-3, including Ex.C-3/A to Ex.C-3/H.
4. During this time, the complainants met opposite party No.2 many times, but he advised to continue with the same treatment. However, the patient continued to complain unbearable pain in her knee, which was increasing day by day. When the swelling of the Consumer Complaint No.886 of 2018 5 knee started increasing, her left knee also became warm and she started feeling difficulty while walking. Dr.Varun Joshi, opposite party No.3, who is son of Dr. Mukesh Joshi, opposite party No.2, and is working in the hospital of his father, recommended the complainants to get conducted serum calcium and vitamin tests of the patient. On asking about reasons about plight of the deceased, he told that such things are normal at that age and would be cured with the passage of time. Since the severe pain subsisted, so the complainants took the deceased to Dr. Rajesh Saggar, opposite party No.4, who is Orthopedic Surgeon at Vedanta Multispecialty Hospital, Jalandhar (hereinafter to be referred as "Vedanta Hospital") on 10.07.2017, in order to take second opinion. All the previous reports of the deceased were shown to opposite party No.4 and after examining the deceased, he reduced some doses of medicines and advised Anti CCP Test, which is performed for ruling out the disease of Arthritis. He also advised the patient to do some knee exercises and complainants also learnt those exercises, so that they can also help their daughter in performing the same. At that time, opposite party No.4 informed the complainants that their daughter was suffering from Arthritis and he would examine her and advise future course of treatment, after giving the prescribed treatment for the next 15 days. The anti CCP test was got done on 15.07.2017 and the reports were negative. After 15 days, i.e. on 26.07.2017, the complainants took their daughter to opposite party No.4 along with the reports of anti CCP test. Copies of prescription slip and test reports of Vedanta Hospital are Ex.C-4, including C4/A to C4/D. Consumer Complaint No.886 of 2018 6
5. It is further pleaded that the complainants continued to give treatment to their daughter, as per the prescription given by opposite party No.4. However, due to increasing and continuous pain in those 15 days, her knee got swollen more than before. The complainants got frightened on seeing her condition. She used to scream with pain daily at night and could not sleep well. Ultimately, seeing the worsening condition of their daughter, the complainants again met opposite party No.4, who asked the patient to walk, but due to swelling and severe pain, she could not walk properly. In fact, she was unable to put weight/pressure on her left leg. However, after examining Jiya, opposite party No.4 again told that she is suffering from Arthritis and he advised regular exercises. In fact, opposite party No.4 took the concerns of the complainants about serious condition of their daughter, lightly.
6. Later on, on the advice of opposite party No.4, the complainants took their daughter to Dr. Parshant Aggarwal, opposite party No.5 on 12.08.2017 at his clinic namely 'Punjab Rheumatology & Immunology Clinic, Ludhiana. At that time, she was on wheelchair. However, she was uncomfortable to sit on wheelchair as she was suffering a lot of pain. Opposite party No.5, after examining Jiya and the entire previous medical record, prescriptions given by opposite parties No.1 to 4, told that the dose of steroids could not be decreased immediately, but the same had been decreased by opposite party No.4 and the worsened condition of Jiya was due to wrong treatment given by opposite party No.4. after examining Jiya, opposite party No.5 increased the dose of steroids and informed the complainants that she Consumer Complaint No.886 of 2018 7 was suffering from "steroid dependent inflammatory oligoarthritis". Opposite party No.5 advised them to get conducted the complete heamogram, creatinine, sgot, sgpt, rbs, uric acid, urine routine, cxr((pa), x-ray pelvis with both hips AP view and HLA B 27 (PCR) test and to come after five days. All those tests were got done, but HLA B 27 was not detected. Her HB was 11.6, sgot was 50, TLC was 17.09, CRP 112, ESR 90 and PLT was 519, which were more than required value. The complainants along with Jiya again visited opposite party No.5 on 17.08.2017, who after examining her prescribed medicines and advised tests of complete heamogram, PBF to look for any immature cells CRP quantitative, creatinine, sgot, sgpt and S-Bilirubin done and to revisit his clinic after two weeks. At that time, complainants also informed opposite party No.5 that their daughter was feeling pain in her left knee and she screamed with pain at night. Jiya started sweating at night on face and body. Opposite party No.5 casually said that she had to bear pain and the sweating was due to weather of July month and she would improve in next two weeks. Later on, the complainants came to know that the sweating was also a symptom of cancer. Jiya always went on wheelchair to opposite party No.5's clinic. Even after 15 days of medical treatment given by opposite party No.5, the complainants got astonished that blood count of Jiya got reduced from 11.6 gm to 9.3 gm and her eyes got bulged out on 01.09.2017. Even a swollen part i.e. lymphnodes appeared on her left side of neck and right side of head. The complainants got worried and on the next day i.e. 02.09.2017, they took their daughter to opposite party No.5, who after checking all the reports gave Consumer Complaint No.886 of 2018 8 medicines/prescription and again advised tests of complete heamogram, PBF, CRP quantitative, creatinine, sgot, sgpt ANCA IF, urine routine, MRI orbits screen cervical spine done. On that day also, the eyes of Jiya had bulged out and blood level was also found reduced. The complainants requested opposite party No.5 to give any treatment, so that Jiya could get some relief. Opposite party No.5 prescribed some iron tablets, so that blood level can be increased and advised to come after 15 days. Upon asking questions about the serious condition of Jiya, bulging out of her eyes and reduced HB, opposite party No.5 behaved rudely with the complainants and told them to take their daughter to any other doctor. Copies of the prescription slip and test reports of Punjab Rheumatology & Immunology Clinic are Ex.C-5, including C5/A to C5/M.
7. It is further averred that on 03.09.2017, the complainants took Jiya to Dr. Sandeep Goel, M.D. (Doctorate of Medicine), D.M. (Neurology) at Goel Hospital, Jalandhar, who after examining her, advised MRI of Head & Neck and MRI left Knee joint. He advised immediate admission of Jiya and also informed the complainants that previously no proper treatment was provided to Jiya. Accordingly, the complainants got MRIs done from Super Scanning & Diagnostics Pvt. Ltd. and tests were conducted by Dr. G. S. Bholla, M.D. Radio Diagnosis, who informed complainants that their daughter was suffering from metastatic tumor. He also showed his anguish about previous treatment given by opposite parties No.1 to 5 and advised immediate admission in the hospital and stop going to previous doctors. The complainants got shocked and became tensed about the Consumer Complaint No.886 of 2018 9 condition of their daughter. Copies of the prescription slip and test reports of Goel Hospital are Ex.C-6, including C6/A to C6/C.
8. It is further averred that on the next day i.e. 04.09.2017, after obtaining the reports, the complainants visited DMC & Hospital Ludhiana without any delay and she was immediately admitted in the hospital in ICU Oncology. The doctors and nurses present at that time informed that Jiya was suffering from severe disease (cancer) and her condition was very critical and why better treatment was not provided to her earlier. They also informed that if proper treatment was initially given, the condition of Jiya would have been different. The complainants requested the doctors at DMC & Hospital to provide the best treatment to their daughter in order to save her life, but the doctors informed that the chances of survival of Jiya were very less and the cancer cells might have entered other parts of the body. On the advice of the doctor, whole body PET CT scan was conducted and it was found that Jiya was having :-
FDG Avid Heteregeneous enhancing mass lesion left mid thigh region with associated lytic sclerotic changes mid and distal shaft. metaphyseal region left femur AS Described - likely malignant-possibilities to be considered are lymphoma/ sarcoma-suggested HPE correlation.
FDG Avid Lesion involving lymph nodes (mediastinal, Left Superaclavicular, Left Inguinal, Left External ILIAC), Lungs, Bone and Multiple Subcutaneous Scalp Lesions - Likely Metastatic Consumer Complaint No.886 of 2018 10 FDG Avid Lesion Paraspinal Region with extension into neural foramen C3 to C5 vertebrae encasing spinal cord-likely metastatic.
FDG uptake in visualized marrow of axial and Appendicular Skeleton as described - Likely involvement.
It is further averred that as per Histopathology Report, small round cell tumor, trucut biopsy-thigh lesion were found. The Biopsy report showed Ewing sarcoma tumor, which was metastatic tumor. Due to metastasis, Jiya could not survive and died on 26.09.2017 at 12.51 AM. Copies of the prescription slip, medical record and medical bills of Dayanand Medical College & Hospital Managing Society are Ex.C-7, including C7/A to Ex.C7/EI. Copies of death reports including Death Certificate are Ex.C-8, including Ex.C8/A to Ex.C8/D.
9. The beloved daughter of the complainants died at the age of 13 due to the collective negligence of opposite party No.1 to 5. The complainants had followed their each and every advice. However, the approach of opposite party No.1 to 5 was casual towards precious life of Jiya. Despite noticing that ESR and CRP were out of range, they kept on experimenting on Jiya and dealt her disease in a very negligent and unprofessional manner.
10. The complainants incurred following expenses in various hospitals:-
Sr. No. Name and Fee Paid Expenses Expenses Total (in Doctor and on on ₹) Hospital prescribed prescribed medicines test, x-
rays, MRI
1. K.G.M.Bone ₹200/- - ₹2,000/- ₹2,200/-
Hospital Consumer Complaint No.886 of 2018 11
2. Joshi Hospital ₹1,200/- ₹2,400/- ₹3,000/- ₹6,600/-
3. Vedanta ₹300/- ₹1,500/- ₹2,600/- ₹4,400/-
Multispecialty Hospital
4. Punjab ₹1,300/- ₹1,800/- ₹40,000/- ₹43,100/-
Rheumatology and Immunology Clinic
5. DMC & - - - ₹7,50,000/-
Hospital,
Ludhiana
Total ₹8,06,300
11. The complainants sent legal notice to the opposite parties, requesting them to refund the amount of aforesaid expenses, along with interest @ 12% per annum and to pay compensation of Rs.25 lacs as compensation, but to no effect. The aforesaid act and conduct of opposite parties No.1 to 5 amount to medical negligence and deficiency in service. Hence, the present complaint. Defence of the Opposite Parties
12. Upon notice, opposite parties No.1 to 5 appeared and filed their separate replies. They also filed Misc. Applications for impleading opposite parties No.6 to 10 being their insurers; which were allowed. Upon notice, opposite parties No.6 to 10 appeared. Opposite parties No.6, 9 and 10 filed their separate replies and opposite parties No.7 & 8 filed their joint reply.
13. Opposite party No.1, in his reply, raised preliminary objections/submissions that the complaint is not maintainable and it is the misuse of provisions of the Act. The complainants have attributed medical negligence towards the answering opposite party without even understanding the nuances of ailment suffered by the patient and Consumer Complaint No.886 of 2018 12 differential diagnosis between juvenile arthritis and likelihood of having juvenile arthritis to the remoteness of having Ewing Sarcoma has to be appreciated and understood in order to understand the efforts made by answering opposite party to treat the deceased. The complaint, having multifarious allegations, required lengthy and cogent evidence in order to establish the same.
14. It is pleaded that the answering opposite party is an Orthopedic Surgeon having done his MBBS in the year 1981 from Guru Nanak Dev University and thereafter M.S. (Orthopedics) from the same University in the year 1985. He is well renowned Orthopedic Surgeon duly registered with the Punjab Medical Council. Copies of his degree/certificates, renewal certificate etc. are Ex.OP-1(colly.).
