State Consumer Disputes Redressal Commission
Sukhwinder Singh Mattu vs Sukhminder Kaur on 12 December, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1324 of 2012
Date of institution: 5.10.2012
Date of Decision:12.10.2015
1. The Senior Medical Officer, Civil Hospital, Guruharsahai, District
Ferozepur.
2. The Director, Punjab State Health System Corporation, Punjab,
Phase VI, SAS Nagar (Mohali)
Appellants/OPs
Versus
1. Sukhminder Kaur wife of Ajaib Singh, resident of Village Mare Kalan,
Tehsil Jalalabad, District Fazilka.
Respondent No.1/Complainant
2. Dr. Sukhwinder Singh Mattu, the then Medical Officer, Civil Hospital,
Guruharsahai.
Respondent No.2/OP No.1
First Appeal against the order dated 23.7.2012
passed by the District Consumer Disputes
Redressal Forum, Ferozepur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
First Appeal No. 1324 of 2012 2
For the appellant : Sh. Manjit Singh, Advocate
For respondent No.1 : None.
For respondent No.2 : Sh. Mukesh Goyal, Advocate
2nd Appeal
First Appeal No. 1339 of 2012
Date of institution: 10.10.2012
Dr. Sukhwinder Singh Mattu, Earlier Medical Officer, Civil Hospital,
Guruharsahai, Tehsil Guruharsahai, District Ferozepur, Punjab (Presently
posted at Rajindra Medical College, Patiala for persuing his M.D.).
Appellant/OP No.1
Versus
1. Sukhminder Kaur wife of Ajaib Singh, resident of Village Marhe
Kalan, Tehsil Jalalabad, District Fazilka, Punjab.
Respondent No.1/Complainant
2. The Senior Medical Officer, Civil Hospital, Guruharsahai, District
Ferozepur.
3. The Director, Punjab State Health System Corporation, Punjab,
Phase VI, SAS Nagar (Mohali)
Respondent Nos.2&3/OP Nos.2&3
First Appeal against the order dated 23.7.2012
passed by the District Consumer Disputes
Redressal Forum, Ferozepur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
First Appeal No. 1324 of 2012 3
Present:-
For the appellant : Sh.Mukesh Goyal, Advocate
For respondent No.1 : None.
For respondent No.2 : Sh. Manjit Singh, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of both the above mentioned two appeals are arising out of the impugned order dated 23.7.2012 passed in Consumer Complaint No. 168 dated 22.3.2012 by the District Consumer Disputes Redressal Forum, Ferozepur(in short the "District Forum") vide which the complaint filed by the complainant was allowed and OPs were jointly and severally directed to pay Rs. 4,00,000/- as compensation and Rs. 3,000/- as litigation expenses. They were further directed to pay this amount within a period of 30 days, failing which the OPs shall be liable to pay interest on the amount of Rs. 4 lacs from the date of order till realization.
2. A consumer complaint was filed by the complainant that on 17.3.2010, the husband and son of the complainant were attacked by Lal Singh and others and had received serious injuries and were admitted in Civil Hospital, Guruharsahai on 17.3.2010 at 9.15 a.m.. Op No. 1 was a Medical Officer on duty, who examined her son and husband and issued Medico Legal Report after charging Rs. 50/- as examination fee. Therefore, he is a consumer of the Ops. Husband of the complainant, namely, Ajaib Singh received the head injury as per Medico Legal Report No. MLR/SSM/12/10/GHS dated 17.3.2010. Op No. 1 was duty bound to thoroughly treat and diagnose the husband of the complainant but he was discharged by Op No. 1 on 21.3.2010 First Appeal No. 1324 of 2012 4 after receiving Rs. 150/- vide receipt No. 211529/2116 without thoroughly examining the condition of the Head injury. On the same day at night, the condition of the husband of the complainant was deteriorated and was taken to Amar Hospital, Ferozepur and then to Civil Hospital, Ferozepur where Doctors gave him the treatment but he could not recover from the head injury. He needed the continuous medical treatment whereas he was discharged by Op No. 1 and ultimately, husband of the complainant died on 22.3.2010 at 2.40 a.m.. After receiving the Histo-pathological report, the Doctors of the hospital declared the cause of death due to anti-mortem injury to the vital organ i.e. brain, which was sufficient cause in the ordinary course of life. In case the continuous treatment has been given, the husband of the complainant might have been saved. It is a case of medical negligence and deficiency in services. Hence, the complaint with a direction to the Ops to pay a sum of Rs. 8 lacs as compensation, Rs. 60,000/- spent on the last rites and Rs. 11,000/- as litigation expenses.
