State Consumer Disputes Redressal Commission
Neeta vs Khanna Nursing Home & Anr. on 29 November, 2023
FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023
DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 31.07.2013
Date of hearing: 08.08.2023
Date of Decision: 29.11.2023
FIRSTAPPEAL NO. 830/2013
IN THE MATTER OF:
MS. NEETA
D/O LATE SHRI P.N. CHADHA,
R/O C-2/ B/ 30B, JANAKPURI, NEW DELHI-58.
(Through: Mr. Ram N. Sharma, Advocate)
...APPELLANT
VERSUS
1. M/S KHANNA NURSING HOME,
THROUGH ITS PROP. /PARTNER
DR. SUBHASH KHANNA,
C-4F/245, JANAKPURI, NEW DELHI-58.
(Through: Mr. Manish K. Vaid, Advocate)
2. DR. R.K. KAPOOR,
ORTHOPEDIC SURGEON,
C-4C-215, JANAKPURI, NEW DELHI-58.
(Through: Mr. O.P. Gupta & Co.)
...RESPONDENTS
DISMISSED PAGE 1 OF 16
FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Trivedi Prafulla, counsel for the Appellant.
Mr. Manish Vaid, counsel for the Respondent no. 1.
Mr. O.P. Gupta, counsel for the Respondent no. 2.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are:
"Briefly stated case of the complainant is that she met with a road accident on 1st July, 2006 with car bearing registration No.DL9C P4662. She was taken to Khanna Nursing Home by the public. Dr. Subhash Khanna did not prepare any MLC and also did not give her proper treatment. The person who caused the accident was influential and approached Dr. Subhash Khanna Rinkesh Chawla and under their influence treatment was neglected. She had suffered injuries on her right ankle and fracture of posterior malleolous and other injuries for which POP cast was applied. She had also suffered injuries in her spine for which no treatment was given. She reached the nursing home at 6.30pm and the orthopedic surgeon was called at 10.00pm All this was done to help the accused. She remained under continuous treatment , contacted Dr. Khosala and she was referred to Indian Spinal Injury Hospital Vasant Kunj where spinal injury was detected in MRI report on 12.5.07 She lodged complaint with Medical Council of India who issued warning to Dr. Subhash Khanna , Rinkesh Chawla and Dr R.K. Kapoor for not preparing the MLC. Under these circumstances she claimed a compensation of Rs.10lakhs."
DISMISSED PAGE 2 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023
2. The District Commission after taking into consideration the material available on record, passed the order dated 28.05.2013, whereby it held as under:
"Case was referred to Medical superintendent, DDU to constitute a medical board and give expert opinion that whether there was any medical negligence committed by doctors at Khanna Nursing Home or not. The expert opinion was also received. We have perused medical opinion submitted by Dr. S.K. Sharma, Dr. Anurag Jain and Dr. Harmeet Singh. The allegations of the complainant are two fold---firstly, even though it was a case of road accident but no MLC was prepared by the doctors at nursing home and secondly, no treatment was given to her with regard to her spinal injury. In this regard, complainant submitted that she made a complaint to the Medical Council of India in this and a warning was issued to Dr. Subhash Khanna, Rinkesh Chawla and Dr. R.K. Kapoor for not preparing the MLC. It might be a professional misconduct if no MLC is prepared by doctor in case of road accident patient or it may be a derelition of duty but does it amount to deficiency in service or not is a mixed question of fact and law and depends upon the facts of each case. The defence version was that she was brought to the nursing home by ASI Uttam chand meaning thereby that the accident was already reported to the police before approaching the nursing home. so no duty was cast on the doctor to intimate the police. MLC is prepared in a medico legal case if the complainant has lodged the complaint or wants to take any legal action in the matter. Statement of Ms Neeta was recorded by ASI Uttam chand wherein she narrated the fact that how the accident took place and in the last lines she stated that she was brought to the Khanna Nursing Home by Deepak --- husband of Ms Sapna who was driving the car which caused the accident. She only wanted the cancellation of the driving licence of Ms Sapna and no other action DISMISSED PAGE 3 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023 against her. The argument advance on behalf of the respondent was that as she did not want to lodge any FIR, hence MLC was not prepared by them. She was already accompanied by police officer who recorded this statement. He should have requested the doctor to prepare the MLC if required for final action. No such request was made by him also. Admittedly no MLC in any Performa was prepared but at the same time prescription slip given by the doctor, which was filed on record by the complainant, gives sufficient information about the accident and is as good as MLC. Details of the injuries as well as history of road accident was recorded. it was recorded that she had fracture posterior malleolous. POP cast applied. She was advised not to bear weight; medicines was prescribed for 5 days. Even injury on the night ankle was observed. The