15. On merits, it is admitted that on 12.05.2017 patient Jiya Sharma had complained of pain in both knees since last two weeks and the answering opposite party had advised various investigations, such as x-ray of knees, complete blood count, CBC, ESR, vitamin D3 test etc. Initially, he suggested medicines i.e. mild pain killer and calcium, Tab. Nojesia AC and Cap. Calcilong plus respectively for two days. However, on getting to know about raised ESR (65), Tab. Sigil SP (anti-inflammatory pain killer) & Tab. EMP4 (mild steroid 4 mg.) were prescribed only for 1 day and the patient was advised to visit on the next day with all the investigations. However, the patient never came to him for follow up. Thus, there was no occasion for making any further diagnosis based on the investigations nor he ever referred the patient to Joshi Hospital. It is denied that Joshi Hospital is the associated hospital of the answering opposite party. The answering Consumer Complaint No.886 of 2018 13 opposite party treated the patient in utmost professional manner, which is evident from prescription slip dated 12.05.2017, wherein all the investigations have been prescribed along with medicines. The answering opposite party had charged only ₹200/- as consultation fee, which is on lower side and rest of the expenses were charged by the diagnostic centre. It is further pleaded that the patient was eventually diagnosed to be suffering from a very rare kind of ailment i.e. Ewing Sarcoma, which has overlapping symptoms with juvenile arthritis. Ewing Sarcoma takes approximately 16-19 weeks, before it is diagnosed. All other allegations levelled in the complaint have been denied and dismissal thereof with costs has been prayed.
16. Opposite parties No.2 & 3, in their reply, raised similar preliminary objections/submission, as taken by opposite party No.1. It is further pleaded that opposite party No.2-Dr. Mukesh Joshi, is an Orthopedic Surgeon, having done his MBBS in the year 1980 from Govt. College, Amritsar and M.S. (Ortho) in the year 1984 from GMC, Amritsar. He is practicing as Orthopedician (Trauma and Joint Replacement Surgeon) since last 34 years and has done various national and international fellowships in the said fields. Copies of his degree/certificates along with renewal certificate etc. are Ex.OP- 2/1(colly.).
17. Similarly, opposite party No.3-Dr. Varun Joshi is an Orthopedic Surgeon, having done his MBBS in the year 2013 from Jawaharlal N.M.C., Wardha, Nagpur and further completed his M.S. (Orthopedics) from M.G.M. College, Mumbai in the year 2016. He is practicing as specialist Orthopedic Surgeon at Joshi Hospital, Consumer Complaint No.886 of 2018 14 Jalandhar. Copies of his degree/certificates along with renewal certificate etc. are Ex.OP-2/2(colly.).
18. On merits, it is pleaded that at the time of clinical diagnosis, the patient was stated to have pain in B/L (both legs) knees joints. Perusal of Ex.C-2 shows that the patient was investigated by opposite party No.1 for said pain for two weeks. X-rays both knees AP- Lateral, investigations like DSR, CBS, Uric Acid, RA factor, ASO, S. Calcium and vitamin-D were advised on 12.05.2017, which were got done from Dr. Lal Path Lab. and KGM Hospital, Dr. Prem Singh Clinical Lab. on 12.05.2017 and 13.05.2017. The patient came to opposite party No.2 on 16.05.2017 and on the basis of complaints and symptoms, the initial diagnosis was of reactive arthritis (post viral). The patient was disclosed to be a sports girl. Thus, having knee joint pain, along with swelling is a natural corollary of wear and tear of a sports person. After seeing the reports of x-rays and investigations done by opposite party No.1 on 12.05.2017 and 13.05.2017, only vitamin-D deficiency and ESR raised with normal x-rays were noted on the prescription slip. Opposite party No.2 further advised initial investigations, like ESR, CRP and Skiagram of both lower limbs (Skiagram is x-rays imaging of both hips, thigh bones, knee joints, leg bones and ankle joints in order to evaluate anatomy/structure of bones and joints and lower limbs and alignment of all bones and joints). In x- ray record register, Sr. No.7 and ID No.16812 at 11.45 AM and reporting time i.e. 12.17 PM of patient were noted. As per reports of Alfa Clinical Lab. & Diagnostic Centre (Reputed Lab.), ESR was 34, CRP title was 16, HB was normal, TLC was 10870, WBC was 63.5 Consumer Complaint No.886 of 2018 15 and skiagram of full lower limbs was also normal. Copies of x-ray record register and x-ray report are Ex.OP-2/3 (colly.).
19. It is further pleaded that the clinical history/investigation at the time of presentation of the patient was as under:
1) Sports girl Volleyball player with pain in both knee joints can be because of abnormal stress/strain while playing volleyball i.e. reactive arthritis traumatic.
2) Past history of viral fever with both knee pain and ESR raised, CRP positive, vitamin-D deficiency, no anemia and no increase in WBC cells are indicative of reactive arthritis post viral?. As investigated by opposite party No.1, x-ray of both knees, CBC, ESR, uric acid, RA factor, ASO, C. Calcium, vitamin-D and seen by opposite party No.2 only, there was vitamin-D deficiency and raised ESR.
20. It is further pleaded that the patient was given treatment, keeping in view the aforesaid investigations. Opposite party No.2 prescribed only predominantly pain killers and muscle relaxants apart from anti-inflammatory and vitamin D-3 as well. Further on the basis of complaints of patient and re-conducting of ESR and CRP, opposite party No.2 again prescribed medicines for reduction of pain, apart from anti-inflammatory (reactive arthritis) medicines and mild steroid i.e. Impred. After one month of treatment with follow ups on 02.06.2017 and 19.06.2017, her pain was reported to be better (40% pain) and swelling of knees was also reduced. So, more or less, the same medicines were repeated. However, on 08.07.2017, on account of similar symptoms with aggravation of pain from last 3-4 days in left Consumer Complaint No.886 of 2018 16 knee along with raised ESR and CRP, opposite party No.3 advised serum calcium and vitamin D-3 tests. Thereafter, the patient never returned for further treatment from opposite parties No.2 & 3. Reference has been made to Text Book namely "International Edition Campbell"s Operative Orthopedics Volume One Twelfth Edition (Page No.918) (Part VIII Tumors) Ewing Sarcoma, (Annexure I) Ex.OP-2/4 (colly.).
21. It is further pleaded that as there was no fever or increase in WBC count and lower limbs x-rays were normal, so possibility of osteomyelitis or tumor cannot be suspected at early stage. There are numerous causes of knee joints pain along with such symptoms. Common diseases are reactive arthritis (post viral, post traumatic), early arthritis (JRA). Reference to medical literature namely "Abeloff's Clinical Oncology Fourth Edition (Page No.1984 (Ewing Sarcoma), Ex.OP-2/5 (colly.) and "Principals & Their Applications: Samuel L Turek Fourth Edition Vol. I Ex.OP-2/6 (colly.) has been made.
22. It is further pleaded that clinical features are easily confused with other conditions like arthritis, leukemia etc. It is denied that opposite parties No.2 & 3 were negligent in any manner or they adopted any casual approach. The answering opposite parties have treated the patient in utmost professional manner, as is evident from prescription slips dated 16.05.2017, 02.06.2017, 19.06.2017 and 08.07.2017. They had charged only the consultation fee of ₹1,200/-, which is on lower side and rest of the expenses were charged by the diagnostic centre. Denying all other allegations levelled in the complaint, dismissal thereof with costs has been prayed. Consumer Complaint No.886 of 2018 17
23. Opposite party No.4, in his reply, raised similar preliminary/objections, as raised by opposite parties No.1 to 3. It is pleaded that the answering opposite party is an experienced Orthopedic Surgeon, having 21 years of experience. He did his MBBS in the year 1993 and thereafter MS in the year 1997 from Government College, Amritsar. He stood third in Post Graduate Entrance Test. The answering opposite party was a Senior Resident at Batra Hospital, New Delhi for six months and thereafter he was also trained in joint replacement in PGI for six months and six weeks. The answering opposite party served in Govt. job for 4 years and then joined as private doctor as Consultant with Vassal Multispecialty Hospital at Jalandhar for 12 years and now he is Consultant in Vedanta Multispecialty Hospital, Jalandhar for the last three and half years. He is practicing as a Joint Replacement and Sports Injury and Trauma Surgeon. He is ECFMG Certified (USA). He has been continuously upgrading himself by attending various conferences, CME's, Cadaveric and Live Surgical workshops in India and abroad. Copies of his testimonials/certificates are Ex.OP-4/1 (colly.).
24. On merits, it is pleaded that the patient visited the answering opposite party at Vedanta Hospital on 10.07.2017. After going through her past history, investigations and treatment given by opposite parties No.1 to 3, the answering opposite party found ESR of the patient to be 64 (raised), CRP 29 (raised), RA factor negative, S- vitamin level 34 ng% (lower range of normal), x-rays normal not showing any onion peel appearance and increased density of the bone. Hence, the actual disease could not be detected. Reference to Consumer Complaint No.886 of 2018 18 "Principals & Their Applications: Samuel L Turek Fourth Edition Vol. I has been made. The answering opposite party thought of few differential diagnosis like juvenile arthritis (increased in ESR, CRP and negative RA factor, which can be negative in juvenile arthritis), reactive arthritis (had a history of fever), infection around knee joint, osteomyelitis (as acute phase reactants were higher but RA factor was negative), vitamin-D deficiency and sports injury. On clinical diagnosis, the answering opposite party advised to conduct Anti CCP on 10.07.2017 and prescribed three weeks medicines, particularly for addressing vitamin-D deficiency (Carcirol), anti-inflammatory-Tab. Sazo EN, which is primarily a disease modifying agent and Neprosin SR (an anti-inflammatory drug). The answering opposite party stopped low dose steroid, because he did not want to give steroids till the accurate diagnosis is done. Anti CCP test was done to confirm diagnosis of juvenile RH arthritis. The patient again visited the answering opposite party on 26.07.2017 and anti CCP test, which was negative. The answering opposite party advised more or less the same treatment, but addition of Cyra i.e. medicine for gastritis was also prescribed. The patient was also prescribed Lonol, an anti- inflammatory drug. ESR and CRP tests were also advised. The answering opposite party had not definitely termed the ailment as arthritis, in view of negative report of anti CCP test. Therefore, the answering opposite party thought it fit to advise the complainants to take opinion of Rheumatologist/ Immunologist and referred the patient to Dr. Prashant Aggarwal. It is further contended that the answering opposite party was very much careful with regard to symptoms and Consumer Complaint No.886 of 2018 19 clinical examination of the ailments of the patient and he treated her with utmost care and caution. There is no medical negligence on his part while treating the patient. Reference to the article Campbell"s Operative Orthopedics (Volume One) Twelfth Edition, Ex.OP-4/2 (colly.) and articles relied upon by other opposite parties has been made. It is further pleaded that opposite party No.4 had charged only ₹300/- as consultation fee, which is on lower side and rest of the expenses were charged by the diagnostic centre. All other allegations levelled in the complaint were denied and it has been prayed that the complaint be dismissed with costs.
25. Opposite party No.5, in his separate reply, also raised similar preliminary objections, as raised by opposite parties No.1 to 4. It is further pleaded that opposite party No.5 is an Immunologist and Rheumatologist, having done his MBBS in the year 1997 and completed his MD from DMC, Ludhiana in the year 2002. Thereafter, he did his D.M. from SGPGIMS, Lucknow in the year 2005. He is well renowned and specialist in clinical Rheumatology and Immunology. He is duly registered with the Punjab Medical Council. He has attended various conferences and done courses in the said stream and he is an expert holding the highest medical question in India i.e. D.M. Opposite party No.5 has been awarded with Indo-UK Rheumatology Fellowship, in which he further enhanced his skill of dealing with patients of Pediatric Rheumatology at Bristol U.K. Copies of his degree/certificates etc. are Ex.OP-5/1(colly.).