3. The complaint was contested by the Ops, who filed their written reply taking preliminary objections that the complaint was false, frivolous and vexatious to the knowledge of the complainant; the complaint was not maintainable; the complainant was guilty of concealment of material facts as she had not disclosed the facts that injury of deceased Ajaib Singh were kept under observation and were subject to Radiological examination and Radiologist did not find any bony injury, therefore, the cause of death cannot be this injury; complicated questions of facts were involved, which requires First Appeal No. 1324 of 2012 5 voluminous evidence, therefore, the matter should be referred to the Civil Court. On merits, it was denied that husband and son of the complainant were attacked by Lal Singh and others. However, it was admitted that they were admitted in Civil Hospital, Guruharsahai on 17.3.2010 at 9.15 a.m. and were attended by OP No. 1. Rs. 50/- were deposited for MLR. As per the MLR, Ajaib Singh has been injury on right fronto parietal region. OP No. 1 provided best medical treatment to the deceased. When there was no bony injury in the X-ray examination, injury was simple in nature, therefore, he was discharged from hospital on 21.3.2010 after receiving Rs. 150/- as a fee for the X-ray examination, as the condition of the patient was satisfactory. During his admission, his BP and pulse were normal, respiration was normal and he neither complaint any symptom of head injury like vomiting, severe headache, vertigo and ENT bleed etc. It was denied that Ops were negligent in providing appropriate treatment to the deceased. It was denied for want of knowledge that after discharge the condition of the patient had deteriorated. It was also denied for want of knowledge that he was first taken to Amar Hospital, Ferozepur and then to Civil Hospital, Ferozepur. It was also denied that he died at 2.40 a.m. on 22.3.2010. The Department of Pathology in his report dated 2.8.2010 also observed as under:-
"Heart : Weight - 540 gm.
Left Ventricular wall thickness - 1.6 cm Right Ventricular wall thickness - 0.7 cm M/E : Coronaries - Shows atherosclerotic changes First Appeal No. 1324 of 2012 6 Myocardium - Shows foci of old healed myocardial infarction."
Therefore, it is clear that he was suffering from heart ailment, therefore, possibility of his death due to heart attack cannot be ruled out. It was denied that the cause of death was injury to vital organs i.e. brain of Ajaib Singh. It was denied that the complainant spent a sum of Rs. 60,000/- for the treatment of the deceased. Complaint was without merit and it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence her affidavit Ex. C-1, OPD Card Ex. C-2, X- ray report Ex. C-3, admission record Ex. C-4, receipt Ex. C-5, OPD card with general case sheet Exs. C-6 & 6, BP record Ex. C-8, post mortem report Ex. C-9, report of Chemical Examiner Ex. C-10, Pathology report Ex. C-11, cause of death Ex. C-12. On the other hand, OPs had tendered into evidence affidavit of Dr. Sukhwinder Singh, MO Ex. R-1.
6. After going through the allegations in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the complaint was allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, OPs have filed their separate respective appeals.
8. We have heard the learned counsel for the parties.
9. In the grounds of appeal, it has been contended that OP No. 1 is a Government Doctor and Op No. 2 is Medical Officer of OP First Appeal No. 1324 of 2012 7 No. 3 hospital. It was further contended that no consideration was paid by the complainant/deceased. Rs. 50/- were charged for medical legal report and Rs. 150/- for X-ray examination. No money was charged for giving the treatment. Accordingly, the complainant does not come within the definition of the 'consumer' as defined under the Act and has relied upon the judgment "Indian Medical Association versus V.P. Shantha & Others" III (1995) CPJ 1 (S.C.) wherein in para No. 44 of the judgment, it has been mentioned as under:-
"44. The other part of exclusionary clause relates to service rendered "free of charge". The medical practitioners, Government hospitals/nursing homes and private hospitals nursing homes (hereinafter called "doctors and hospitals") broadly fall in three categories:-
i) Where services are rendered free of charge to everybody availing the said services.
ii) where charges are required to be paid by everybody availing the service, and
iii) where charges are required to be paid by persons availing services but certain categories of persons who cannot afforded to pay are rendered service free of charges.
