State Consumer Disputes Redressal Commission
Jatinderpal Singh vs Escorts Heart & Super Speciality ... on 16 February, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.764 of 2013
Date of Institution: 15.07.2013
Order reserved on:14.02.2017
Date of Decision : 16.02.2017
Jatinderpal Singh s/o Late S. Prithivipal Singh, R/o 249-A,
Hussainpura, Amritsar.
.....Appellant/complainant
Versus
1. Escorts Heart & Super Speciality Institute Ltd., Majitha Verka
Bye Pass Road, Amritsar; through its Chairman/Managing
Director/Principal.
2. Dr. H.P. Singh C/o Escorts Heart & Super Speciality Institute
Ltd., Majitha Verka Bye Pass Road, Amritsar.
.....Respondents/opposite parties
Appeal against order dated 30.05.2013
passed by the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Sh. Jasbir Singh Gill, Member Present:-
For the appellant : Sh. Updip Singh, Advocate
For the respondents : Sh. Jatinder Nagpal, Advocate
............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant has directed this appeal against order dated 30.05.2013 of District Consumer Disputes Redressal Forum Amritsar (in short the 'District Forum'), vide which, the complaint filed by the appellant as complainant U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs now respondents in this appeal was dismissed.First Appeal No.764 of 2013 2
2. The short facts of the case of the complainant are that Sh. Prithvipal Singh father of the complainant became unconscious on 11.04.2007 and was taken to the hospital of OP no.1, where he was admitted by OP no.2. He was diagnosed as suffering from the disease of Meningitis. OP no.2 is known invasive cardiologist and hence started giving the treatment to his father without advising any special investigation for finding the cause of his unconsciousness. On 12.04.2007, CT scan of the head of the patient was advised, which was conducted at OP no.1 hospital and diagnosed as certain infarcts in the brain. OP no.2 advised the complainant that there were certain clots in the brain of patient and the same would be dissolved with the medicines observation and he would be discharged thereafter in 2-3 days. The patient was admitted to ICU and he properly responded to it. On 13.04.2007, patient was shifted out of the ICU and when mother of the complainant went to meet her husband, she did not find him thereat. OP no.1 was contacted, who ordered to shift the patient in recovery room and ultimately again in the ICU. The condition of the patient started deteriorating and he was heading towards multi-organ failure due to hospital infection. OP no.2 continued the treatment being invasive cardiologist. On 15.04.2007, OP no.2 advised MRI of the patient and the said test has been conducted at Advanced Diagnostic, Amritsar. OP no.1 represented itself to be multispeciality hospital and they did not provide indoor MRI to the patient and he was taken into ambulance without accompanying by medical officer at Majitha Road, Amritsar for this purpose. The ambulance carrying the patient had to wait for First Appeal No.764 of 2013 3 doctor near Gurudwara Sahib, Majitha Road, Amritsar and doctor came after long wait and patient was stranded in the ambulance on roadside in the scorching heat. When they reached the Advanced Diagnostic, Amritsar for MRI, the patient had to wait for a long time for his turn, as prior appointment was not taken by the OPs in that regard. The MRI finding revealed Meningitis and many infarcts in the brain of the patient. The patient was put on ventilator system by OPs and OP no.2 assured for his recovery soon. On 01.05.2007, the complainant became panicky and called Dr. Prabhjeet Singh, the neurologist to look after him. The said doctor examined the patient and showed his helplessness as Meningitis and infarcts could have been set right, if treated timely. The patient was afflicted with hospital infection and treatment called for by the specialist in the field has been delayed. Dr. Prabhjeet Singh was requested to keep visiting and giving his consultation till hospitalization of the patient. On the advice of said consultant, the patient was to put up for MRI again and he was taken to Advanced Diagnostic, Amritsar on 05.05.2007, where the amount of Rs.7500/- was charged for conducting the said test on him. The payment for said investigation has already been made to OP no.1 by the complainant. The accompanying medical officer failed to deposit the same with Advanced Diagnostic centre and complainant had to deposit the same. The patient got no response from the treatment of OP no.2 and OP no.2 continued the treatment. The patient died on 12.05.2007 and OP no.2 advised the complainant to deposit Rs.20,000/- for releasing the body of the patient, which was alleged to be refunded to him being excess First Appeal No.764 of 2013 4 amount. The complainant asked for settlement of account to OPs and it came out as Rs.40,125/-, besides Rs.7500/- paid by the complainant to Advances Diagnostic Amritsar. The OPs did not refund the said amount to the complainant till date. The act of OPs has been alleged to be unethical forcing the complainant to pay unjustified amount and further to deposit the amount to release the mortal remains of the patient. The complainant, thus, prayed that OPs be directed to refund the amount of Rs.6,30,000/- taken for the alleged treatment of his father, besides Rs.7500/- paid by the complainant for conducting the MRI at Advances Diagnostic Amritsar with interest; to further pay Rs.10 lakhs as compensation for medical negligence; and to pay adequate cost of the present litigation as well.