26. On merits, it is pleaded that on account of complicated condition and differential diagnosis of the patient, opposite party No.4 Consumer Complaint No.886 of 2018 20 had recommended her to consult the answering opposite party. The patient came to the answering opposite party for the first time on 12.08.2017. He did not overlook any clinical finding or medical detail of the patient, nor was casual in his approach. The patient was presented with pain, swelling of knee and warmth on touching, along with difficulty in walking. Her investigations showed elevated ESR, CRP; which were consistent with diagnosis of arthritis. So treating the patient for arthritis was correct option. Even most of the specialists consulted by the patient also agreed to the diagnosis of arthritis. The answering opposite party diagnosed her ailment as "steroid dependent inflammatory oligoarthritis along with lower back pain". He advised various investigations, along with important tests i.e. HLAB27, which was not got done earlier. Complete haemogram with PBF [(Peripheral Blood Film) to look for immature cells] is done to detect cancer. Five days' medicines were prescribed by answering opposite party, as per present diagnosis of the patient, in order to cope up with illness and trauma. It is denied that the answering opposite party had ever told that opposite party No.4 had given wrong treatment to the patient. In fact, the answering opposite party continued with same medication, more or less, as is evident from prescription slip dated 12.08.2017. The patient again visited him on 17.08.2017. However, in the absence of results of aforesaid investigations, the answering opposite party could not further diagnose anything, other than the previous one. The patient again came for follow up on 02.09.2017, i.e. after two weeks with investigations' results of HLAB27 and PBF. Report of HLAB27 was negative and PBF showed slightly reduced platelets and reduced Consumer Complaint No.886 of 2018 21 Hb in blood cells, depicting anemia with increased TLC. Since no immature cells were found, so while advising further investigation of ANCA-IF, MRI, the answering opposite party further referred the patient for neurology consultation on account of fresh symptoms of left Exophthalmos diplopia i.e. eye bulging out and double vision. Bulging of eyes can also been seen in vasculitis which is a rare form of arthritis, including cancer. Furthermore, bulging of eyes can also be found due to various other reasons, that is why Dr. Sandeep Goyal advised thyroid test and his prescription does not mention the possibility of cancer. The case of the patient was difficult one, with lot of atypical features and different diagnosis. It is further pleaded that MRI is not a conclusive diagnosis, but only a suggestive one. Perusal of complaint shows that the patient was discovered to have Ewing Sarcoma, a rarest kind of cancer/tumor. It is expedient to enumerate the classification and nomenclature of chronic arthritis in children, which is symptomatic by swelling, pain, limited range of motion of the joint(s) and increased heat at the joint. Reference to medical literature Ex.OP-5/2 (colly.) has been made. The answering opposite party had followed the standard medical protocols, as per algorithm for musculoskeletal complaint as depicted in Harrisons Principles of Internal Medicine, Ex.OP-5/3. It is further pleaded that spondyloarthritis (SpA) presents with joint pain, low back pain, elevated CRP and the presence of HLA B27 would have confirmed the diagnosis. In the absence of further determinant investigations with the probabability of juvenile arthritis at that stage, it was but natural to onset a treatment on the said lines. Copy of relevant literature i.e. Consumer Complaint No.886 of 2018 22 Chapter IX "Chronic Arthritis in Childhood" from "Text Book of Pediatric Rheumatology" is Ex.OP-5/4.
27. It is further pleaded that the patient was eventually diagnosed with Ewing Sarcoma, for which it is a well researched and established fact that bone and soft tissues sarcomas represent approximately 1% of all malignant tumors. Delays in diagnosis are frequent, because of their rarity and the clinical features are easily confused with other conditions. Sarcomas are relatively rare group of tumors, which can be broadly categorized into soft tissues sarcomas, comprising approximately 1% tumors in the UK and 2% of cancer deaths and bone sarcomas. Copy of relevant medical literature is Ex.OP-5/5. It is further pleaded that prescription slips dated 12.08.2017, 17.08.2017 and 02.09.2017 clearly prove that opposite party No.5 had been very vigilant and thoughtful, while treating the patient and there is no medical negligence on his part. He charged only ₹1,300/- as consultation fee; which is on lower side and rest of the expenses were charged by the diagnostic centre. Denying all other allegations levelled in the complaint, it has been prayed that the complaint be dismissed with costs.
28. Opposite party No.6, in its reply, pleaded that opposite party No.1 was insured with it, vide Professional Indemnity-Doctors Policy Schedule, Ex.R-6/1, for sum assured of ₹5,00,000/-; which was valid from 19.05.2016 to 18.05.2017. The retroactive date of that policy was 19.05.2013. Opposite party No.6 adopted the defence taken by opposite party No.1, being his insurer. It is further pleaded that major part of the claim of treatment expenses i.e. ₹7,50,000/- out of alleged Consumer Complaint No.886 of 2018 23 medical expenditure has been spent at DMC & Ludhiana, which has not been made party. The claim proved against opposite party No.6, if any, shall be subject to terms and conditions of the aforesaid insurance policy. However, since no specific negligence, error or omission has been attributed towards opposite party No.1, nor any specific negligence has been proved, so the complaint is liable to be dismissed.
29. Opposite parties No.7 & 8 in their reply, pleaded that opposite party No.2 was insured with it, vide Professional Indemnity- Doctors Policy Schedule, Ex.R-7/1, for sum assured of ₹10,00,000/-; which was valid from 02.11.2016 to 01.11.2017. The retroactive date of that policy was 02.11.2015. Opposite party No.7 adopted the defence taken by opposite party No.2, being his insurer.
30. It is further pleaded that opposite party No.8 issued Error and Omission-Medical Establish Policy, Ex.R-8/1, in favour of M/s Joshi Multi Superspecialty Hospital for sum assured of ₹10 lac, which was valid from 07.12.2016 to 06.12.2017. The retroactive date of that policy was 07.12.2015. Name of opposite party No.3 is not mentioned in that policy. Thus, opposite party No.8 cannot be held liable to indemnify any claim against opposite party No.3. Thus, the complaint against opposite party No.8 is liable to be dismissed. Similar other pleas, as taken by opposite party No.6, have been reiterated. It is further pleaded that since no specific negligence, error or omission has been attributed towards opposite party No.2, nor any specific negligence has been proved, so the complaint is liable to be dismissed.
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31. Opposite party No.9, in its reply, pleaded that opposite party No.4 was insured with it, vide Professional Indemnity-Doctors Policy Schedule, Ex.R-9/1, for sum assured of ₹15,00,000/-; which was valid from 25.06.2017 to 24.06.2018. The retroactive date of that policy was 25.06.2015. Opposite party No.9 adopted the defence taken by opposite party No.4, being his insurer. It is further pleaded that the claim proved against opposite party No.9, if any, shall be subject to terms and conditions of the aforesaid insurance policy. Similar other pleas, as taken by opposite parties No.6, have been reiterated. However, since no specific negligence, error or omission has been attributed towards opposite party No.4, nor any specific negligence has been proved, so the complaint is liable to be dismissed.
32. Opposite party No.10, in its reply, pleaded that opposite party No.5 was insured with it, vide Professional Indemnity-Doctors Policy Schedule, Ex.R-10/1, for sum assured of ₹10,00,000/-; which was valid from 25.04.2017 to 24.04.2018. The retroactive date of that policy was 25.04.2013. Opposite party No.10 adopted the defence taken by opposite party No.5, being his insurer. The claim proved against opposite party No.9, if any, shall be subject to terms and conditions of the aforesaid insurance policy. Similar other pleas, as taken by opposite parties No.6, have been reiterated. However, since no specific negligence, error or omission has been attributed towards opposite party No.5, nor any specific negligence has been proved, so the complaint is liable to be dismissed.
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33. Replications have been filed, in which the averments of the complaint have been reiterated and that of replies filed by all the opposite parties have been controverted.
Evidence of the Parties
34. The complainants, in order to prove their claim, filed their own affidavits, along with copies of documents i.e. certificates/achievements of the patient Ex.C-1, including Ex.C-1/A to Ex.C-1/S, prescription slips and test reports of KGM Bone Hospital Ex.C-2, including Ex.C-2/A to Ex.C-2/D; prescription slips and tests reports of Joshi Hospital are Ex.C-3, including Ex.C-3/A to Ex.C-3/H; prescription slip and test reports of Vedanta Hospital Ex.C-4, including C4/A to C4/D; the prescription slip and test reports of Punjab Rheumatology & Immunology Clinic Ex.C-5, including C5/A to C5/M; prescription slip and test reports of Goel Hospital are Ex.C-6, including C6/A to C6/C; prescription slip, medical record and medical bills of Dayanand Medical College & Hospital Managing Society Ex.C-7, including C7/A to Ex.C7/EI; death reports including Death Certificate Ex.C-8, including Ex.C8/A to Ex.C8/D and legal notice along postal receipts Ex.C-9 Ex.C-9/A. The complainants have also placed on record medical reports of their son, Devansh Sharma, as Ex.CX (colly.), along with replication.
35. Opposite party No.1, in support of his defence, filed his own unattested affidavit, along with copies of his degree/certificates along with renewal certificate etc. Ex.OP-1/1(colly.) and Insurance Policy, Ex.OP-1/2.
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36. Opposite parties No.2 & 3, in support of their defence, filed the unattested joint affidavit, along with copies of documents i.e. degree/certificates along with renewal certificate etc. of opposite party No.2 Ex.OP-2/1(colly.), degree/certificates along with renewal certificate etc. of opposite party No.3 Ex.OP-2/2(colly.), x-ray record/register and x-ray report are Ex.OP-2/3 (colly.); medical literature-Text Book namely "International Edition Campbell's Operative Orthopedics, Volume One, Twelfth Edition (Page No.918) (Part VIII Tumors) Ewing Sarcoma, (Annexure I) Ex.OP-2/4 (colly.).; medical literature namely "Abeloff's Clinical Oncology, Fourth Edition, (Page No.1982-94 (Ewing Sarcoma), Ex.OP-2/5 (colly.); and "Orthopaedics: Principals & Their Applications: Samuel L Turek, Fourth Edition, Vol. I, Page-644 Ex.OP-2/6 and insurance policies Ex.OP-2/7 (colly.).
37. Opposite party No.4, in support of his defence, filed his own unattested affidavit, along with copies of documents i.e. testimonials/certificates of opposite party No.4 Ex.OP-4/1 (colly.); article Campbell"s Operative Orthopedics (Volume One), Twelfth Edition, and other articles Ex.OP-4/2 (colly.) and insurance policy Ex.OP-4/3.
38. Opposite party No.5, in support of his defence, filed his own unattested affidavit, along with copies of documents i.e. his degree/certificates etc. Ex.OP-5/1(colly.); medical literatures Ex.OP- 5/2 to Ex.OP-5/5 and insurance policy Ex.OP-5/6.
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39. Opposite party No.6, in support of its defence, filed affidavit of Sh. Balbinder Singh, Manager, along with copy of "Professional Indemnity Doctors Policy Schedule, Ex.R-6/1.
40. Opposite parties No.7 & 8, in support of their defence, filed affidavit of Sh. Balbinder Singh, Manager, along with copies of "Professional Indemnity Doctors Policy Schedule, Ex.R-7/1 and Error and Omission-Medical Establishment" policy Ex.R-8/1.
41. Opposite party No.9, in support of its defence, filed affidavit of Sh. Balbinder Singh, Manager, along with copy of "Professional Indemnity Doctors Policy Schedule, Ex.R-9/1.
