State Consumer Disputes Redressal Commission
A.C.Majumdar vs Chandulal Chandrakar Memorial ... on 30 January, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2016/02
Instituted on : 02.02.2016
A.C. Mazumdar, Aged 54 years,
S/o Late Shri K.C. Mazumdar,
45, Arya Nagar,
District Durg (C.G.) ... Complainant.
Vs.
1. Chandulal Chandrakar Memorial Hospital,
Through - Director / Competent Officer,
Nehru Nagar Chowk, G.E. Road,
Bhilai, District Durg (C.G.)
2. Arvindo Diagnostic Centre,
Through : Manager / Competent Authority,
Chandulal Memorial Hospital,
Nehru Nagar Chowk, G.E. Road,
Bhilai, District Durg (C.G.)
3. Yashoda Super Speciality Hospital,
Through : Director / Competent Authority,
Nalgonda, 'X' Roads, Malakpet,
Hyderabad 500 036 (Andhra Pradesh)
4. The Oriental Insurance Company Limited,
Through : Branch Manager, Extension Counter 10/3A,
Maitree Nagar, Risali,
Bhilai(C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Rajesh Pandey, for the complainant.
Shri R.K. Bhawnani, for the O.P. No.1 & O.P. No.2.
None for O.P. No.3.
Miss B.S. Kanthi, for the O.P. No.4.
ORDER
Dated : 30/01/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
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(a) To direct the O.P. No.1 & O.P. No.2 to jointly and severally pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs) for expenses incurred in respect of his treatment and for travelling.
(b) To direct the O.P. No.1 & O.P. No.2 to pay a sum of Rs.10,00,000/- (Rs. Ten Lakhs) towards physical agony and inconvenience suffered by the complainant due to medical negligence and negligent treatment on their part.
(c) To direct the O.P. No.1 & O.P. No.2 to pay a sum of Rs.10,00,000/- (Rs. Ten Lakhs) to the complainant towards compensation for mental agony.
(d) To direct the O.P. No.1 & O.P. No.2 to pay a sum of Rs.50,000/- (Rupees Fifty Thousand) to the complainant towards advocate fees and cost of litigation and to grant any other relief, which this Commission deems fit.
2. Briefly stated the facts of the complaint of the complainant are that in afternoon on 24.01.2014, the complainant was suffering from vomiting and he was having heaviness and pain in his chest, therefore, as per medical advice he was admitted in the O.P. No.1 Hospital. The doctors present in the O.P. No.1 hospital conducted sensitive rapid, malaria rapid test, liver function test, renal function test and other various tests and treated the complainant. In spite of giving treatment // 3 // by the doctors of the O.P. No.1, the condition of the complainant was not improving therefore, the doctors decided to conduct C.T. Scan Head of the complainant. The C.T. Scan Head of the complainant was conducted by the O.P. No.2 on 25.01.2014 and the test report was provided to the O.P. No.1. On the basis of C.T. Scan film, the doctor of the O.P. No.1 informed the complainant that there is blood clot at various places in blood artery of brain of the complainant. M.R.I., Brain Angiography and other test of the complainant was got conducted in the O.P. No.1 hospitals and tests reports were obtained The complainant was admitted in the O.P. No.1 hospital on 24.01.2014 and he was discharged on 30.01.2014 The complainant was directed to regularly consume the medicines which were provided by the treating doctor of the O.P. No.1 hospital and he was directed again come in the O.P. No.1 hospital for medical test after 10 days. The complainant was taking the medicines as per instructions of the doctors of the O.P. No.1 and on 10.02.2014 again he went to O.P. No.1 hospital for check up where Dr. N.S. Dixit examined the complainant and gave medicines and instructed him to again come in the O.P. No.1 Hospital after 15 days. Accordingly, the complainant went to O.P. No.1 Hospital on 24.02.2014 where again Dr. Dixit examined the complainant, gave medicines and instructed him to again come in the hospital after one month for further tests. Inspite of continuous treatment taken by the complainant from the O.P. No.1 hospital for // 4 // near about 1 ½ months, the health of the complainant was not improved, therefore, the complainant went to Dr. G.K. Arora on 12.03.2014. Dr. G.K. Arora advised the complainant for MRI test. The M.R.I. Brain test of the