State Consumer Disputes Redressal Commission
Surender Bali vs Dr. Sumita Prabhakar & Others on 30 October, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 80 / 2013
Sh. Surendra Bali S/o late Sh. Banshilal Bali
R/o Missarwala, Dehradun Road
Doiwala, Dehradun
...... Appellant / Complainant
Versus
1. Dr. Sumita Prabhakar
C/o Combined Medical Institute
54, Haridwar Road, Dehradun
2. Dr. Rameshwar Pandey
C/o Combined Medical Institute
54, Haridwar Road, Dehradun
3. Dr. Rajneesh Chauhan
C/o Combined Medical Institute
54, Haridwar Road, Dehradun
4. Sh. Prakash Chandra Joshi S/o Sh. Devi Dutt Joshi
Proprietor, Joshi Medical Store
Mata Mandir Chowk, Ajabpur Kalan
Dehradun
5. Sri Sai Ambulance Service
256/6, Doon Vihar
Jakhan, Dehradun
...... Respondents / Opposite Parties
Ms. Anupama Gautam, Learned Counsel for the Appellant
Sh. J.K. Jain and Sh. Vaibhav Jain, Learned Counsel for Respondent
Nos. 1, 3 and 4
None for Respondent Nos. 2 and 5
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. Balveer Prasad, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 30/10/2018
ORDER
(Per: Balveer Prasad, Member):
The appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred against the order dated 12.03.2013 passed by the District Consumer Disputes Redressal Forum, Dehradun 2 (hereinafter to be referred as the 'District Forum') in consumer complaint No. 78 of 2012 styled as Sh. Surendra Bali Vs. Dr. Sumita Prabhakar and others, whereby the consumer complaint was dismissed.
2. Briefly stated, the facts relevant for the disposal of the appeal, are that the complainant contacted Dr. Sumita Prabhakar at Combined Medical Institute, Dehradun on 20.04.2011 for the check-up of his wife Smt. Rajni Bali. The doctor advised for the ultrasonography test and on the basis of the report, pregnancy was detected. The other investigations - RH Antibody etc. were also got done - nothing adverse was detected - also advised for review to be done after a week. On 27.04.2011, check-up was done and thereafter Dr. Sumita Prabhakar told the complainant that the fetus is not viable and it requires medical termination of pregnancy. IVF-ET was advised. Accordingly, the pregnancy was terminated on 29.04.2011. The investigations were done in May and June, 2011 and on getting reports, Dr. Sumita Prabhakar accorded confirmation for IVF-ET and asked for arranging Rs. 1,00,000/- for the said purpose. On 27.07.2011 too, Smt. Rajni Bali faced abortion. Even after this abortion, Dr. Sumita Prabhakar assured success in IVF-ET and the required amount of Rs. 1,00,000/- (in toto) was paid on different dates falling in August, 2011.
3. On 24.08.2011, the patient was kept in operation theatre for 8 hours and on 26.08.2011, IVF-ET was done without pre-operative investigations and work-up of the patient. On ambulance, the patient was taken to her residence. On 27.08.2011, Smt. Rajni Bali complained of vomiting and abdominal pain. Dr. Sumita Prabhakar was contacted on telephone. She spoke that it is a usual phenomenon. The patient's condition worsened. On 31.08.2011 at about 6:00 p.m., 3 when Dr. Sumita Prabhakar was consulted, she prescribed two injections, i.e., Emeset and Voveran, which the patient got administered at home, but the patient's condition did not symptomatically improve.
4. On 01.09.2011, the complainant approached Combined Medical Institute, Dehradun along with his wife Smt. Rajni Bali. The patient was taken to the recovery room and the nurse attending the patient suspected gall-stones to be the likely cause of abdominal pain and vomiting and that the patient required ultrasonography for confirmation. Thereafter, Dr. J.P. Painuli, a Surgeon, was consulted and the patient was shifted to the ward. On 02.09.2011, Dr. Sumita Prabhakar prescribed some medicines, but the condition of the patient got deteriorated. On 03.09.2011 at about 8:00 a.m., the patient had breathing difficulty and raised the complaint of severe abdominal pain. She was attended by Dr. Bimal Nautiyal, who advised to shift the patient to Intensive Care Unit (ICU). Thereafter, Dr. Rameshwar Pandey too attended the patient.
5. Dr. Sumita Prabhakar and Dr. Rameshwar Pandey referred the patient to higher institution at New Delhi or Himalayan Hospital, Jolly Grant, District Dehradun. Medical ambulance was arranged and the patient was shifted to Himalayan Hospital, Jolly Grant, District Dehradun. As alleged in the consumer complaint, usual medical facilities were not available in the ambulance. The patient survived there in ICU for half an hour and thereafter expired. Dr. Anita Sharma assigned the wrong treatment to be the cause of death of the patient. The consumer complaint also makes mention of the fact that forged bills of medicines were procured from opposite party No. 4, with no supply of said medicines. The death of Smt. Rajni Bali, the wife of the complainant, is the outcome of gross medical negligence 4 committed by the doctors, for which compensation to the tune of Rs. 20,00,000/- has been claimed.