42. Opposite party No.10, in support of its defence, filed affidavit of Sh. Balbinder Singh, Manager, along with copy of "Professional Indemnity Doctors Policy Schedule, Ex.R-10/1. Contentions of the Parties
43. We have heard learned counsel for the parties and also perused the written arguments submitted on behalf of the parties and record carefully.
44. The written arguments submitted on behalf of the complainants are on the lines of averments of the complaint. The sum and substance of oral and written arguments is that their deceased daughter namely Jiya Sharma started complaining pain in her left knee and they took her to the opposite parties No.1 to 5 for her treatment. Opposite parties No.1 to 5 did only the blood tests and X-Rays and diagnosed her to be suffering from Arthritis. Since May, 2017 till the end of August, 2017, the patient was given steroids by opposite parties No 1 to 5 despite the fact that there was no relief to her, rather her Consumer Complaint No.886 of 2018 28 pain was increasing day by day. Moreover, none of opposite parties No.1 to 5 got conducted CT-Scan or MRI of the patient at any point of time while treating her. The condition of the patient was deteriorating day by day and she was unable to bear the pain. Gradually, she could not walk and she came on wheel chair, but there was no differential diagnosis done by opposite parties No.1 to 5. From the prescriptions slips of opposite parties No.1 to 5, it is quite evident that how unprofessionally and negligently they have treated the patient despite the fact that her blood reports were showing the infection at the higher level and her knee was warm and red, but no relevant investigation was conducted by opposite parties No.1 to 5 to rule out the actual cause of the same. Rather, they kept on calling her after interval of fifteen days and advising the complainants to give same medicines and advising repeated tests again and again. It was only for the first time in September, 2017 when the patient was taken to Dr. Sandeep Goel that her MRI was done, from where it came to the knowledge that she was suffering from cancer and thereafter she died within span of 10-15 days i.e. on 26 September, 2017 as her cancer was metastatic tumor. Opposite parties-wise arguments are as follows:
Role of opposite party No.1 (Period of treatment: 12.05.2017 to 15.05.2017)
45. It has been contended that the complainants brought their daughter to opposite party No.1 on 12.05.2017, who is an Orthopedic Surgeon at KGM Bone Hospital, Jalandhar. He advised complainants to conduct digital X-rays of both knees, which were got done. On the further advice, vitamin D3 test & the blood tests were conducted in Consumer Complaint No.886 of 2018 29 which ESR was found more as compared to required value. Hence, opposite Party No.1 advised complainants to meet his associated Hospital i.e. Joshi Hospital. The patient complained about pain in left knee only and she never complained of pain in both the knees, as alleged by opposite party No.1 in its reply. This clearly shows that opposite party No.1, without properly listening to the patient, advised X-Ray of both the knees, whereas X-Ray of left knee was only required. Moreover, the X-ray reports were never handed over to the complainants. As the X-ray was done from the KGM Bone Hospital, where the opposite party No.1 is doing his practice, so all the reports of the X-ray are still in his possession. As per Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulation, 2002, a doctor/hospital is required to preserve medical record for three years and non-production of such record, amounts to deficiency in service on the part of opposite party No.1.
Role of opposite parties No.2 & 3 (Period of treatment-16.05.2017 to 08.07.2017)
46. It has been contended that on 16.05.2017, the complainants took the patient to Joshi Hospital, where opposite party No.2 examined her and on the advice of opposite party No.2, full X- Ray and blood tests were got conducted in which ESR was again found more than the required value. Opposite party No.2 informed the complainants that the patient was diagnosed with Arthritis and he started giving her medical treatment for Arthritis. He started giving steroids to the patient and the complainants kept on giving all the treatment which was advised by opposite party No.2. However, the Consumer Complaint No.886 of 2018 30 patient continued to suffer pain on her knee, which was unbearable and was increasing day by day. When the swelling on the knee started increasing, her left knee also became warm to touch and she felt difficulty in walking. Only thereafter, opposite party No.2's son namely Dr. Varun Joshi (Opposite Party No.3), who is also a doctor and working in the hospital of opposite party No.2, recommended the complainants to get conducted Serum Calcium and Vitamin tests of the patient, but when they asked about the reasons, he said that these things are normal at this age and will be cured with the passage of time.
47. Opposite parties Nos. 2 & 3 had never diagnosed the patient with Juvenile Arthritis, rather they diagnosed her with Reactive Arthritis as mentioned in their prescription slips Ex.C-3 (colly.), including Ex.C3/A to Ex.C3/H. The Juvenile Arthritis and Reactive Arthritis are two totally different forms of Arthritis. As a matter of fact, the patient was never ever diagnosed with Juvenile Arthritis by opposite parties No.2 & 3. The plea of opposite parties No.2 & 3 is self contradictory and clearly shows that they are misleading this Commission. Opposite party Nos.2 & 3 never prescribed any other tests for doing the differential diagnoses. They kept on advising the blood tests and prescribing steroids. If opposite parties Nos.2 & 3 would have opted for differential diagnoses, the life of the patient could have been saved. Opposite parties Nos.2 & 3 without properly listening to the patient, advised her to get the X-Rays of both hips, thigh bones, knee joints, leg bones and ankle points and other blood tests; which were already conducted 3-4 days prior coming to them. Consumer Complaint No.886 of 2018 31
48. It has been further contended that there was clear indication from the symptoms of patient that she was suffering from a serious disease and there was fluctuation in her ESR Report, still the opposite parties No.2 & 3 did not act vigilantly and treated her in a very casual manner and kept her on steroids for months. If they would have observed the symptoms of the patient, she would have been saved and she would have not to bear so much pain. The medical literature Ex.OP-2/4 relied upon by opposite parties No.2 & 3 clearly supports the case of the complainants, as no diagnoses was done by opposite parties No.2 & 3 despite the signs and symptoms of Ewing Sarcoma as shown in the patient. None of the doctors ever treated her for leukemia, even if it is a confused feature with other conditions like arthritis given by them. Thus, there was no proper diagnosis done by the opposite parties No.2 & 3. No history of the child (patient) was recorded. It was a perverse diagnosis as it is a diagnosis of exclusion, which is more common in adults suffering from genitor urinary diseases and sexually transmitted diseases and has strong association with HIV/AIDS. In a case of rheumatology, the standard medical practice states that diagnoses is done only after a thorough investigation and follow up protocol. The basis, on which diagnosis was made, is not clear. Strong medication was advised to a 12 years old child, which no prudent doctor would do, without ample evidence for the condition. This medication has side effects on the body parts such as bone marrow, kidneys, lungs etc. The child was put on steroids but there was no improvement in the pain, but still no differential diagnoses were done. Even the medical literature produced Consumer Complaint No.886 of 2018 32 by opposite party No.5, along with his reply as Ex.OP-5/3, under the head "Reactive Arthritis", in which the details about the disease Reactive Arthritis are given, does not support the basis of diagnosing the child (patient) as patient of Reactive Arthritis. Opposite parties No.2 & 3 were medically negligent while treating the patient. Role of opposite party No.4 (Period of treatment: 10.07.2017 to 26.07.2017)
49. It has been further contended that the patient was taken to opposite party No.4, who is Orthopedic Surgeon at Vedanta Multispeciality Hospital, Jalandhar on 10.07.2017. The complainants showed all the previous reports to him and after examining the patient, he reduced some doses of medicines and advised Anti CCP Test. He also advised the patient to do some knee exercises. Opposite party No.4 informed that the patient was suffering from Arthritis and prescribed the treatment to her for next 15 days. The report of anti CCP test made on 15.07.2017 were negative. However, the pain was subsisting and there was swelling also. Opposite party No.4 had never diagnosed the patient with Juvenile Arthritis, as alleged by him in his reply; rather he only told the complainants that she was suffering from Arthritis and he reduced the dose of steroids prescribed to her by the previous doctors and advised her to do some knee exercise. Opposite party No.4 was reckless and negligent while treating the patient, as he without any firm basis reduced the dose of steroids of the patient and despite the fact that her Arthritis report was negative, he was treating her for Arthritis only. The medical literature relied upon opposite party No.4 Ex.OP-4/2 itself clearly shows that the patient was showing the Consumer Complaint No.886 of 2018 33 symptoms of Ewing Sarcoma and no tests were prescribed by him for diagnosing cancer and the diagnoses done by opposite party No.4 were very vague and he overlooked the condition of the patient and treated her disease as a normal disease of arthritis.
50. It has been further contended that opposite party No.4 was also negligent as he kept the patient on steroids since May, 2017. The dose of steroids prescribed by the previous doctors was suddenly withdrawn. No LFT/RFT tests were advised to get done. No reason has been explained by opposite party No.4, as to why METHOTREXATE was withdrawn suddenly. No radiological test was advised to be done. Despite negative report of Arthritis, still no differential diagnosis was done to know the actual disease of the patient. The pain of the child was increasing, but same treatment was given to the child; which was not providing any relief to her. Role of opposite party No.5 (Period of treatment: 12.08.2017 to 02.09.2017)
51. It has been further contended that on advice of opposite party No.4, the complainants took their daughter to opposite party No.5 on 12.08.2017. By that time, the patient had gone on wheelchair. After examining her and all the previous medical record, prescriptions given by opposite parties No.1 to 4, he increased steroids dose and advised complainants to come after five days. He also advised various tests, which were got conducted. After seeing the reports, opposite party No.5 informed that the patient was suffering from steroid dependent inflammatory oligoarthritis. Despite treatment given by opposite party No.5, health of the patient continued to deteriorate and Consumer Complaint No.886 of 2018 34 even her eyes got bulged out on 01.09.2017. There appeared a swollen part i.e. lymphnodes on her left side of neck and on right side of head. Opposite party No.5 had never diagnosed the patient with Juvenile Arthritis, as alleged in his reply; rather he diagnosed her with steroid dependent inflammatory oligoarthritis. Juvenile Arthritis and steroid dependent inflammatory oligoarthritis are two totally different forms of Arthritis.
52. It has been further contended that the complainants have placed on record sufficient evidence to show the negligence of opposite parties No.1 to 5. Due to their medical negligence, the complainants lost their only daughter and they still have to bear the mental trauma and harassment due to the act & conduct opposite parties No.1 to 5. The younger brother of the deceased is living under a trauma that he will also die like her sister. The medical reports of the son of the complainants are Ex.CX (colly). The complainants are also living under the fear of losing their son also, who is also complaining of having pain in his knees. Opposite parties Nos.1 to 5 never took the condition of the patient seriously. The complainants have also submitted written rebuttal arguments to the written arguments of opposite parties No.1 to 5. It has been contended that the act and conduct of opposite parties No.1 to 5 amount to medical negligence and deficiency in service. Hence, the complainants are entitled to all the reliefs, as prayed for in the complaint. In support of his contentions, learned counsel for the complainants have relied upon following cases:
i) Arun Kumar Manglik v. Chirayu Health and Medicare Pvt.
Ltd. & Anr. 2019 (3) CPJ 1 (SC);
Consumer Complaint No.886 of 2018 35
ii) V. Kishan Rao v. Nikhil Super Specialty Hospital & Anr. 2010 (2) Apex Court Judgments (SC) 511; and
iii) Consumer Complaint No.23 of 2019 (Harwinder Singh (Dead) through LRs. v. Dr. Prabhjeet Singh & Ors.) decided by this Commission on 17.10.2019;
Written Arguments on behalf of Opposite Parties No.1 to 5
53. The written arguments submitted on behalf of opposite parties No.1 to 5 are on the lines of averments of their replies. The sum and substance of oral and written arguments is that patient was an OPD case and was never admitted with opposite parties No.1 to 5, nor any procedure was performed upon her by them. The complainants are not providing accurate details, as is evident from records of Dr. Mukesh Joshi, who advised for skiagrams of both legs. Dr. Parshant Aggarwal has also recorded oligoarthritis, which means involvement of more than one joint (single joint involvement is called monoarthritis). The case summary issued by DMC & Hospital, Ludhiana also does not match with the details given by the complainants.