complainant was taken in Life Care Scan and Research Centre on 13..03.2014 and in the report it was found that all things are normal, whereas during the period from 03.02.2014 to 10.03.2014, according to the test and opinion of Dr. M.P. Chandrakar, the condition of the complainant was such that he was immediately required to be admitted in the hospital. The complainant perused the earlier test report and was surprised that doctors of the O.P. No.1 hospital treated the complainant on the basis of C.T. Scan Report of one lady. The complainant informed regarding the same to the O.P. No.1 & O.P. No.2, but they did not take the complaint seriously and told the complainant that they are treating him rightly. The complainant decided to take treatment from the O.P. No.3 and on 24.03.2014 he reached to Yashoda Hospital, Hyderabad where necessary tests were done and he was admitted in the hospital on 25.03.2014 After treatment given by the O.P. No.3 the condition of the complainant was improved and the complainant was discharged on 30.03.2014 . On 04.04.2014 the complainant went to O.P. No.3 hospital for follow check up and he was directed to again come after one month. On 06.05.2014 the complainant again went to O.P. No.3. The O.P. No.1 & O.P. No.2 committed medical negligence and due to their // 5 // act he suffered mental agony and was required to spent huge amount in his treatment and to take treatment from the O.P. No.3. Hence the complainant filed the instant complaint.
3. The O.P. No.1 filed its written statement and averred that the complainant was admitted on 24.01.2014 at around 5 P.M. with history of fever, irritable behaviour and restlessness of one day duration under medicine department He was detected to have hypertension, his personal history included alcohol and tobacco ingestion. He was evaluated for the same. His routine blood investigation including ECG, ECO, chest radiograph were normal and he was referred for opinion to Neuro Department. Dr. N. S. Dixit at around 10 P.M. saw and found him marked by confused, restless, irritable, unable to comprehend anything. He was advised certain medications to calm him and control his restlessness and then to do his CT brain. On 25.01.2014 his CT brain was done and treatment was started and medicines were given to by which his condition was improved and then his MRI was done in which significant improvement was seen and his condition was improved and he was shifted out of ICCU to private cabin and his MRI brain showed features suggestive of small sub-cortical and deet white matter is ischemic changes and the patient was advised for discharge as he was recovered. The treatment which was given to the patient was the normal treatment and some medicines were prescribed which were general medicines and which are having // 6 // no side effect or harm. The patient was discharged from the hospital in a stable condition and he was having no problem. The patient was admitted for 4 days and his total bill including room charges and medicines was near about Rs.38,000/-. The patient was asked for follow-up treatment and accordingly he was treated. The complainant was having many other problems and accordingly he was suggested and his treatment was done. As per the condition of the patient at the time of admission, the position of the patient was not good and it was suggested accordingly. The O.P. No.1 has not taken any extra money from the complainant. The complainant has paid the amount of Rs.38,000/- which includes treatment and room charges and charges of investigation. The complainant was having many other problems for which he has taken the treatment in other hospital. The O.P. No.1 has not committed medical negligence. The complainant was having many other problems and for that he went to O.P. No.3 hospital which is clear from the treatment papers. The complainant is not entitled for any amount and relief claimed by him in the complaint. The complainant has not properly done the valuation of the case and has filed the case before this Commission, as the O.P. No.1 has taken only the amount of Rs.38,000/-. Therefore, the complaint of the complainant is not maintainable before this Commission and is liable to be dismissed on this ground.