3. Upon notice, OP no.1 filed written reply and raised preliminary objections that complaint is baseless and unwarranted. The patient Prithvipal Singh was of 74 years of age, when he was admitted in the hospital on 11.04.2007 in an unconscious state. The matter was investigated in detail and nothing wrong was found in the treatment of the patient. OP no.1 is premier institute in North India and patient in bad shape was admitted in that institute. The patient had earlier history of post polio paralysis. He was hypertensive for the last 20 years and also was T-2 diabetic. He had CAD and post PTCA 2003 had stunt to RCA/LCX. Angioplasty of his double vessels was done in the year 2003 in OP no.1 hospital. When the patient came for checkup in 2006, his diabetes was found out of control and his blood pressure was also erratic. The patient came on First Appeal No.764 of 2013 5 wheel chair due to polio and he was unable to move. On 11.07.2007, he was brought to hospital in complete unconsciousness state. The record of hospital revealed that he was never shifted to any room throughout his treatment, as his condition was critical. He was admitted in CRRI, on second day and was shifted to HCC. All efforts were made to save his life. He was detected to be of Meningitis disorder. Meningitis is the infection and inflammation of the lining around the brain and surrounds the brain and spinal cord and sometimes the fluid surrounds the brain and spinal cord. It is life threatening infection depending on the severity of the infection organism, age of the person and his health condition. The patient was kept under expert supervision of an expert medical team. Right from day one, he was examined by Dr. A.K. Dutta and from day two i.e. 12.04.2007, both Dr. A.K. Dutta and Dr. Prabhjeet Singh had been examining the patient and he was from day one under their treatment. His health condition was bad due to his age and due to Meningitis problem and he was heading towards multi-organ failure. Many specialists Dr. Anil Puri, Dr. Rominder Kaur, Dr. Rakesh Bharti, Dr. A.K. Bhandari and Dr. P.S. Mokha had been attending the patient. The patient was admitted under Dr. H.P. Singh, but his treatment from day one had been under expert team of neurologists and other specialists of other fields, as the patient was heading towards multi-organ failure due to Meningitis problem. On merits, it was averred that there was no negligent treatment, as alleged in the complaint. It was vehemently denied that he was shifted to any other room. It was vehemently denied that patient caught infection in the First Appeal No.764 of 2013 6 hospital. OP no.2 advised another MRI at the instance of team of specialists to assess the deteriorating condition of the patient. The ambulance, in which the patient was sent is mobile ICU, fully air conditioned and also with a doctor and a nurse. The patient was under treatment of above said specialist doctors in their field. The patient was on all life support system at the time of death. The bill for treatment of the patient was around Rs.20,000/- for one day. All the life support system were to be removed and the body had to be cleaned and packed and dead body of the patient was handed over to his attendant at 05:00 AM exactly in one hour and four minutes only. The attendant deposited an additional amount of Rs.20,000/-, which was an estimated one day bill. It was denied that there was refusal of handing over the mortal remains of the patient to his attendant, as alleged in the complaint. The complainant never approached OPs for refund of the amount. OP no.1 prayed for dismissal of the complaint.
4. OP no.2 filed separate written statement on the similar lines, which were pleaded by OP no.1 in its written reply. It was averred that OP no.2 is Medical Superintendent in hospital of OP no.1. He prayed for dismissal of the complaint.
5. The complainant tendered in evidence affidavits with documents Ex.C-1 to C-9 and closed the evidence. As against it, OPs tendered in evidence affidavits and documents Ex.R-1 to R-7 and closed the evidence. On conclusion of evidence and arguments, the District Forum dismissed the complaint of the complainant. First Appeal No.764 of 2013 7 Dissatisfied with the above order, the complainant now appellant has preferred this appeal against the same.