54. It has been further contended that proper treatment was given to the patient by opposite party No.1, when she visited on 12.05.2017 and various investigations/tests etc. were advised. She was advised to come for follow up on the next day, along with all the investigations. However, she never came back to opposite party No.1 for follow up. In fact, the patient was suffering from a very rare kind of ailment i.e. Ewing Sarcoma, which had overlapping symptoms with juvenile arthritis. Ewing Sarcoma takes approximately 16-19 weeks, Consumer Complaint No.886 of 2018 36 before it is diagnosed. The complainants have not placed on record the x-ray report dated 12.05.2017 or films/skiagrams. From photocopy of x-ray, nothing comes out and, as such, the opposite parties have sought production of said films by filing M.A. No.2072 of 2020. There is no deficiency in service or medical negligence on the part of opposite party No.1.
55. It has been further contended that the patient came opposite parties No.2 & 3 on 16.05.2017, with initial diagnosis of reactive arthritis (post viral). As per investigations conducted by opposite party No.1 on 12.05.2017, there was vitamin-D deficiency and DSR level was raised. Opposite party No.2 advised various investigations such as ESR, CRP and Skiagram of both lower limbs. The patient, being a volleyball player, was having pain in both knees because of abnormal stress and strain while playing. The medicines were prescribed as per health status of the patient, according to standard medical protocols. With the treatment provided by opposite party No.2 with two follow ups i.e. on 02.06.2017 and 19.06.2017, pain and swelling of the patient had been decreased. However, the patient visited on 08.07.2017 with aggravation of pain and proper investigations were advised and due treatment was given. Thereafter, the patient did not come to opposite parties No.2 & 3 for further treatment. As per medical text book, i.e. "International Edition Campbell's Operative Orthopedics, Volume One, Twelfth Edition, (Page No.918) (Part VIII Tumors) Ewing Sarcoma, (Annexure I) Ex.OP-2/4 (colly.), pain is an almost universal complaint of patients with Ewing sarcoma. Usually, the onset is insidious and the pain may Consumer Complaint No.886 of 2018 37 be of long duration. It may also be mild and intermittent initially and may respond to initial conservative treatment. The average delay from the onset of symptoms of the diagnosis has been reported to 34 weeks. Further, as per medical literature namely "Abeloff's Clinical Oncology, Fourth Edition, (Page No.1984 (Ewing Sarcoma), Ex.OP- 2/5 (colly.), the pain in lower limb is common symptoms, even if appropriate treatment/operation is given/conducted. Rare tumor incidence is 1 in 20 lac children and it is more common in male rather than females. Although the MRI scan has been produced by the complainants, but the skiagrams and x-ray films have not been produced by them. Reliance upon medical literatures "International Edition "Campbell's Operative Orthopedics", Volume One, Twelfth Edition (Page No.918), Ex.OP-2/4; "Abeloff's Clinical Oncology Fourth Edition, Ex.OP-2/5 and "Orthopaedics: Principles and Their applications: Samuel L Turek, Fourth Edition" Ex.OP-2/6 (colly.) has been placed. Opposite parties No.2 & 3 are well qualified and experienced doctors and there is no medical negligence while treating the patient.
56. It has been further contended that opposite party No.4 is also a qualified and experienced doctor and he treated the patient with best of his skill, knowledge and carefully. There is no medical negligence on his part, while treating the patient. It has been further contended that after perusing past medical history of the patient, coupled with medical record of opposite parties No.1 to 3, opposite party No.4 found raised level of ESR and CRP, RA factor negative S- vitamin level low and x-rays normal and hence, the actual disease Consumer Complaint No.886 of 2018 38 could not be detected, due to differential diagnosis like juvenile arthritis and reactive arthritis. The patient visited opposite party No.4 only on two occasions i.e. 10.07.2017 and 26.07.2017 and she was also referred to Rheumatologist/Immunologist, opposite party No.5, for having second opinion. It has been further contended that the complainants have failed to understand that the patient was having joint pain, which was having differential diagnosis and was eventually diagnosed with Ewing Sarcoma, which is a very rare tumor, more common in males. Its incidence being one in more than ten lakh (1:1,00,000) children of age group of 10-15 years, while incidence of juvenile rheumatoid arthritis is (1:1000) and is more common in females. Reference in this regard has been made to aforesaid medical literatures. Opposite party No.4 treated the patient to the best of knowledge and skill, with due care and caution.
57. It has been further contended that the patient came to opposite party No.5 for the first time on 12.08.2017, who diagnosed the ailment as "Steroid dependent inflammatory oligoarthritis along with lower back pain. Definition of Arthritis is as under:
"Arthritis is defined as swelling or effusion or presence of 2 or more of the following signs:
i) Limitation of range of motion,
ii) Tenderness or pain on motions and increased heat in the joint."
It has been further contended that the diagnosis of oligoarthritis was a plausible one. The past history of the patient, regarding treatment and investigations with opposite parties No.1 to 4, was consistent with diagnosis of arthritis, hence treatment for that disease was correctly Consumer Complaint No.886 of 2018 39 given. Opposite party No.5 advised important test i.e. HLAB27, which was not conducted till 17.08.2017, the follow up date. However, the patient visited opposite party No.5 only on 02.09.2017, along with report of said test, which was negative. However, peripheral blood film showed slightly reduced platelets and hb. Anemia was also found in blood cells. Keeping in view the differential diagnoses, opposite party No.5 referred the patient for neurology consultation on account of fresh symptoms of left exophthalmos diplopia i.e. eye bulging and double vision. Bulging of eyes can be on account of various other reasons also. Opposite party No.5 followed the standard medical protocol, as per algorithm for musculoskeletal complaint, as depicted in "Harrisons Principles of Internal Medicine, Section 3 of Disorder of Joints and adjacent tissue Ex.OP-5/3. There is no medical negligence on the part of opposite party No.5, while treating the patient.
58. It has been further contended that there was non- compliance on the part of the complainants to adhere to the advice given by opposite parties No.1 to 5. As per article "Textbook of Pediatric Rheumatology", corticosteroids can be given not only as oral tablets but also as intravenous infusion and local injection in the joint. The steroids were given to the patient at Oncology Institute, DMC & Hospital. The complainants have not led any expert evidence to prove their allegations. In view of the complexity and the rarity of ailment "Ewing Sarcoma", the expert opinion is necessary. Inability to diagnose a rare disease cannot be called medical negligence. Various differential diagnoses including cancer were considered by opposite parties No.1 to 5. The complainants have wilfully misrepresented the Consumer Complaint No.886 of 2018 40 facts. In fact, the complainants (being parents of the patient) were habitual of changing the treating doctors without caring to follow the requisite follow up. The complainants have withheld important and significant documents. The authorities relied upon by the learned counsel for the complainants are not applicable to the facts of this case. Opposite parties No.1 to 5 were always meticulous in clinical evaluation and they followed standard and scientific medical protocol, while treating the patient. The complaint being without any merit is liable to be dismissed. In written rebuttal arguments also, similar contentions have been raised. In support of his contentions, learned counsel for opposite parties No.1 to 5 has relied upon following cases:
i) Vinod Jain v. Santokba Durlabhji Memorial Hospital & Anr.
(2019) 12 Supreme Court Cases 229 (SC);
ii) Achutrao Haribhau Khodwa & Ors. v. State of Maharashtra & Ors. (1996) 2 Supreme Court Cases 634 (SC);
iii) Harinder Kaur & Ors. v. Shergill Multispecialty Hospital & Ors. First Appeal No.297 of 2011, decided on 17.01.2020 (NC);
iv) Shah Hospital & 2 Ors. v. Daljeet Kaur & Anr. R.P. No.1254 of 2013, decided on 31.08.2020 (NC); and
v) Sandeepa Arora & Anr. v. Agarwal Orthopaedic Hospital & Anr. First Appeal No.760 of 2019, decided on 31.08.2020 (NC).
59. Learned counsel for opposite parties No.6 to 10 has argued on the lines of the pleadings made in their respective replies and prayed for dismissal of the complaint.
Consideration of Contentions:
60. We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the parties. Consumer Complaint No.886 of 2018 41 Misc. Application No.2072 of 2020
61. This application has been filed by opposite parties No.1 to 5, seeking permission to produce on record original skiagrams/x-ray films along with reports dated 12.05.2017 and 16.05.2017, complete original IPD record of DMC from 04.09.2017 to 26.09.2017 and original OPD record etc. issued by opposite parties No.1 to 5.
62. This application has been opposed by the complainants, by filing reply thereto.
63. Heard.
64. The case is fixed arguments and this application has been filed only on 15.12.2020, i.e. at the fag end of the case. The documents, sought to be produced, could have been produced at the appropriate stage, but no effort was made by opposite parties No.1 to 5 to produce the same earlier. It also needs to be mentioned that every attempt has been made by opposite parties No.1 to 5 to delay the proceedings on one pretext or the other. Earlier also, Misc. Application No.185 of 2021 was filed by opposite parties No.1 to 5 on 05.02.2021 for recusal from hearing (transfer of the complaint to any of the coordinate Benches). It means minus the President. However, after arguing for some time, they made their joint statement on 11.02.2021 seeking withdrawal of that application. Accordingly, the said application was dismissed as withdrawn, vide order dated 11.02.2021. It appears that the said application was got filed by the learned counsel, directly from opposite parties No.1 to 5 in person. We are of the view that in such circumstances, the counsel cannot be permitted to raise arguments, as the parties intended to argue the case, in Consumer Complaint No.886 of 2018 42 person. In fact, it was an attempt to avoid hearing of the complaint before this Bench. As already discussed above, the present application (M.A. No.2072 of 2020) has been filed at a belated stage on 15.12.2020 i.e. after the expiry of two years from the date of filing of the complaint i.e. 14.11.2018. Hence, the documents mentioned therein cannot be allowed to be produced at the belated stage and the application is dismissed.
Misc. Application No.2073 of 2020:
65. This application has been filed by opposite parties No.1 to 5 with prayer to refer the record of the complaint to the expert Medical Board to give opinion regarding the alleged negligence committed by opposite parties No.1 to 5 or in the alternative permit opposite parties No.1 to 5 to submit the opinion of experts/doctors in the concerned fields i.e. radiologist/orthopedics/pathologist.
66. The aforesaid application has been opposed by the complainants by filing reply thereto.
67. It needs to be mentioned that in case V. Kishan Rao v.
Nikhil Super Speciality Hospital & Another, 2010(2) RCR (Civil)- 929(SC), the Hon'ble Supreme Court held that the expert witness is not required to be examined in all cases of medical negligence. It was observed as follows:-
"13. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the Members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is Consumer Complaint No.886 of 2018 43 taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.
xxxx xxxx xxxxx xxxxx
15. We do not think that in this case, expert evidence was necessary to prove medical negligence.
xxxx xxxxx
37. In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in complicated cases, and where in its discretion, the Consumer Fora feels it is required, the direction in paragraph 106, quoted above in D'souza (supra) for referring all cases of medical negligence to a competent doctor or committee of doctors specialized in the field is contrary to the principles laid down by larger Bench of this Court on this point. In D'souza (supra) the earlier larger Bench decision in Dr. J. J. Merchant (supra) has not been noticed.