There is no difficult in respect of first two categories, Doctors and hospitals why render service without any charge whatsoever to every person availing the service would not fall within the ambit of "service" under Section 2(1)(o) of the Act. The payment of token amount for registration purposes only First Appeal No. 1324 of 2012 8 would not alter the position in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1)(o) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1)(o) of the Act."
10. Now we have to see whether any charges were taken from the complainant/deceased or whether the services were 'free of charges'. No doubt that Rs. 50/- were charged to prepare the MLR, that cannot be taken for the purpose of treatment. But apart from that Rs. 150/- were charged for X-ray examination. X-ray examination was conducted to verify whether there was any bony injury. Therefore, fee towards the X-ray examination is towards the treatment because after verifying the X-ray report then actual line of treatment was to be started by the Doctors. Since there was no bony injury, therefore, simply medicines were given and lateron the patient was discharged. Therefore, it cannot be said that no charges were charged from the complainant. It is a different matter that under the policy of the Government, the charges are charged at a lower level. How much is paid is not the criteria, the criteria is whether any fee is charged in First Appeal No. 1324 of 2012 9 connection with the treatment. Certainly, in this case, a sum of Rs. 150/- was charged from the complainant for X-ray examination that was towards the treatment, therefore, it cannot be said that there was no consideration regarding the treatment given to the patient. Therefore, we do not agree with the plea taken by the counsel for the appellants/Ops that the complainant does not come within the definition of the 'consumer'.
11. It was further argued by the counsel for the appellants/Ops that the evidence has not been properly appreciated by the District Forum. As per the X-ray examination, there was no bony injury, therefore, how the injury to the brain can be cause of death. The patient was discharged from the hospital or his vitals were normal. In case there would have been any problem in the brain then his BP, pulse rate and respiration were normal. There was no symptom of vomiting, severe headache, vertigo and ENT bleeding, therefore, the condition of the patient being satisfactory, he was discharged. In case lateron his condition had become critical and was taken to Amar Hospital, Ferozepur and then to Civil Hospital, Ferozepur then the record of these hospitals has not placed on the record, therefore, we does not know what type of treatment was given by them and what were the symptoms of the patient at that time. Moreover, Hispathology report also shows the wall thickness of left and right ventricular walls and coronaries also shows atherosclerotic changes and myocardium shows old healed myocardial infarction, therefore, possibility of heart attack cannot be ruled out. Producing of that record was necessary to connect with the record of OP Hospital. First Appeal No. 1324 of 2012 10 Therefore, the findings of the learned District Forum are not correct findings to hold the Ops for medical negligence.
12. On the basis of pleadings of both the parties and evidence on the record, the patient Ajaib Singh had some dispute in the village and had received some injuries in the dispute and was admitted with the OP hospital at 9.30 a.m. with following injuries:-
"1. Diffuse swelling meaning 6 x 4 cm on right fronto parietal region on head.
2. blackish swelling meaning 6 x 5 cm on right upper eyelid Ad - Xray AP < Lateral
3. c/o pain (L) Leg Ad - Xray (L) Leg AP < Lateral
4. c/o pain (L) side of chest Ad - CXR PA vicn
5. c/o pain (L) arm Ad - Xray (L) an AP < Lateral
6. c/o pain back of neck Ad - Xray C-spine AP < Lateral"
On the basis of these injuries, X-ray was advised and on the basis of X-ray report Ex. C-3, no body injury was seen by the Radiologist and he declared all the injuries simple in nature.
13. It has been argued by the counsel for the complainant that in case there was injury on the head, some CT Scan/ MRI should have been suggested. Firstly, it is Sub Divisional Hospital, MRI/Ultra Sound facilities may not be available or moreover, some suspicious should be there to refer it for Ultra Sound/CT Scan. When in the X-ray report there was no bony injury and all the injuries were simple in nature then the Doctor cannot anticipated anything bad in the brain of First Appeal No. 1324 of 2012 11 the patient when all other vitals as referred above were normal and no symptoms were noted down for any internal injury to the brain. Therefore, whatever possible were the possibilities of the treatment that was given by the Doctor. There is no positive evidence or any expert report that in the given circumstances what other treatment should have been given. Here it is pertinent to mention that after discharge from the hospital when as per the allegations of the complainant that his condition had become critical and was taken to Amar Hospital, Ferozepur then to the Civil Hospital, Ferozepur but the records of that hospital were not on the record what were the symptoms of the disease at that time. Therefore, connecting evidence is missing. As referred above as per the histopathology report, the patient was also having diagnose of left and right ventricular wall thickness and in those circumstances, possibility of the heart attack cannot be rules out. The Doctor, who conducted the Post Mortem, on the basis of Histopathological report has given the cause of death as injury to the brain, which was sufficient in the ordinary course of nature to cause death. However, the patient remained admitted in the hospital from 17.3. to 21.3.2010. In case any injury to the brain would have been fatal then symptoms would have appeared during these four days but during those four days, there was no symptoms of any vomiting, severe headache, vertigo and ENT bleed, pulse rate and BP was normal. Therefore, mere report of the Doctors declared cause of death due to head injury may not be sufficient that actual cause of death was brain injury.