6. We have heard the learned counsel for the parties and have also examined the record of the case. The appellant has assailed the order of the District Forum as erroneous in this appeal. The counsel for the respondent in this appeal supported the findings of the District Forum recorded in this case. The first ground projected by the counsel for the appellant in attacking the order of the District Forum is that OP no.1 charged Rs.20,000/- for releasing the mortal remains of patient. The submission raised is that there was no need of depositing the additional amount of Rs.20,000/- for releasing the dead body of the patient. After death of patient, attendants are not in a position to deposit the amount voluntarily. On the instance of OPs, the amount has been deposited and charging the amount at the time of death of patient is gross deficiency in service. This point has been highlighted by the counsel for the appellant in the appeal. We have examined the record of the case. Other than the bald statement of the complainant, there is no credible evidence on the record that this amount was extracted under compulsion from the complainant. The record of the hospital has been brought to our notice. The account statement is also on the record. The net amount payable is also recorded in it and the amount alongwith VAT is also shown in it. The amount paid in cash is also recorded in it. The amount of Rs.20,000/- was paid in cash on 12.05.2007. This amount has been shown in the credit bill of the complainant by the OPs. Once the amount has been shown in credit bill and there is nothing on the First Appeal No.764 of 2013 8 record to establish this fact that complainant approached OPs for refund of the amount and OPs declined to release this amount to the complainant. Consequently, the matter pertaining to settlement of account cannot be said to be gross deficiency in service on the part of the OPs in our view. Once, the amount has been shown into the credit bill of the complainant, as paid by him to the extent of Rs.20,000/-, then there is no question of any deficiency in service in our view of this matter on the part of OPs.
7. The next point canvassed by counsel for the appellant before us is that the complainant paid the amount for MRI of patient to OPs, but OPs had not released amount to the Advanced Diagnostic Centre, where the MRI was carried out of the patient. The amount of Rs.7500/- was, thus, to be paid by the complainant from his own pocket, despite the fact that this amount should have been paid by the OPs to Diagnostic Centre. This amount has been shown in the credit bill of the complainant, which was paid in excess and the credit bill amount is due for payment to complainant and as such it cannot be said that this amount was charged and pocketed by the OPs from the complainant. Once the amount has been shown in the credit bill account of complainant, the vitality of the force of submission of the complainant loses its sting.
8. The next submission of the complainant is that OP no.2 himself treated the patient, despite the fact that he is invasive cardiologist and was not a qualified specialist for treating the neurological problems of the patient. Much emphasis has been laid on this point by the counsel for the appellant during arguments of First Appeal No.764 of 2013 9 this appeal. Counsel for the respondent of this appeal argued that the services of the specialist doctors were availed as consultants and they had been attending on the patient and hence the submission of the appellant is without force that OP no.2 treated the patient without the assistance of any specialized doctors. On this point, our attention has been invited to the treatment record of the patient and record of OP no.1 hospital. We find that services of Dr. A.K. Dutta, Dr. Prabhjeet Singh, Dr. Anil Puri, Dr. Rominder Kaur, Dr. Rakesh Bharti, Dr. A.K. Bhandari and Dr. P.S. Mokha were requisitioned in this case and they were super specialist doctors in their respective fields. The complete hospital record produced on the file has corroborated this point that above specialist doctors attended on the patient. Dr. A.K. Dutta filed his affidavit Ex.R-6 and Dr. Prabhjeet Singh filed his affidavit Ex.R-7 on the record to substantiate it. Affidavit of OP no.2 is Ex.R-2 to substantiate this point that the services of the consultants were obtained in the matter of neurology, chest disease and nephrology to attend on the patient. We find that submission of the appellant is without any substance on the record that Dr. H.P. Singh OP no.2 treated the patient himself without assistance of any other specialist doctor. Affidavit Ex.R-6 and R-7 of specialist doctors may also be referred to in this regard to fortify this point. The contention of the appellant has rightly been discarded by the District Forum on this point. Generally, the super speciality doctors are available at the beck and call of super speciality hospitals.
First Appeal No.764 of 2013 10
9. The next argument of appellant is that patient caught septicemia in the hospital and his condition deteriorated therewith. The appellant attributed the infection due to carelessness of the OPs, which resulted into death of the patient. There is bald statement of complainant on the record only, which is not supported by any other evidence on the record. On the other hand, the OPs have categorically denied this averment of the complainant regarding catching the infection by the patient at the hospital of OP no.1. We are unable to rely upon the sole statement of the complainant, when he is not an expert person in these fields.