38. Apart from being contrary to the aforesaid two judgments by larger Bench, the directions in paragraph 106 in D'souza (supra) is also contrary to the provisions of the said Act and the Rules which is the governing statute.
47. In a case where negligence is evident, the principle of res-ipsa-loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
48. If the general directions in paragraph 106 in D'souza's (supra) are to be followed, then the doctrine of res-ipsa-loquitur which is applied in cases of medical negligence by this Court and also by Courts in England, would be redundant.
49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in D'souza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case.
54. This Court however makes it clear that before the Consumer Fora if any of the parties wants to adduce expert evidence, the Members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the Members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that Consumer Complaint No.886 of 2018 44 each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.
55. For the reasons discussed above, this Court holds that it is not bound by the general direction given in paragraph 106 in D'souza (supra). This Court further holds that in the facts and circumstances of the case expert evidence is not required and District Forum rightly did not ask the appellant to adduce expert evidence. Both State Commission and the National Commission fell into an error by opining to the contrary. This Court is constrained to set aside the orders passed by the State Commission and the National Commission and restores the order passed by the District Forum. The respondent no.1 is directed to pay the appellant the amount granted in his favour by the District Forum within ten weeks from date."
68. While discussing a large number of authorities in V. Kishan Rao's case (supra), the Hon'ble Supreme Court held in Para Nos.47 to 49 that the directions given in Martin F. D'souza's case cannot be treated as a binding precedent. In another case "Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors.", 2009(4) RCR (Criminal)-1(SC), Hon'ble Supreme Court dealt with the criminal negligence and civil negligence, opinion of expert witness. In Para no.48, it was observed as follows:-
"48. In Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Others, 2009(3) RCR (Criminal)-124: 2009(3) RCR (Civil)-174: 2009(3) Consumer Complaint No.886 of 2018 45 RAJ- 634: [2009(7) SCALE-407], this Court held as under:-
"32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.
69. In view of the settled proposition of law laid down in above noted cases, it is not necessary to examine medical expert in each and every case of medical negligence. After complainants' discharge of initial onus of alleging medical negligence on the part of the opposite parties No.1 to 5, the onus automatically shifted upon them to prove that they were not medically negligent while treating the patient. So, we do not think that in this case, expert evidence is necessary to prove alleged medical negligence on the part of opposite parties No.1 to 5. There is sufficient material/evidence available on record to decide the present complaint. It also needs to be mentioned that every attempt has been made by opposite parties No.1 to 5 to delay the proceedings on one pretext or the other. Earlier also, Misc. Application No.185 of 2021 was filed by opposite parties No.1 to 5 on 05.02.2021 for recusal from hearing (transfer of the complaint to any of the coordinate Benches). It means minus the President. However, after arguing for some time, they made their joint statement on 11.02.2021 seeking withdrawal of that application. Accordingly, the said application was dismissed as withdrawn, vide order dated 11.02.2021. It appears that the said application was got filed by the learned counsel, directly from opposite parties No.1 to 5 in person. We are of the view that in such Consumer Complaint No.886 of 2018 46 circumstances, the counsel cannot be permitted to raise arguments, as the parties intended to argue the case, in person. In fact, it was an attempt to avoid hearing of the complaint before this Bench. Moreover, the present application (M.A. No.2073 of 2020) has been filed at a belated stage on 15.12.2020 i.e. after the expiry of two years from the date of filing of the complaint i.e. 14.11.2018. In view of this, this application filed by opposite parties No.1 to 5 is dismissed. Main Case:
70. In view of the oral and written arguments submitted by the learned counsel for the parties, we deem it appropriate to deal with the contentions and issue of medical negligence, opposite parties-wise. The following question arises for determination for disposal of the present complaint:
(I) Whether there is any deficiency in service and medical negligence on the part of opposite party No.1-Dr. Kulwant Singh?
(II) Whether there is any deficiency in service and medical negligence on the part of opposite parties No.2 & 3?
(III) Whether there is any deficiency in service and medical negligence on the part of opposite party No.4-Dr. Rajesh Saggar?
(IV) Whether there is any deficiency in service and medical negligence on the part of opposite party No.5-Dr. Parshant Aggarwal?
(V) Relief.Consumer Complaint No.886 of 2018 47
In Re: Question No.(I): Opposite Party No.1-Dr. Kulwant Singh:
Whether there is any deficiency in service and medical negligence on the part of opposite party No.1-Dr. Kulwant Singh?
71. It is an admitted fact that patient, Jiya Sharma, was presented before opposite party No.1-Dr. Kulwant Singh on 12.05.2017, with pain in both knees. So is recorded in prescription slip, Ex.C-2, issued by opposite party No.1. After examination, opposite party No.1 advised x-ray of both knees, complete CBC, ESR, Vitamin D-3, RA Factor, ASOT, SGOT etc. and had prescribed mild pain killers i.e. Tab. Sigil SP and Tab. EMP4 as well as calcium tab. Nojesia AC & Cap, Calcilong Plus. Opposite party No.1 further advised patient to come on the next day, along with all investigations. Though, the investigations suggested by opposite party No.1 have been placed on record as Ex.C-2/A to Ex.C-2/D. Thereafter, the patient never visited opposite party No.1 for treatment/follow up. Hence, there was no occasion for opposite party No.1 to make any further diagnosis based on the investigations, nor opposite party No.1 referred the patient to opposite parties No.2 & 3 at Joshi Hospital. The complainants/patient never showed x-ray reports of both knees and other lab. reports, as suggested by opposite party No.1. No such document is on record.
72. In view of this, we do not find that there was any deficiency in service or medical negligence on the part of opposite party No.1, while treating the patient. In our view, opposite party No.1 had performed reasonable duty of care, as per standard medical protocol and practice in the instant case.
Consumer Complaint No.886 of 2018 48In Re: Question No.(II): Opposite Parties No.2 & 3 Whether there is any deficiency in service and medical negligence on the part of opposite parties No.2 & 3?
73. It is an admitted fact that the patient came to opposite party No.2-Dr. Mukesh Joshi in Joshi Superspecialty & Multispecialty Hospital on 16.05.2017. The patient gave history that she was a sports girl (volleyball player). She complained of pain in knees. So is stated in the reply filed by opposite party No.2, but no history is recorded in prescription slip dated 16.05.2017, Ex.C-3, of first date. Rather, in the column "Chief Complaints", lower side of vitamin-D is mentioned as follows:
"Vitamin D ⬇"
In the column of "Diagnosis" of this prescription slip, it is mentioned as under:
"Reactive Arthritis Post Viral ??"
In the column of "Local/Systemic Examination", it has been mentioned as under:
"ESR =34 CRP=+16 CBC etc."
In the column of "Investigations", it is mentioned as follows:
"Skiagram Lower Limbs"
Thereafter, opposite party No.2 prescribed various medicines, such as "T. NAPROSYN, T. CARRISOMA; T. IMPRED; T. OSTIUM K2; OSTEON D3; Rheu oil/massage". Opposite party No.2 further prescribed the same investigations; though the same had already been advised by opposite party No.1, the reports of which were Consumer Complaint No.886 of 2018 49 brought to opposite parties No.2 & 3. The investigations were got done from Super Scanning & Diagnostic (P) Ltd., which is stated to be a reputed Diagnostic Centre. The reports regarding other investigations, Ex.C-3/A to Ex.C-3/E, were got done from Alfa Clinical Lab. & Diagnostic Centre and Sardana Lab. However, the skiagrams have never been placed before this Commission, as the same were stated to be normal. Without looking at the x-rays and skiagrams, it was difficult to determine, whether the patient was having Ewing Sarcoma. It is an admitted fact that on the first visit of the patient on 16.05.2017, the doctor put "??" in the column of Diagnosis in prescription slip, Ex.C-3. Two issues arise; (i) Was it a diagnosis of elimination without any protocol? (ii) Was it a perverse diagnosis, as it is more common in adults, who are more prone to sexually transmitted diseases? Medical literatures at Page-280, Ex.OP-2/4, and Page-437, Ex.OP-5/3, suggest the same. The medical literature is very relevant. In the rebuttal to opposite party No.1's arguments, the complainants have tabulated the difference between the diseases of Ewing Sarcoma and Reactive Arthritis; which reads as under:
Basis Ewing's Sarcoma Reactive Arthritis
Age/gender 5-25 years; male 18-40 years; male
Cause Genetic {e.g reciprocal Association with genital
translocation t(11;22) and enteric infections e.g.
(q24;q12)} Chlamydia,
Campylobacter, etc.
Most common bone coupled with HLA B27
sarcomas; third most association. Association common non with HIV\AIDS. No hematological primary validated diagnostic bone malignancy. criteria makes data collection difficult.
Site involved Most commonly Asymmetric and additive
metaphyses of long arthritis with involvement
bones of multiple joints e.g.
Consumer Complaint No.886 of 2018 50
knee, ankle, subtalar, etc.
Symptoms Pain along with fever, Constitutional symptoms,
swelling, erythema, etc. multiple joint pains and arthritic changes spanning 3-5 months;
Association with ocular
and mucocutaneous
symptoms like
keratoderma
hemorrhagica, circinate
balanitis, etc.
Diagnosis CRP, ESR No definitive criteria;
entertained in patients
MRI of the entire bone with acute inflammatory,
involved, CT chest to look asymmetric, additive
for metastasis; arthritis or tendinitis; past
history of diarrhea,
Biopsy
physical examination of
joints involved and extra
articular sites is
imperative. HLA B27 is
not of diagnostic but
prognostic value.
Can be confused with Osteomyelitis Psoriatic arthropathy,
gout, sarcoidosis
Treatment Surgical resection and High dose NSAIDS,
chemotherapy appropriate antibiotics,
etc.