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4. The O.P. No.2 has filed its written statement and averred that the O.P. No.2 is having diagnostic centre in the premises of Chandulal Chandrakar Memorial Hospital, Bhiali addressed with Arvindo Diagnostic Centre. The main task of the O.P. No.2 is conducting C.T. Scan and reports are prepared by well qualified doctors basing on the film. The O.P. No.2 is no way concerned with the treatment. The O.P. No.2 had never given any kind of treatment to the complainant. The allegations made by the complainant in the entire complaint stating that the O.P. No.2 was negligent in treatment, are not supported with relevant documents. Without filing any document in support of the pleading, the complaint against the O.P. No.2 is not tenable and is liable to be dismissed. The O.P. No.1 is only a Diagnostic Centre but does not provide any kind of treatment, therefore, the question of negligence in giving treatment does not arise against the O.P. No.2. As advised by Dr. N.S. Dixit of Neuro Department, the O.P. No.2 did CT Scan Head of complainant and sent the report to the concerned department. The O.P. No.2 had charged Rs.2,800/- towards CT Scan Head and issued cash receipt. On 25.01.2014 the O.P. No.2 had done C.T. Scan Head of the A.C. Majumdar. After getting C.T. Scan done, report was prepared by most qualified with detailed findings mentioned in paper form. On the said report the name mentioned is A.C. Majumdar, on the envelope in which report enclosed the name mentioned is A.C. Majumdar and the most relevant piece of evidence // 8 // is the C.T. Scan Film on which the name of A.C. Majumdar is printed. Therefore, it is not true to state that the O.P. No.2 had given treatment to the complainant. The complainant had not approached the O.P. No.2 to bring to notice about issue of C.T. Scan Film belong to a female and the averment of the complainant is utterly false and concocted for the purpose of destroying the repo of the O.P. No.2. The O.P. No.2 is not concerned about treatment. The O.P. No.2 does not interact with the patient or even does not given any treatment, but it is only a diagnostic centre. In the case of the complainant, the O.P. No.2 had charged Rs.2,800/- towards CT Scan and Head and issued a C.T. Scan film and report stating normal. The total amount charged was Rs.2,800/- towards C.T. Scan. The complaint is liable to be dismissed.
5. None appeared for the O.P. No.3 inspite of service of notice through registered post, therefore, written statement, affidavit and documents have not been filed on behalf of the O.P. No.3.
6. The O.P. No.4 (Insurance Company) filed its written statement and averred that the O.P. No.1 had purchased a policy covering risk for error and omission - Medical Establishment Chandulal Chandrakar Memorial Hospital, Nehru Nagar, Bhilai, vide policy No.192190/48/2014/6 covering period from 06.09.2013 to midnight of 05.09.2014. The total sum assured under the Policy No.192190/48/2014/6 obtained by the O.P. No.1 is Rs. 60,00,000/-. The total sum insured would be indemnified in case of error and // 9 // omission caused by the insured during the policy period limited to four individual case. The liability of the O.P. No.4 in any case is limited to Rs.15,00,000/- subject to compliance of conditions, causes, warranties and endorsements. In case if the complainant succeeds to prove negligence of O.P. No.1 & O.P. No.2, limit of indemnity of the O.P. No.4 would be Rs.15,00,000/- only subject to terms and conditions of the policy. As per medical record and on the basis of C.T. Scan, MRI, Angiography and other pathological report the name of A.C. Majumdar is mentioned and also the report in film form enclosed in an envelope were issued to the complainant. The complainant had never raised any complaint against the O.P. No.1 regarding any error being committed by the treating doctors or any omission during the course of his treatment in the Hospital of O.P. No.1. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do any act. In the present case, there are no such pleadings raised by the complainant that the line of treatment was wrong or the doctor's had committed any omission in treating the complainant. The complainant has not pleaded for any error or omission committed by the O.P. No.1. That if any error or omission is proved against the O.P. No.1, then only the liability of the O.P. No.4 comes into existence. The entire pleading of the complainant is that after discharge from the Hospital of the O.P. No.1, he was regularly taking the prescribed // 10 // medicines. There is no such pleading that complainant had suffered with any adverse effect or any side effect by the medicines prescribed by the O.P. No.1. The treatment which was given to the patient was the normal treatment and some medicines were prescribed which were general medicines and which are having no side effect or harm. Basing on the medical record and documents, complainant has paid the amount of Rs.38,000/- includes treatment and room charges and charges of investigation. The complainant was having many other ailment for which he has taken the treatment in other hospital. The O.P. No.1 and O.P. No.2 have charged from the complainant for the treatment, stay charges and investigation charges were of near about Rs.38,000/-. The treatment taken from O.P. No.3 is for different ailment. The complainant was having many other problems and for that he went to O.P. No.3 hospital which is clear from the treatment papers. The complainant is not entitled for any amount and relief as claimed by him in the complaint. The complaint is liable to be dismissed.