First Appeal No. 1324 of 2012 12
14. In view of our above discussion, some positive evidence or expert report should have come to say that there was negligence on the part of the Ops. The principle of medical negligence has been well established in the judgment "Bolam Vs. Friern Hospital Management Committee", (1957) 1 W.L.R. 587: 1957(2) ER 118 wherein it has been observed that the Doctor is not guilty of negligence, if he had acted in accordance with the practice accepted by a responsible body of medical men. Skilled in that part of art. The medical professional is expected to exercise reasonable degree of care and knowledge and degree of care is not expected to be very high or to be very low. Further it was held by the Hon'ble Supreme Court in the judgment of "Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others", 2010(3) SCC 480 and issued the guidelines that the following principles must be kept in mind while deciding whether the medical professional is guilty of medical negligence:-
"I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.First Appeal No. 1324 of 2012 13
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.First Appeal No. 1324 of 2012 14
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
15. According to that judgment to prove the medical negligence, it is required for the complainant to establish that the Doctor has not done the required thing, which were required to be done by him or Doctor has done anything which was not required. The allegations of the complainant are that the Doctor did not refer the patient for any Ultrasound or CT Scan to know any problem in the brain of the patient. It was an injury case in the fight between two parties and after issuance of the medical report, the injuries were First Appeal No. 1324 of 2012 15 subject to X-ray and in the X-ray, there was no bony injury and all the injuries were declared simple in nature. No other symptoms have appeared to see any problem with the patient on the basis of which he could be referred to Ultrasound/CT Scan. Under the given circumstances, whatever treatment was possible that was given. The findings of the District Forum that the Doctor failed to properly diagnose the patient, therefore, they were responsible for the medical negligence. However, in the given circumstances as referred above, it was an injury case and all the injuries were referred to X-ray examination and on the basis of X-ray examination, all the injuries were declared simple in nature. As referred above, no other symptoms had appeared during the four days in which the patient remained admitted in the hospital indicating any problem with the brain, therefore, in those circumstances, no other test can be expected from the Doctor, therefore, we are of the opinion that their does not seem any case of medical negligence on the part of the treating Doctor. In these circumstances, the findings so recorded by the District Forum are not sustainable.
16. During the pendency of the appeal, the record was referred to the PGIMER and PGIMER in his report dated 25.7.20015 has observed as under:-
"As per the record provided decease Ajaib Singh was admitted
17.3.2010 with multiple injuries and discharge on 21.3.10 in satisfactory condition. The patient was apparently alright till 2PM on 21.3.10. There is no medical record of the patient from 2PM on 21.3.2010 till 2.40AM on 22.3.10 i.e. time of death to First Appeal No. 1324 of 2012 16 ascertain possible cause of death. However the final opinion of the doctors who had conducted the post mortem cannot be overlooked."
17. They have also observed in their report that no medical record of the patient from 2 PM to 21.3.2010 till 2.40 am on 22.3.2010 was available to ascertain the possible cause of death.
18. In view of the above, we accept both the appeals. We are of the opinion that no case of medical negligence is made out. The order of the learned District Forum is set-aside. Accordingly, the complaint filed by the complainant is hereby dismissed. No order as to costs.
19. The appellant in F.A. No. 1324 of 2012 had deposited an amount of Rs. 25,000/- with this Commission in the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to appellant No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
20. The appellant in F.A. No. 1339 of 2012 had deposited an amount of Rs. 25,000/- with this Commission in the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
21. The arguments in these appeals were heard on 30.9.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
First Appeal No. 1324 of 2012 17
22. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
23. Copy of this order be placed on First Appeal No. 1339 of 2012.
(Gurcharan Singh Saran)
Presiding Judicial Member
October 12, 2015. (Surinder Pal Kaur)
as Member