74. From above facts, it can be inferred that opposite parties No.2 & 3 had applied the system of perverse diagnosis. Apart from the perverse diagnosis, the treatment was not monitored carefully, since baseline test was not prescribed before instituting medicine "Tab. METHOTREXATE", as mentioned in prescription slip, Ex.C-3/F. In the facts and circumstances of the present case and the medical record placed on record in this case, though missed diagnosis does not amount to medical negligence, but perverse diagnosis is considered as medical negligence. The doctors, i.e. opposite parties No.2 & 3, who are specialized in orthopedics, tried to equate the reactive arthritis and juvenile arthritis, despite the fact and common knowledge that Consumer Complaint No.886 of 2018 51 they are different entities. Opposite parties No.2 & 3, specifically opposite party No.2, diagnosed the patient with reactive arthritis, but the entire medical record and literature brought on record is with regard to juvenile arthritis. The age of the patient was only 12 years. Hence, the question of reactive arthritis is beyond imagination. It is the case of opposite parties No.2 & 3 that the patient did not inform about the fever, but the prescription slip, Ex.C-3, does not ask any questions about the past history of the patient. There is no questioning regarding the same. Straightway coming to vitamin-D deficiency, without any other questions and making note of it on the prescription slip itself amounts to deficiency in service on the part of opposite parties No.2 &
3. It is admitted by opposite parties No.2 & 3 that they had seen the reports, which were got done by the patient at the instance of opposite party No.1 and ESR and CRP of the patient were raised. However, opposite parties No.2 & 3 never recorded the temperature and body weight of the patient. Reference in this regard can be made to Pages- 71, 79, 80 and 81. At page-71, Ex.C-3, Joshi Hospital prescribed skiagrams of lower limbs, but copy of register Ex.OP-2/3 (colly.) suggests that x-ay of full leg and full spine was done and report was with opposite parties No.2 & 3. On the said document, no date is put. However, the Radiologist of Super Scan Centre has attested that it was done on 16.05.2017 and the said report is at Page-278 on the file. However, in the report, it is mentioned 'for both lower limbs'. Such a discrepancy cannot be overlooked. It can be interpreted that opposite parties No.2 & 3 concealed their deficiency in service and they are taking contradictory stands. The blood test reports indicate that ESR Consumer Complaint No.886 of 2018 52 and CRP were fluctuating and were on higher side. However, the blood tests reports are not properly noted on any of the prescription slips, nor opposite parties No.2 & 3 advised for radiological investigations. On 02.06.2017, Page-79, Tab. METHOTREXATE was started. No care was shown while prescribing this drug to an adolescent girl. No radiological investigation was ordered. Page-80, which is prescription slip dated 19.06.2017, Ex.C-3/F, is another proof of poor OPD recordkeeping. In ambiguous language, the doctors noted in "Chief Complaints" as under:
"(b) 40% F/U C/o →"
Such a poor record keeping in an out-patient scenario is equally perilous, if not more as in the present patient scenario. On Page-81, which is prescription slip dated 08.07.2017, Ex.C-3/F (colly.), the patient is stated to have complained of aggravated pain in left knee. There is no reference to the pain in right knee. Rather, the categorical case of the complainants is that from the very beginning, the pain was in left leg/knee of the patient. The CRP and ESR were raised, but the same medication, more or less, was continued, in-spite of complaint of aggravated pain. No radiological investigation, other than the x-ray, was noted. It is an admitted case that the patient remained under treatment of opposite parties No.2 & 3 from 16.05.2017 to 08.07.2017, i.e. for almost two months. In view of the raised CRP and ESR and the continuous pain, further investigations should have been suggested. ESR elevation is significant and best to correlate with the disease. Even the ESR can be found elevated in cases of infection, malignancy and autoimmune diseases. Any doctor, who sees a patient with Consumer Complaint No.886 of 2018 53 persistently deteriorating symptoms, will order/advise further radiological investigations, such as MRI etc., other than simple x-ray reports. The inference can be drawn that the condition of the patient was deteriorating and this condition led the patient and her parents to shift to the other new doctor. Thereafter, the patient was taken to opposite party No.4-Dr.Rajesh Saggar. In the present case, there is development in the field of radio-diagnosis. Options, like CT Scan and MRI, are available with the physicians. However, opposite parties No.2 & 3 never advised the patient's advance radio-diagnosis, though the patient, who was coming walking, during the course of treatment with opposite parties No.2 & 3, started coming on wheelchair. Non- exploring of other advance diagnosis also certainly amounts to deficiency in service in providing the treatment and taking appropriate care of the patient etc. Thus, we are of the view that opposite parties No.2 & 3 did not perform the duty of care, as per standard medical protocols, which an ordinary doctor would have performed. Hence, it is held that opposite parties No.2 & 3 were lacking in giving appropriate medical treatment and taking care and caution, while treating the patient.
In Re: Question No.(III): Opposite Party No.4 Whether there is any deficiency in service and medical negligence on the part of opposite party No.4-Dr. Rajesh Saggar?
75. On 10.07.2017, the patient was taken to opposite party No.4-Dr. Rajesh Saggar, who is working in Vedanta Multispecialty Hospital. He issued prescription slip dated 10.07.2017, Ex.C-4. However, this prescription slip does not mention the past history of the Consumer Complaint No.886 of 2018 54 patient, which is the minimum requirement for diagnosis and treatment. Though, reference to vitamin-D, ESR and CRP is made, which were raised. Even the vitals of the patient were not noted in the same. The case of the opposite party No.4 is that osteomylitis was ruled out, due to no redness, no fever. However, from the very beginning, the patient was complaining of pain and swelling and was on DMARDS (METHOTREXATE) and Glucocorticoids drugs. Due to these medicines, redness, swelling and fever may subside temporarily. Even the juvenile arthritis has not been recorded as diagnosis anywhere in the prescription slip. Though, the tests, like Anti-CCP, CRP, ESR were advised, but repeat radiograph or CT scan was not recommended and the patient was referred to Dr. Parshant Aggarwal, opposite party No.5. The perusal of record reveals that the patient visited opposite party No.4 only on two occasions i.e. 10.07.2017 and 26.07.2017. The Anti CCP test was done to find out the diagnosis of juvenile rheumatoid arthritis. Since the report was negative and the ailment was not noted as juvenile arthritis, so in those circumstances, opposite party No.4 referred the patient to Dr. Parshant Aggarwal. Hence, there is no major role or deficiency in service on the part of opposite party No.4. However, it is true that he also did not advise CT Scan and MRI etc. He should have done so, but the period was too short to determine all these things and the investigations to go towards that side, as the patient visited him only twice. Possibility of the patient being examined elsewhere is also not ruled out, because in some of the medical reports, reference is made by some other doctor i.e. Dr. Kiran. However, no previous clinical history of the patient was Consumer Complaint No.886 of 2018 55 recorded by opposite party No.4, which is the minimum requirement as per the standard medical protocol. To that extent, opposite party No.4 is deficient in rendering services to the patient. In Re: Question No.(IV): Opposite Party No.5 Whether there is any deficiency in service and medical negligence on the part of opposite party No.5-Dr. Parshant Aggarwal?
76. On reference from opposite party No.4, the patient visited opposite party No.5-Dr. Parshant Aggarwal for the first time on 12.08.2017. The patient was diagnosed with a different disease, vide prescription slip Ex.C-5 at page-90. Even no previous history of the patient, including previous treatment taken by her from various doctors, was recorded in the prescription slip, which was required to be done. Opposite party No.5 diagnosed the ailment as "steroid dependent inflammatory oligoarthritis' LBP u/e ?spa". However, the basis of this diagnosis is not clear, though the patient had been distinctly complaining of pain in one knee. Opposite party No.5 has argued on the basis of medical literature that the symptoms of Ewing Sarcoma are confused with osteomyelitis. However, in this case, opposite party No.5 has made a new and novel diagnosis, without any justification. He argued that TLC was not raised. In fact, the tests report at page-91, Ex.C-5/A, clearly indicates that TLC was raised. It was 17.09 x 10^3/uL against the normal value (4.00-12.00). The rise in TLC was despite the prolong intake of immunomodulator drugs, like Methotrexate. Still no further investigation, to know as to why the TLC was raised, was suggested. This type of poor differential diagnosis from a super specialist does not stem from lack of skill or knowledge, Consumer Complaint No.886 of 2018 56 but is gross lack of care. All the x-ray examination reports specifically mention that the report must be correlated clinically, but no such attempt has been made in the present case. The plea of the doctor that the parents of the patient got the investigation done but did not show the same to the doctor, is beyond imagination. So has not been recorded in the OPD slips. It could have been put on record that 'report not shown or received'. Such allegations further deepen the gulf between the patients and the doctors. At page 102, Ex.C-5/L, the doctor noted shocking findings as under:
"left exophthalmos diplopia-Neurology consult, torticollis? postural to observe."
Opposite party No.5 advised neurology consultation, but recommended follow up after two weeks. Despite these serious findings, the follow up being ordered after two weeks further shows the lapse on the part of the doctor to care. The weight of the child was not noted. Vital parameters were also not noted. Even opposite party No.5 failed to tie together the symptoms of pain in the knee with exophthalmos and ordered only "MRI orbit screening cervical spine". This too is alleged to be at the instance of the parents of the patient, specifically mother, but no MRI of left knee was advised. Having consulted for such a long period from this specialist doctor, opposite party No.5, there appears to be deficiency in service on the part of opposite party No.5, specifically by not recording the history and taking the case to another angle, in-spite of categorical complaint of pain in left knee. Therefore, opposite party No.5 is lacking in the duty of care and there is deficiency in service on his part.
Consumer Complaint No.886 of 2018 57
77. Thereafter, the patents took the child to Goel Hospital, where Dr. Sandeep Goel ordered MRI of head, neck and left knee for the first time, vide Prescription Slip Ex.C-6. The report of MRI (Brain/Head) dated 03.09.2017, Ex.C-6/A, notes "metastatic/malignant mass in the head (Page 105 Ex.C-6/A). This diagnosis was also from Super Scan Diagnostic Centre Pvt. Ltd. The report reads as under:
"Study reveals focal soft tissue lesson within the subcutaneous soft tissue of scalp in left frontal and bilateral parietal region. These are intermediate signal on T1 and T2W1. Underlying calvaria also shows subtle heterogenic of marrow signal in the involved regions. Intra-cranial epidural soft tissue component is also noted in left parietal region measuring upto 13*10 mm. Cerebral parenchyma shows subtle gliotic focal in left peri- atrium. No other intra-axial focal lesion seen. Brainstem, cerebellum, basal ganglia, thalami & corpus callosum are normal.
Sella-parasellar region is unremarkable. No mass effect, midline shift or hydrocephalus seen. Major arterial and venous flow voids are patent. Mastoid and PNS are normal.
RADIOLOCAL OPINION:
- Focal soft tissue lesions in intracranial extra-dural and subcutaneous soft tissue of scalp with involvement of calvaria as described. These raise suspicion of possible malignant etiology like lymphoma/leukemia infiltrates, metastases etc. and Needs histopathological confirmation. To correlate clinically."
78. The report of MRI (Neck), Ex.C-6/C, notes infiltrations around C3-4-5 levels extending into neural foramen with altered signal intensity involving the left posterior paraspinal, muscles. Report of MRI (Left Knee/Thigh), Ex.C-6/B notes "large soft tissue mass at anterior compartment of thigh infiltrating soft tissue involving femur, tibia and fibula suggesting a diffusely infiltrating malignant process, like leukemia/lymphoma and needs histopathological/bone marrow aspirate. Differential would include sarcoma."
Consumer Complaint No.886 of 2018 58
79. It would be appropriate to note that for medical professionals, proper documentation of medical record is very vital for defending the complaints of clinical negligence and consequent misdiagnosis/wrong diagnosis. It is essential for continuity of care of the patient. Documentation of clinical history of the patient arrived to a doctor/surgeon is very important. It is of immense help in reviewing the patient's management and treatment issues. It helps in analyzing the treatment results of previous treatment taken, if any. The Courts mainly rely upon the documentary evidence in medical negligence cases. It is always wise to remember that poor records mean poor defence.
80. In the present case, opposite parties No.2 to 5 failed to record patient's history, clinical findings, diagnosis, test results and proper notes of patient's diagnosis and medications. The treating doctor is the prime person in giving treatment and primarily responsible for the history, physical examination, treatment plan and ultimate referral papers, if required.
81. Thus, keeping in view the above discussion and the evidence on record, preponderance of probability and inferences, we hold that the complainants have been able to prove their case of deficiency in service and medical negligence only against opposite parties No.2 to 5. It is true that medical negligence cases do sometimes involve questions of factual complexity and difficulty and may require the evaluation of technical and conflicting evidence. However, in the present case, the complainants have been able to discharge the onus of proving on a balance of probabilities, the Consumer Complaint No.886 of 2018 59 medical negligence and deficiency in service averred against opposite parties No.2 to 5. The negligence on the part of opposite parties No.2 & 3 as well as opposite parties No.4 & 5 is significant and specifically no proper record was maintained by opposite parties No.4 & 5. Complete medical history of the patient was not noted, her vitals and physical examination were also not noted/done, nor any counselling was provided to the patient/patents. Even no Informed Consent of the patient was taken before undertaking treatment of the patient, as per Regulation 7.16 of Indian Medical Council (Professional, Conduct, Etiquette and Ethics) Regulations, 2002. The categorical findings are that the parents went from one doctor to another after taking treatment, but there was no improvement and proper diagnosis. The condition of the child was persistently deteriorating, but none of the doctors advised radiological investigations at least; specifically of the left knee i.e. left lower limb. No doctor has noted findings of physical examination of joints, which is a regular practice in such circumstances. Lack of care in OPD sittings and lack of thoughts in diagnosis is apparent in this case. The stand of the doctors that the diagnosis of the patient was difficult does not free the doctors from duty of care. All probabilities are required to be explained, specifically when the age of the patient was just 12 years and possibility of Ewing Sarcoma also cannot be ignored. Due to sheer negligence and deficiency in service on the part of opposite parties No.2 to 5, proper diagnosis could not be made at the appropriate stage and adequate and suitable treatment could not be given to the child, as a result of which complications worsened and she died at a tender age of 12 Consumer Complaint No.886 of 2018 60 years. The authorities relied upon by the learned counsel for opposite parties No.1 to 5 are distinguishable and are not applicable to the facts and circumstances of the present case.