7. The complainant has filed documents. Annexure A are documents relating to treatment given by the O.P. No.1 to the complainant for the period from 24.01.2014 to 30.01.2014, Annexure 2 is Discharge Summary issued by O.P. No.1, Annexure 3 is OPD Card dated 10.02.2014, Annexure 4 is OPD card dated 24.02.2014, Annexure 5 is Unfit Certificate, Annexure 6 is prescription issued by Dr. Arora on // 11 // 12.03.2014, Annexure 7 is M.I.R Brain dated 13.03.2014, Annexure 8 are documents relating to treatment of the complainant for the period from 24.03.2014 to 30.03.2014 issued by O.P. No.3, Annexure 9 is Discharge Summary issued by O.P. No.3, Annexure 10 are medical bills, Annexure 11 are documents relating to follow up visit dated 04.04.2014, Annexure 12 are documents relating to follow up visit dated 06.05.2014, Annexure 13 are documents relating to the follow up visit dated 11.08.2014, Annexure 14 are documents relating to the follow up visit dated 24.11.2014, Annexure 15 are documents relating to the follow up visit dated 13.04.2015, Annexure 16 are documents relating to follow up visit dated 05.02.2016, Annexure 17 are treatment treat papers of the complainant issued by Yashoda Hospital for the period from 06.05.2014 to 13.04.2015, Annexure 18 is bill receipt dated 27.01.2014, Annexure 19 is treatment slip issued by Dr. M.P. Chandrakar on 03.02.2014, Annexure 20 is Electrocardiogram dated 10.03.2014.
8. The O.P. No.1 has filed document D-4 which copy of insurance policy issued by the Insurance Company in favour of O.P. No.1 for the period 06.09.2013 to 05.09.2014.
9. The O.P. No.4 has filed certified copy of policy schedule attached with conditions.
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10. Shri Rajesh Pandey, learned counsel appearing for the complainant ha argued that the complainant was suffering from vomiting, and he was having heaviness and pain in his chest. The complainant went to O.P. No.1 hospital for his treatment. On being advise given by the doctors of the O.P. No.1 hospital, the complainant was admitted in the O.P. No.1 hospital. The doctors present in the O.P. No.1 hospital conducted sensitive rapid test, malaria rapid test, liver function test and other various tests and started treatment of the complainant. In spite of giving treatment by the doctors of the O.P. No.1 hospital, the condition of the complainant was not improved, therefore C.T. Scan Head of the complainant was by the O.P. No.2 on 25.01.2014. On the basis of report of C.T Scan, it was found that there is blood clot at various places in blood artery of brain of the complainant. M.R.I., Brain Angiography and other tests of the complainant were also carried out in the O.P. No.1 hospital. The complainant was admitted in the O.P. No.1 hospital on 24.01.2014 and he was discharged on 30.01.2014. The complainant was directed to regularly take the medicines and he was asked to come for medical check up after 10 days. The complainant went to the O.P. No.1 hospital on 10.02.2014 for follow check up and again some medicines were prescribed by Dr. N.S. Dixit to the complainant and he instructed the complainant to come in the O.P. No.1 hospital after 15 days. The complainant went to O.P. No.1 hospital on 24.02.2014 where again Dr. // 13 // N.S. Dixit conducted medical tests of the complainant and gave medicines to the complainant and instructed him to come in O.P. No.1 hospital after one month for conducting tests. The complainant again went to the O.P. No.1 hospital, as advised by Dr. N.S. Dixit, but no improvement was made in the health of the complainant. Then the complainant contacted Dr. G.K. Arora on 12.03.2014 and after conducting test, he advised the complainant for M.R.I. test again. The M.R.I. Brain test of the complainant was conducted in Life Care Scan and Research Centre on 13.03.2014 where it was found that all things are normal, whereas during the period from 03.02.2014 to 10.03.2014, according to the test and opinion of Dr. M.P. Chandrakar, the condition of the complainant was such that he was immediately required to be admitted in the O.P. No.1 hospital. The