10. The next submission of the appellant is that blood urea of the patient started shooting up indicating the onset of renal dysfunction from 12.04.2007. Nephrologist was not called to look him by OPs, as there was no nephrologist available in the hospital of OP no.1. Dr. P.S. Mokha, Nephrologist had been attending on the patient and keeping in view the bad health of the patient, as he was afflicted with numerous diseases and was 74 years of age and hence the body was prone to catching the diseases due to loss of immunity. Dr. P.S. Mokha attended on the patient to care for his renal dysfunction problem being superspecialist and it cannot be said that the patient went untreated by the nephrologist on the record. The treatment record and version of the OPs have clearly established this fact. Counsel for the appellant argued that culture of CSF dated 14.04.2007 showed 'no growth' showed malafide and falsehood of stand of OPs. It was further contended that treatment chart, critical flow chart and nurses chart showed that meningitis was First Appeal No.764 of 2013 11 diagnosed on 28.04.2007 in the patient. The patient was admitted on 11.04.2007 and the CSF for the first time conducted on 14.04.2007. Counsel for the appellant contended that affidavits Ex.R-6 and R-7 of doctors cannot be looked into. We have already observed that patient was a person of sick physique afflicted with various diseases being aged person. He was suffering from diabetes for the last 20 years and he was hypertensive as well. He was afflicted with CAD and other serious diseases. The body at such of age with so many diseases loses its vitality to fight with the diseases. The catching of infection by the body of the patient on account of multi organ failure cannot be said to be the medical negligence on the part of OPs. The submission of the appellant that there was no proper treatment of septicemia by OPs is again without substance. There is evidence of the OPs that antibiotics were also given to the patient, but keeping in view the general declining physique of the patient, he could not have tolerated the strong anti biotic medication.
11. The counsel for the appellant lastly contended that it is incumbent on the OPs medical professional to show that they have not acted negligently and they have to discharge the burden to prove that they have not acted negligently. We do not find any force in it. The onus is on the complainant to prove that there was any medical negligence on the part of treating doctor. The initial onus is to be discharged by the complainant. There is no expert body report in this case proving any medical negligence on the part of OPs. It is enough for the doctor to prove that the standard of care has been taken in treating the patient required from professional men generally and First Appeal No.764 of 2013 12 medical practitioners in particular. This proposition has been invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care was and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation, the person holding the 'smoking gun'.
12. Mere misjudgment or error in medical treatment by itself would not constitute negligence. No doctor would take a justifiable First Appeal No.764 of 2013 13 risk and try to save his patient from a complicated disease or in the face of an un-expected problem that confronts him during the treatment of surgery. There is nothing on the record that OPs did not exercise, with reasonable competence in the given case, the skill which he did possess. If the medical profession was hemmed by threat of action criminal and civil, the consequence will be a loss to the patients. Once the complainant makes out a prime facie case of medical negligence, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence. This observation was recorded by the Apex Court in "Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & others" 2009(3) CPR-81. The National Commission has held in "Ram Gopal Yadav Vs. Pushkar Anand (Dr.) & others" 2015(2)CLT that in case of medical negligence initial burden to prove medical negligence lies on the complainant. Mere averments in the complaint are not evidence. Our own State Commission has also held in "Chander Mohan Head Constable Vs. Preet Nursing Home and others" 2010(3)CLT-76 that medical negligence is different from deficiency in service. Strong evidence is required for proving medical negligence comparing the evidence, which is required for proving deficiency in service in other matters unconnected with the medical field. Second judgment of legal consequences was delivered by the Apex Court in "Kusum Sharma & others Vs. Batra Hospital & Medical Research Centre & others" 2010(2) CLT-282, wherein the Apex Court has issued the guidelines that the following principles must be kept in mind while First Appeal No.764 of 2013 14 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.
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 First Appeal No.764 of 2013 15 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. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and First Appeal No.764 of 2013 16 competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
There is no expert evidence produced by the complainant to prove any medical negligence on the part of OPs in this. On the other hand, the super specialist doctors treated the patient and did their best to save his life, as proved on record. The doctor cannot be blamed for the death of the patient, if it is not caused by gross medical negligence. We cannot be oblivious of this point that patient was an old person afflicted with numerous diseases, wherein the body loses the strength to fight with the diseases, which were fatal in nature. Consequently, we find no medical negligence on the part of OPs in this case. The order of the District Forum is affirmed.
13. It was submitted by the appellant that application under Section 195 IPC has not been decided by the District Forum. In view of our above discussion and perusal of the record, we do not find it expedient to start any proceedings against the OPs in this regard. Once, the relations between the parties are strained, they generally resort to such methods. Consequently, we do not find it expedient to pass any order on this application and the same stands disposed of.
14. As a corollary of our above discussion, we, thus, find no merit in the appeal and the same is hereby dismissed by affirming the order of the District Forum under challenge in this appeal.
15. Arguments in this appeal were heard on 14.02.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
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16. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J.S. GILL) MEMBER February 16, 2017 MM