complainant has also placed on record photocopy of one document which is undated and is on the letter head of the Khanna Nursing Home wherein doctor has given the opinion about the nature of injury suffered by her. It reads "one photocopy of the OPD slip made available to me by investigating officer Mrs. Reenu Sharma of the complainant patient Ms Neeta Chadha. Injury seems to be grievous caused by a blunt object. The above complainant was treated at Khanna Nursing Home on 1st July, 2006 as an OPD case' "The complainant lodged FIR in this case on 16.10.06 i.e. after three and a half months of the accident. There is a reference to PCR call regarding this accident and entry of D.D. No.29A at PS Janak Puri with regard to this accident and in that statement she had stated that she did not want any action against the accused. In spite of this D.D. No.29A was kept pending for few days, but as none came forward to lodge any complaint D.D. was filed. After three and a half months FIR u/s 279 /337 IPC was recorded and medical opinion was sought by the investigating officer on the basis of this MLC itself. Hence, no prejudice was DISMISSED PAGE 4 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023 caused to the complainant by non preparation of MLC because MLC is necessary to prove the factum of road accident and the nature of injury. The opinion of the doctor regarding nature of the injury and all other relevant information is available in this case for the police to take any legal action against the offending driver. Only due to the statement of the complainant which she admitted in the FIR, MLC was not prepared. And under the facts and circumstances of the case, it does not amount to medical negligence or deficiency in service because under the given facts and circumstances MLC was not required.
The next question is whether the doctor was negligent in giving treatment to the complainant. The material on the record shows that one orthopedic surgeion was called, x-ray was taken, fracture was reported, POP cast was applied. There was no complaint of any spinal injury or back pain at that time. Hence, no treatment for any spinal injury was given at Khanna Nursing Home. Subsequently she never reported to that nursing home for any follow up or with any complaint of back pain. Had there been any serious spinal injury due to the accident on 1st July, 2006 itself, the injured would not have moved out of the nursing home without complaining of any back pain. For the first time she made a complaint of back pain after 3 months of the accident and MRI was done after 11 months of the accident which has not revealed any serious injury in the spine. MRI dated 12.5.07 gives the report "no significant abnormality detected in cervico-dorsal spine except a focal syrinx at C7 -D1 "This could be due to any traumatic effect or in the natural course of natural aging process. The patient is 39 year old female and this could be even the result of wrong posture. Finding this problem in the spine after 11 months of the accident does not mean that attending doctor was DISMISSED PAGE 5 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023 negligent in providing medical service who simply attended the complainant in the OPD. The patient never came back to that doctor for any follow-up. Even the POP cast was not removed at Khanna Nursing Home and complainant has nowhere disclosed that from where she got that cast removed. When the complaint was made to Medical Council of India, the finding of the Medical Council was that "It is further held that the line of treatment adopted in the management of this case was in accordance with the professional practices in such cases and since the X-ray and the prescription slip dated 1" July, 2006 of Khanna Nursing Home was produced by complainant herself before the Council no case of unethical conduct on the part of Khanna Nursing Home is made out for non supply of medical records".
Case was also referred to DDU hospital for expert opinion. Relevant part of the report is "as per records at the time of examination after the accident the patient had not complained for any back problem. There is no record available after initial treatment till 5.9.06 to show that the patient had shown to any other doctor. As per the record submitted it is on 5.9.06 Ms Neeta had shown to Dr. Gopal Goyal and she was diagnosed as the case of fracture Posterior Malleolous and advised treatment for it. Even on this visit no complaint of back pain was made by her As per record it is on 15.9.06 that the complaint of numbness of right leg was made and weakness of EHL was noticed on examination and MRI was advised by Dr. Gopal Goyal MRP showed the finding of PIV DL-4 L-5 and L-5 -S1 and she was treated for that. She later took treatment from spinal Injury Center for the same. The final opinion of the medical board was that:
DISMISSED PAGE 6 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023
1. The patient was a care of road traffic accident and had fracture of Posterior Malleolus (Rt.) ankle for which MLC should have been made by the doctor who attended the patient first.