complainant found that his treatment was started by the O.P. No.1 hospital on the basis of C.T. Scan Film relating to a lady and not on the basis of C.T Scan Film of the complainant. It shows that the O.P. No.1 was negligent in treating the complainant, which comes in the purview of medical negligence. The complainant was admitted in the Yashoda Hospital, Hyderabad (O.P. No.3) on where necessary tests were done and he was admitted in the Hospital on 25.03.2014. After treatment given by the O.P. No.3, the condition of the complainant was improved. The complainant was admitted in O.P. No.3 from 25.03.2014 to 30.03.2014. It shows that the O.P. No.1 & O.P. No.2 // 14 // committed medical negligence and due to their negligent act, the complainant suffered mental agony as well as financial problem. The complainant is entitled for getting compensation from the O.P. No.1 & O.P. no2 as prayed by him in the relief clause of the complaint.
11. Shri R.K. Bhawnani, learned counsel appearing for the O.P. No.1 & O.P. No.2 has argued that the complainant was admitted in the O.P. No.1 Hospital on 24.01.2014 at around 5 P.M. with history of fever, irritable behaviour and restlessness of one day duration. He was detected to have hypertension and he was having personal history of consuming alcohol and tobacco ingestion. His routine blood investigation including ECG, ECO, chest radiograph were carried and were found normal. Thereafter the complainant was referred to Neuro Department for opinion. Dr. N.S. Dixit saw the complainant and found that he was confused, restless, irritable and unable to comprehend anything. The complainant was advised for CT brain. CT Scan of brain was carried out and on the basis of CT Scan and MRI report, the treatment of the complainant was started and the condition of the complainant was improved and he was shifted out of ICCU to private ward. The treating doctor of the O.P. No.1 properly treated the complainant. The complainant made false allegations regarding CT Scan Report. Even Yasoda Hospital (O.P. No.3) has not rebutted the report given by the O.P.No2. The Yashoda Hospital (O.P.) No.3 has also not given any report that treatment given by Dr. N.S. Dixit was // 15 // wrong and also not mentioned anything contrary in the Discharge Summary. In the Discharge Summary of Yashoda Hopsital in the column of Chief Complaint "Chest pain and shortness of breach on exertion" is mentioned. In the column of Personal History it is mentioned "Nil Significant". It shows that the condition was improved by the treatment given by the O.P. No.1 hospital. The complainant did not obtain any expert opinion from Medical Board. The complainant has also not filed any document to show that CT Scan Report on the basis of which treatment of the complainant was started, was of any lady. The allegations made by the complainant is false and frivolous. The complainant is completely unable to prove his case, therefore, the complaint is liable to be dismissed against the O.P. No.1 & 2.
12. None appeared for the O.P. No.3 when the case was fixed for final arguments, inspite of service of notice.
13. Miss B.S. Kanthi, learned counsel appearing for the O.P. No.4 (Insurance Company) has supported the arguments advanced by learned counsel for the O.P. No.1 & O.P. No.2.
14. We have heard learned counsel appearing for the parties and have also perused the documents filed by them in the complaint case.
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15. In the instant case, the complainant has filed Discharge Summary (Annexure 2) issued by Chandulal Chandrakar Memorial Hospital, Bhilai (C.G) in which under the head Past History it is mentioned "c/o fever 1 day, vomiting several times, irritable behaviour, chest pain since today morning." It is also mentioned that the complainant was consumer tobacco and alcohol. The history is always given by the patient or his/her relatives. On the basis of the information given by the patient or his/her relatives, the past history is mentioned during the admission of the patient in the hospital and the same things are mentioned in the discharge summary.