Quantum of Compensation
82. Now, coming to the quantum of compensation to be awarded in favour of the complainants, on account of deficiency in service and medical negligence on the part of opposite parties No.2 to
5.
83. Human life is most precious. It is extremely difficult to decide on the quantum of compensation in the medical negligence cases, as the quantum is highly subjective in nature. Different methods are applied to determine compensation.
84. Hon'ble National Commission in Dr. (Mrs.) Indu Sharma (supra), observed in Paras No.53, 59 & 60 as follows:
"53. A decision in the case of Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr reported in (1998) 4 SCC 39. Their Lordships observed as follows:
" Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."
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59. Nizam Institute Case- 2009 Indlaw SC 1047:
In the Nizam Institute case 13, the Supreme Court did not apply the multiplier method. In 1990, twenty-year old Prasant S. Dhananka, a student of engineering, was operated upon at the Nizam Institute of Medical Sciences, Hyderabad. Due to medical negligence of the hospital, Prasant was completely paralysed. Compensation was claimed, and the matter finally Consumer Complaint No.886 of 2018 61 reached the Supreme Court. The court did not apply the multiplier method and awarded a compensation of Rs. 1 crore plus interest. The court observed:
"Mr. Tandale, the learned counsel for the respondent has, further, submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method.
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60. Kunal Saha's Case (2014) 1 SCC 384 :
The Supreme Court rejected the multiplier method in this case and provided an illustration to show how useless the method can be for medical negligence cases. Hon'ble Justice Mr. V. Gopala Gowda opined that;
"The multiplier method was provided for convenience and speedy disposal of no fault motor accident cases. Therefore, obviously, a "no fault" motor vehicle accident should not be compared with the case of death from medical negligence under any condition. The aforesaid approach in adopting the multiplier method to determine the just compensation would be damaging for society for the reason that the rules for using the multiplier method to the notional income of only Rs.15,000/- per year would be taken as a multiplicand. In case, the victim has no income then a multiplier of 18 is the highest multiplier used under the provision of Ss. 163 A of the Motor Vehicles Act read with the Second Schedule.... Therefore, if a child, housewife or other non- working person fall victim to reckless medical treatment by wayward doctors, the maximum pecuniary damages that the unfortunate victim may collect would be only Rs.1.8 lakh. It is stated in view of the aforesaid reasons that in today's India, Hospitals, Nursing Homes and doctors make lakhs and crores of rupees on a regular basis. Under such scenario, allowing the multiplier method to be used to determine compensation in medical negligence cases would not have any deterrent effect on them for their medical negligence but in contrast, this would encourage more incidents of medical negligence in India bringing even greater danger for the society at large."
85. Further, on the question of determination for the loss or injury suffered by a consumer on account of deficiency in service, the following observations by a three Judge Bench of the Hon'ble Consumer Complaint No.886 of 2018 62 Supreme Court in Charan Singh v. Healing Touch Hospital & Ors. (2000) 7 SCC 668 are also apposite:
"While quantifying damages, Consumer Forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While warding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge."
86. Furthermore, Hon'ble Supreme Court in case R.D. Hattangadi v. Pest Control (India) (P) Ltd. (1995) 1 SCC 551 held in Para No.9 as under:
"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profits up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit;
(iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened;
(iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."Consumer Complaint No.886 of 2018 63
87. The complainants have claimed refund of medical expenses of ₹8,06,300/-, along with interest at the rate of 12% per annum, besides compensation of ₹25,00,000/- and litigation expenses of ₹2,00,000/-. They have also produced the bills Ex.C-7/A to Ex.C- 7/F, Ex.C-7/J, Ex.C-7/L to Ex.C-7/Z, Ex.C-7/AA to Ex.C-7/AZ, Ex.C- 7/BA to Ex.C-7/BZ, Ex.C-7/CA to Ex.C-7/CZ, Ex.C-7/DA to Ex.C-7/DZ, Ex.C-7/EA to Ex.C-7/EZ, Ex.C-7/FA to Ex.C-7/FI etc. to prove that substantial amount was spent by them on their daughter's treatment/medicines etc.
88. The age of the complainant was about 12 years at time of surgeries in DMC Hospital. The Hon'ble Supreme Court of India in "V. Krishnakumar Vs. State of Tamil Nadu & others" Civil Appeal No.8065 of 2009, decided on 01.07.2015 has taken the expectancy of human life to be of 70 years and further held in para No.23 as under:-
"23. Inflation over time certainly erodes the value of money. The rate of inflation (Wholesale Price Index-Annual Variation) in India presently is 2 percent as per the Reserve Bank of India. The average inflationary rate between 1990-91 and 2014-15 is 6.76 percent as per data from the RBI. In the present case we are of the view that this inflationary principle must be adopted at a conservative rate of 1 percent per annum to keep in mind fluctuations over the next 51 years.
The formula to compute the required future amount is calculated using the standard future value formula:-
FV = PV x (1+r)n PV = Present Value r = rate of return n = time period Accordingly, the amount arrived at with an annual inflation rate of 1 percent over 51 years is Rs.1,37,78,722.90 rounded to Rs.1,38,00,000/-."
89. Although, the loss suffered by the complainants due to deficiency in service and medical negligence of opposite parties No.2 Consumer Complaint No.886 of 2018 64 to 5 cannot be compensated in terms of money, yet in view of law laid down by the Hon'ble Supreme Court in above referred authority, age of the patient, and the totality of facts and circumstances of the case, we award lump sum compensation of ₹33,00,000/- (Rupees Thirty Three Lac only) to the complainants, along with interest at the rate of 7% per annum from the date of filing of the complaint till realization, due to deficiency in service and medical negligence and deficiency in service on the part of opposite parties No.2 to 5 and resultant mental agony, harassment, avoidable pain, sufferings caused to the complainants and her family members, including medical expenses and loss of their beloved child. However, the apportionment of the compensation/liabilities of opposite parties No.2 to 5, as per the extent of their deficiency in service and medical negligence, will be detailed in the conclusion and relief part of this judgment.
90. Opposite party No.2-Dr. Mukesh Joshi was insured with opposite party No.7-Insurance Company, vide "Professional Indemnity Doctors Policy" bearing No.272200/48/2017/15793, Ex.R-7/1, which was valid from 02.11.2016 to 01.11.2017. Sum insured thereunder for Any One Accident (AOA) was ₹10,00,000/-. The treatment of the patient was undertaken by opposite party No.2 during that period. Therefore, opposite party No.7-Insurance Company is liable to indemnify him, subject to terms and conditions of the said Insurance Policy.
91. M/s Joshi Hospital Multi Superspecialty Hospital was insured with opposite party No.8-Insurance Company, vide "Error and Omission-Medical Establishment" bearing No.272200/48/2017/18191; Consumer Complaint No.886 of 2018 65 which was valid for the period 07.12.2016 to 06.12.2017. Sum insured thereunder for Any One Accident (AOA) was ₹10,00,000/-. Since M/s Joshi Hospital Multi Superspecialty Hospital has not been made party to the complaint, so opposite party No.8-Insurance Company cannot be made liable in any manner.
92. Opposite party No.4-Dr. Rajesh Saggar was also insured with opposite party No.9-Insurance Company, vide "Professional Indemnity Doctors Policy Schedule" bearing No.272200/48/2018/6715, Ex.R-9/1; which was valid from 25.06.2017 to 24.06.2018. Sum insured thereunder for Any One Accident (AOA) was ₹15,00,000/-. The treatment of the patient was undertaken by opposite party No.4 during that period. Therefore, opposite party No.9-Insurance Company is also liable to indemnify him, subject to terms and conditions of the said Insurance Policy.
93. Opposite party No.5-Dr. Parshant Aggarwal was also insured with opposite party No.10-Insurance Company, vide "Professional Indemnity Doctors Policy Schedule" bearing No.272200/48/2018/1830; which was valid from 25.04.2017 to 24.04.2018. Sum insured thereunder for Any One Accident (AOA) was ₹10,00,000/-. The treatment of the patient was undertaken by opposite party No.5 during that period. Therefore, opposite party No.9- Insurance Company is also liable to indemnify him, subject to terms and conditions of the said Insurance Policy.
Conclusion and Relief:
94. In view of our above discussion, the complaint is partly allowed against opposite parties No.2 to 5 and opposite parties No.7, 9 Consumer Complaint No.886 of 2018 66 & 10 and the same is dismissed against opposite parties No.1, 6 & 8.
Total compensation of ₹33,00,000/- awarded is apportioned proportionately and following directions are issued to opposite parties No.2 to 5 and opposite parties No.7, 9 & 10:
i) Opposite parties No.2 & 3 are directed to pay lump sum of ₹20,00,000/- (Rupees Twenty Lac only), jointly and severally, to the complainants, as compensation, along with interest at the rate of 7% per annum from the date of filing of the complaint till realization, on account of deficiency in service and medical negligence on their part and for the resultant loss, mental agony, harassment, unavoidable pain, sufferings caused to patients and complainants, including medical expenses. Opposite parties No.2 & 3 are also directed to pay ₹20,000/- (Rupees Twenty Thousand only) each as litigation costs.
ii) Opposite party No.4 is directed to pay lump sum of ₹5,00,000/-
(Rupees Five Lac only), to the complainants, as compensation, along with interest at the rate of 7% per annum from the date of filing of the complaint till realization, on account of deficiency in service and medical negligence on his part and for the resultant loss, mental agony, harassment, unavoidable pain, sufferings caused to patients and complainants, including medical expenses. Opposite party No.4 is also directed to pay ₹5,000/- (Rupees Five Thousand only) as litigation costs.
iii) Opposite party No.5 is directed to pay lump sum of ₹8,00,000/-
(Rupees Eight Lac only), to the complainants, as compensation, along with interest at the rate of 7% per annum from the date of Consumer Complaint No.886 of 2018 67 filing of the complaint till realization, on account of deficiency in service and medical negligence on his part and for the resultant loss, mental agony, harassment, unavoidable pain, sufferings caused to patients and complainants, including medical expenses. Opposite party No.5 is also directed to pay ₹5,000/- (Rupees Five Thousand only) as litigation costs.
95. It is made clear that liability of opposite parties opposite parties No.7, 9 & 10-Insurance Company will be only to the extent of the sum insured under the above mentioned insurance policies; which have been issued by them in favour of opposite parties No.2, 4 & 5.
96. The compliance of this order shall be made by opposite parties No.2 to 5 and opposite parties No.7, 9 & 10 within a period of 30 days of the receipt of certified copy of the order.
97. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases and pandemic of COVID-19.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (MRS. KIRAN SIBAL) MEMBER April 16, 2021.
(Gurmeet S)