2. The treatment given initially to the patient for ankle injury had been satisfactory.
3. There is no treatment records available after initial management of the injury for nearly two months.
4. The first recorded complaint of back pain was made on second visit to Dr. Gopal Goel on 15/09/06 which was after two and a half month of injury for which she was given treatment.
It appears by the facts submitted to the board that the treatment given to Ms. Nita initially for ankle injury sustained during accident was satisfactory and there is no record of any complaint of back problem up to two and a half months after injury. Its appears that she did not have any significant injury to back at the time of accident. There appears to be no medical negligence in the treatment provided, however MLC should have been made in the case by the doctor who attended the patient first.
Relying upon the opinion of the Medical Council of India as well as Medical Board DDU Hospital, we have come to the conclusion that none of the doctor attending her at Khanna Nursing Home committed any medical negligence. There was no deficiency in service either. She was promptly attended for whatever complaint was made by her. This complaint was nothing but an after thought and is devoid of merit. Case is hereby dismissed. parties shall bear their own cost."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant/ Complainant has preferred the present appeal, submitting the grounds of appeal that the District Commission failed to consider that the documents which was provided by the DISMISSED PAGE 7 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023 Respondents, suffered from various material discrepancies. The Appellant further contended that the District Commission failed to consider that that the MLC was not prepared by the concerned doctor which itself a deficiency on the part of the Respondents. Pressing the aforesaid submissions, the Appellant prayed for setting aside the order of the District Commission.
4. The legal heirs of the Respondent no.1 have filed the reply to present Appeal whereby, denying all the allegations made by the Appellant and submitted that there is no error in the impugned judgment as the entire material available on record was properly considered by the District Commission before passing the said judgment.
5. On the other hand, during the course of proceedings, counsel for the Respondent no. 2 appeared and submitted that he does not wish to file the reply to the present Appeal.
6. We have perused the Appeal, Reply of the Respondent no. 1 and the Impugned order.
7. The question for consideration before us is whether there is any deficiency of service on the part of Respondents in treating the Appellant.
8. Before delving into the merits of the case, we deem it appropriate to refer to the law on the cause. This Commission, has, in detail discussed the scope and extent of Negligence with respect to Medical Professionals in CC- 324/2013, titled Seema Garg & Anr. vs. Superintendent, Manohar Lohia Hospital & Anr. decided on 31.01.2022, wherein one of us (Justice Sangita Dhingra Sehgal, President) was a member. The relevant portion has been reproduced as below:
DISMISSED PAGE 8 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023
"9.......The Hon'ble Apex Court, after taking into consideration its previous decisions on Medical Negligence, has consolidated the law in Kusum Sharma and Ors. vs. Batra Hospital and Medical Research Centre and Ors. reported at (2010) 3 SCC 480, wherein, it has been held as under:
"94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
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. 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 DISMISSED PAGE 9 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023 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.
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.
DISMISSED PAGE 10 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023
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.
95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind."
10. In cases wherein the allegations are levelled against the Medical Professionals, negligence is an essential ingredient for the offence, which is basically the breach of a duty exercised by omission to do something which a reasonable man would do or would abstain from doing. However, negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence and they are entitled to protection so long as they follow the same."
(emphasis supplied)
9. In the present case also, it will have to be ascertained whether there was any lack of skill and competence on the part of the operating doctor and/or any omission to do what was actually required in the present facts and circumstances.