16. The complainant has filed copy of Trop-I Sensitive Rapid Test which is marked as Annexure 1. In the internal page 16 of the above document, it is mentioned thus :-
"N.C.C.T Head Bilateral cerebral parenchyma reveals normal attenuation values. Ventricle and basal cisterns are normal for the age. Posterior fossa structures are unremarkable."
17. Internal Page 18 of the above document is X-ray Chest PA report and Page No.19 is Report of MRI of Brain and Angiography Brain.
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18. In N.C.C.T. Head, Dr. Shriranjan Rao, the Consultant Radiologist mentioned under the head impression : Normal Study. In the X-report Chest PA report,
19. In X-Ray report dated 27.01.2014, issued by Chandulal Chandrakar Memorial Hospital, it is mentioned thus :-
"X-Ray Chest PA MILD CONGESTION NOTED IN BASAL SEGMENTS OF BOTH LUNGS.
CARDIAC SHADOW IS NORMAL."
20. In Report of MRI of Brain and Angiography Brain dated 27.01.2014 issued by BSR Diagnostic Limited, it is mentioned thus :-
"IMPRESSION :
Bifrontal subcortical & deep white matter mild subacute ischemic changes / Small vessel disease. No e/o abnormal signal alteration / diffusion restriction / recent infarct / SOL.
Hypoplastic A1 segment of left ACA - anatomic variations. MR imaging of brain & MR intracranial angiography does not reveal any significant abnormality."
21. The Progress and Treatment report was given by Consultant Doctor of Chandulal Chandrakar Memorial Hospital, Bhilai, in which it is mentioned :-
// 18 // "Progress & Treatment"
This is to certify that Mr. A.C. Majumdar age 54 years had been admitted here for stroke with hypertension on 24.01.2014 and had been under treatment for the same for the same. He requires bed rest for 1 month.
22. In the Progress & Treatment report of Chandulal Chandrakar Memorial Hospital, Bhilai, it has been mentioned that the complainant was suffering from stroke with hypertension .
23. The complainant has filed copy of Discharge Summary dated 30.03.2014 issued by Yashoda Hospital, Hyderabad (O.P. No.3), which is marked as Annexure 9, in which it is mentioned thus :-
DIAGNOSIS :
CAT - EXTENSIVE AWMI - (JAN. 2014) SEVERE LV DYSFUNCITON.
CAG - DVD (25.03.2014) POST PTCA + STENTING TO LAD AND RCA (DES) - 27.03.2014 CHIEF COMPLAINT Chest pain and Shortness of Breath on exertion.
HISTORY OF A 54 year old male patient, Mr. A.C. PRESENT ILLNESS Majumdar, present with H/o chest pain, SOB on exertion, Class III symptoms.
Admitted here for further evaluation and management.
PAST HISTORY Nil significant
PERSONAL HISTORY Nil Significant.
FAMILY HISTORY Nil Significant.
PHYSICAL
EXAMINATION
General Examination :
Patient is conscious /
coherent
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Temp : Afebrile
PR : 96 / min.
BP : 149 / 90 mm Hg.
LMCA : LMCA is normal.
LAD : LAD is a type 'C' vessel. LAD shows 80% stenosis in the proximal segment at the origin of D 1 and 90% stenosis after the origin of major septal artery. Distal to this lesion LAD shows 95% stenosis. Distal to the lesions LAD is of thin calibre.
D1 and D2 are of smell calibre vessels and show 80% stenosis. DIAGNOSIS : CAD : Double Vessel Disease/ ADVICE : PTCA and stenting of RCA & proximal & mid LAD. PROCEDURE PERFORMED :
CAG done on 25.03.2014 PTCA + Stenting to LAD and RCA (DES) on 27.03.2014.
COURSE IN THE HOSPITAL :
Patient admitted with CAD, Extensive AWMI, severe LV dysfunction, posted for CAG on 25.03.2015. Which revealed "Double Vessel Disease". After explaining to the patient attenders posted for PTCA + Stenting to LAD and RCA (DES) on 27.03.2014. Pre and post cath stay was uneventful, he is being discharged in hemodynamically stable condition.".
24. In Discharge Summary of Yashoda Hospital (Annexure 9),in the column of Chief Complaint "Chest pain and Shortness of Breath on exertion" is mentioned. In the column of Diagnosis it is mentioned "CAD - Extensive Awmi - (JAN 2014), Severe LV Dysfunction, CAG -
DVD (25.03.2014), Post PTCA + Stenting to LAD and RCA (DES) - 27.03.2014." In the column of Past History it is mentioned "Nil Significant".
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25. The complainant was initially admitted in O.P. No.1 hospital on 24.01.2014 and he had taken treatment in the O.P. No.1 hospital for 1 ½ months and thereafter he contacted Dr. G.K. Arora on 12.03.2014. The complainant has filed prescription slip of Dr. G.K. Arora which is marked as Annexure 6. Dr. Arora advised the complainant for MRI Brain and the MRI Brain was carried out by Dr. Girish Verma and Dr. Dilip Soni. MRI Brain Report has been annexed as Annexure 7. In the above document it is mentioned thus :-
"MRI BRAIN (PLAIN STUDY) Protocol Multiplanar MRI of the brain done on 0.3 Tesla machine was performed using T1 weighted gradient echo, T2 weighted fast spin echo & fast FLAIR sequences.
Observations :
Evidence of sub cortical & deep white matter T2WI hyperintense on FLAIR sequence, hypo-isointense on T1W1 at bilateral frontal lobe.
No other area of altered signal intensity is seen in the cerebral parenchyma, brainstem and cerebellum.
Ventricles are normal in size and morphology. The sulci and cisterns are unremarkable. No significant shift of midline structures is seen.
Intracranial vessels and dural sinuses display the expected flow void.
The craiovertebral junction is unremarkable.
Conclusion :
Lacunar ischaemic area in bilateral subcortial & deep frontal lobe white matter."
26. In MRI Brain Report (Annexure 7) it is specifically mentioned that Lacunar ischaemic area in bilateral subcortical & deep frontal lobe // 21 // white matter is present. The MRI Report dated 27.01.2014 given by Dr. Nibedita Nayak Kolhe, Consultant Radiologist is not contrary to the report given by Dr. Girish Verma and Dr. Dilip Soni.
27. The complainant has filed literature on High Blood Pressure and Stroke obtained through internet in which it is mentioned thus :-
"High Blood Pressure and Stroke A stroke, sometimes called a "brain attack," occurs when blood flow to an area in the brain is cut off. As a result, the brain cells deprived of the oxygen and glucose needed to survive, die. If not caught early, permanent brain damage can result.
Uncontrolled high blood pressure increases a person's stroke risk by four to six times. Over time, hypertension leads to atherosclerosis and hardening of the large arteries. This, in turn, can lead to blockage of small blood vessels in the brain. High blood pressure can also lead to weakening of the blood vessels in the brain causing them to balloon and burst....
Signs of stroke If you experience any of the following signs you or a loved one are having stroke, call 911 immediately.
Sudden dizziness or headache with nausea and vomiting. Blood supply : The thalasum derives its blood supply from a number of arterires; the polar artery )posterior communicating artery) paramedian thalamic - subthalamic ateries, inferolatreal // 22 // (thalamogeniculate) arterires, and posterior (medical and lateral) choroidal arteries.
The thalamus is a small structure within the brain located just above the brain stem between the cerebral cortex and the midbrain and has extensive nerve connections to both. The main function of the thalamus is to relay motor and sensory signals to the cerebral cortex. A thalamic stroke occurs when a blood vessel inside a structure in the lower part of your brain known as the thalamus suddenly ruptures. This causes bleeding that seeps into other parts of your brain, damaging cells.
Anatomy : The thalamus is located in the forebrain superior to the midbrain, near the center of the brain, with nerve fibers projecting out to the cerebral cortex in all directions. The brain is made of three main parts; the forebrain, midbrain and hindbrain. The forebrain consists of the cerebrum, thalamus, and hypothalamus (part of the limbic system). The midbrain consists of the tectum and tegmentum... Often the midbrain, pon, and medulla are referred to together as the brainstem."