10. On perusal of record, we find that the Appellant was taken to the hospital of the Respondent no. 1 in unconscious state after getting DISMISSED PAGE 11 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023 hit by the vehicle, wherein the Respondent no. 1 had duly examined the Appellant and observed that the Right ankle of the Appellant got fractured upon which, the Respondent no. 2 (orthopaedic surgeon) was called by the Respondent no. 1. The condition of the Appellant was examined by the Respondent No. 2 using an x-ray, and after that, P.O.P. was casted on the injured ankle. The Appellant was advised not to bear weight on the injured leg and was also instructed to come on the following day i.e. on 02.04.2006, in order to compare the reduction in the swelling of injured ankle. However, from the records, it is clear that the Appellant went to the hospital of Respondent no. 1 on 04.07.2006 i.e. after three days of the said incident, where the Respondent No. 1 performed another x-ray and discovered that the swelling in the appellant's right foot had subsided. Also, the Medical Expert Opinion was also taken by the Ld. District Commission, wherein a report was submitted by the concerned stating that 'the treatment given initially to the patient for ankle injury had been satisfactory'. Therefore, it is abundantly clear that the Appellant was properly treated by the Respondents and there was no lack of skill on the part of Respondents in the present case.
11. As far as, the concern of the any omission on the part of the Respondents in the instant case, the Appellant has contended that the Respondents have done the following omissions on their part in the present case:
a) Firstly, the Respondents failed to examine the spine injury of the Appellant which was also caused due to the said accident.
DISMISSED PAGE 12 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023
b) Secondly, no MLC was prepared by the treating doctor in the present case.
12. To resolve the first issue, we carefully perused the pleadings before this commission as well as the pleadings pleaded before the District Commission and found that the Appellant never complained about the spine injury to the Respondents during her check up on the date of incident. Further, no complaint was even raised by the Appellant during her second visit on 04.07.2006. Also, we find that for the first time, the alleged injury in the spine was came into existence on 25.09.2006 i.e. around after two and a half month from the date of incident, when the MRI Lumbo- Sacral Spine was done by the Janta X-Ray Clinic, Tilak Nagar, Delhi and Further, the MRI was also conducted by the Indian Spinal Injuries Centre on 05.12.2007. Therefore, it is evident from the above discussion that the injury in the spine of the Appellant was not present at the time of incident, which occurred on 01.07.2006 and holding the Respondents accountable for the omission of failing to examine the spinal injury is not justified in the present case.
13. After deciding the first issue on merits, the last issue to be adjudicated before us is whether there is any omission on the part of Respondents for not preparing the MLC in the present case.
14. Perusal of the record shows that the Respondents in their written submissions before the District Commission has contended that the Appellant was brought up to the hospital by the ASI Uttam Singh, who asked the Appellant before going for treatment, 'whether she wanted to register the case against the accused', to DISMISSED PAGE 13 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023 which, the Appellant specifically denied to file any complaint and the said statement was duly recorded by ASI Uttam Singh vide DD no. 29A. Since, the Appellant arrived at the hospital alongwith the police officer and after analysing the statement made by the Appellant to the said official, the Appellant was treated as outdoor patient by the Respondent no.1 and general OPD slip was prepared in accordance with the medical practice, practiced by the doctors in similar cases. Further, the FIR in the present case was registered on 16.10.2006 at Janak Puri, Police Station, Delhi. From the above, it is clear that the Respondents on relying upon the DD no. 29A which was recorded by ASI Uttam Singh, treated the Appellant's case as an outdoor patient case, and therefore, no MLC was prepared by the Respondents.
15. Keeping in view of the above situation, we find no negligence on part of the Respondents as the patient was treated with due care and caution by the Respondents and the treatment was done in accordance with the medical practice followed by the doctors while treating the patient of similar condition.
16. To strengthen our view, we deem it appropriate to refer to a landmark precedent titled as "Achutrao Haribhau Khodwa v. State of Maharashtra" reported as 1996 (2) SCC 634, wherein the Hon'ble Supreme Court has observed that:
"14. The skill of medical practitioners differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with DISMISSED PAGE 14 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023 due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.
15. In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable. As held in Laxman's case (supra) by this Court a medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor."
17. From the above discussion, we find no infirmity in the order dated 28.05.2013 passed by the District Consumer Disputes Redressal Forum III, Community Centre, Janakpuri, Delhi- 110058.
18. Consequently, the present Appeal stands dismissed with no order as to costs.
19. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
20. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
DISMISSED PAGE 15 OF 16 FA/830/13 MS. NEETA VS. KHANNA NURSING HOME & ORS. DOD: 29.11.2023
21. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
29.11.2023 DISMISSED PAGE 16 OF 16