28. The complainant has filed literature on Coronary Artery Disease obtained through internet in which it is mentioned thus :-
"Introduction :
Coronary artery disease is the narrowing or blockage of the artery or arteries supplying blood to the heart muscle. This narrowing is caused by plaques, which are cholesterol deposit on the vessel wall, resulting in abnormal and gradual thickening of the lining of the heart arteries (a condition known as atherosclerosis). The narrowing usually develops slowly over many years.
Causes :
// 23 // Patients who smoke, or have conditions such as diabetes mellitus, hypertension and high blood cholesterol or fat levels are prone to developing coronary artery disease."
29. The complainant has not filed any affidavit of the treating doctor of Yashoda Hospital, Hyderabad (O.P. No.3). The complainant has also not filed any questionnaire to cross-examine Dr. N.S. Dixit and Dr. Mukesh Chandrakar, who filed their affidavits in favour of the O.P. No.1 & O.P. No.2. The complainant did not send questionnaire to treating Doctors of the Yashoda Hospital to prove the medical negligence on the part of the O.P. No.1 & O.P. No.2. Even the complainant has not obtained medical opinion from the Medical Board.
30. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the // 24 // 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 : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
31. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, // 25 // is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially 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.
// 26 // III. The medical professional 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 is 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 // 27 // 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 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."
32. In Dr. Sanjay Gadekar Suprathet Hospital and Surgical Research Institute Ltd. Vs. Sangamitra @ Sandhya Khobragade, 2016 (3) CPR 270 (NC), Hon'ble National Commission has observed thus :-
"11 In this context we place reliance upon few judgments of Hon'ble Supreme Court. In Jacob Mathews Case (2005) 6 SCC 1, it was observed by Hon'ble Supreme Court as :
// 28 // "When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, the Hon'ble Supreme Court held that :
"in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. 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."
The Hon'ble Supreme Court in the case Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others (2010) 3 SCC 480; the bench comprising Hon'ble Justices Dalveer Bhandari and H.S. Bedi while dismissing the complaint held that :
"Consumer Protection Act, (CPA) should not be a "halter round the neck" of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death."
... ... ... xxxxx......
// 29 // It further observed as, "It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish."
25. In Hucks v. Cole & Anr (1968) 118 New LJ 469, Lord Denning speaking for the Court, observed as under :
"a medical practitioner was not to be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field."
33. The complainant has not filed any material to prove that treating Doctor of the O.P. No.1 hosptial Dr. N.S. Dixit is not expert or competent in his field. The onus of proving alleged negligence in treatment of patient lies with person, who alleged medical negligence. In the instant case, the complainant has not filed any material evidence to prove that the O.P. No.1 & O.P. No.2 have committed medical negligence while treating the complainant.
34. In the instant case, the complainant has not filed any documents to prove that diagnosis done by the treating Doctor, Dr. N.S. Dixit was wrong or wrong treatment was given by him to the complainant.
// 30 // If any problem was occurred to the complainant due to treatment given by Dr. N.S. Dixit, then the same could have been definitely stated by him to Yashoda Hospital, when he was admitted in the O.P. No.3 Hospital and the same could have been certainly mentioned in the column of past history, but in the Discharge Summary issued by Yashoda Hospital (O.P. No.3), in the column of Past History, it is mentioned "Nil Significant". It shows that at the time of admission in Yashoda Hospital (O.P. No.3),, the condition of the complainant was good and complainant suppressed regarding his habit of consuming tobacco and alcohol, to the O.P. No.3. The complainant could not prove any ingredients of medical negligence and he is utterly failed to prove that treating doctor of the O.P. No.1 hospital and the O.P. No.2 have committed medical negligence while treating him, therefore, the complainant, is not entitled to get any compensation from the O.P.No.1 & O.P.No.2.
35. Therefore, the complaint filed by the complainant against OPs, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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