6. The opposite party No. 1 - Dr. Sumita Prabhakar resisted the claim by filing written statement (Paper No. 20A/1). It has been accepted that Smt. Rajni Bali remained under the treatment of the answering opposite party. The allegations levelled against her, were denied. It is wrong to allege that the treatment or the abortion was done without free consent of the patient or her husband. Emphasis was supplied on the point that no such medical negligence was committed by her. The complainant himself told the panel of doctors that his wife had the tendency of high blood pressure during pregnancies. On 26.08.2011, the condition of the patient was normal. When the patient complained of vomiting on the next day, she was consulted on telephone, whereupon she advised her to take Pantop-D. On 01.09.2011, when the patient was brought to Combined Medical Institute, Dehradun, her ultrasonography and other tests were got done and thereafter, on her advice, Dr. Bimal Nautiyal and Dr. J.P. Painuli were consulted.
7. The cause of abdominal pain was the presence of stone in gallbladder. Then Dr. Bimal Nautiyal got the patient shifted to ICU, where Dr. Rameshwar Pandey too examined the patient. The condition of the patient was assessed as serious, then the specialists advised for shifting the patient to higher medical institution at New Delhi or Himalayan Hospital, Jolly Grant, District Dehradun. The complainant accorded consent to the advice furnished by the doctors. The complainant also put signature on the consent form. The inquiry panel was also constituted. The inquiry report makes mention of the fact that Dr. Sumita Prabhakar and other medical officers, under whom Smt. Rajni Bali was undergoing treatment, they all are 5 qualified doctors and the treatment given was assessed, as satisfactory. The complainant also moved applications before the local police. The police authorities also directed the complainant that if he feels aggrieved by the inquiry report of the expert panel, he is at liberty to move to higher medical channels for inquiry in the matter. The senior surgeon Dr. K.K. Tamta, Dr. Shikha Janpangi and Dr. Yatendra Singh were nominated to hold the inquiry in this matter. The panel found that the treatment given to the patient, is satisfactory.
8. It was also pleaded that no expert evidence has been furnished by the complainant side, in order to prove the alleged medical negligence. The answering opposite party has earned goodwill as medical practitioner and she possesses qualification of a super specialist. She has also got wide experience in the field she opted. The complainant has moved the consumer complaint in order to have unlawful gains.
9. Opposite party Nos. 2 and 3 furnished joint written statement, denying the factum narrated in the consumer complaint. It has been urged that the allegations levelled against them are false. The matter was duly inquired into, by the panel of expert doctors and the conclusion of the panel was that no medical negligence has been committed by the doctors attending the patient. The answering opposite parties have got goodwill as medical practitioner and they are fully qualified, having wide experience in their respective field.
10. Opposite party No. 4 pleaded by way of written statement that nobody contacted him at the medical store for procuring bogus bills relating to the treatment of Smt. Rajni Bali. No cause of action ever arose against the answering opposite party and the consumer complaint instituted, is false and frivolous.
611. Opposite party No. 5 submitted the written statement, stating that on 04.09.2011, on the request of opposite party No. 1 (Doctor of Combined Medical Institute, Dehradun), the answering opposite party provided Critical Care Ambulance to the complainant on payment of charges of Rs. 9,000/-, in which the fee of Dr. Rajneesh amounting to Rs. 3,000/- was also included. The ambulance was fitted with all the required life saving equipments. The complainant and the patient were accompanied by Dr. Rajneesh of Combined Medical Institute, Dehradun, along with a medical attendant. The patient was taken to Himalayan Institute Hospital Trust, Swami Ram Nagar, P.O. Doiwala, District Dehradun on ventilator support.
12. Sh. Surendra Bali - complainant furnished affidavit (Paper No. 25A/1), wherein the averments made in the consumer complaint were reiterated. Certain prescriptions along with the expert report and other papers (52 in number) have been annexed therewith.
13. Dr. Sumita Prabhakar filed affidavit (Paper No. 26A/1), denying the allegations narrated by the complainant in the consumer complaint. It has been accepted by Dr. Sumita Prabhakar that Smt. Rajni Bali remained in her treatment. She also deposed that the complainant has not furnished any details as to the alleged medical negligence, nor the evidence or the expert-report with regard thereto. The husband of the patient told her that his wife had the tendency of high blood pressure during pregnancy-period. She was contacted on telephone on 27.08.2011 and complaint of vomiting was made, for which capsule Pantop-D was prescribed by her. On 01.09.2011, ultrasonography and other investigations of the patient were done and the cause of intense pain was diagnosed as stone in gallbladder. On 03.09.2011, when the patient was under the treatment of Dr. Bimal 7 Nautiyal and Dr. J.P. Painuli, she was shifted to ICU and Dr. Rameshwar Pandey was also consulted. These medical experts referred the patient to higher institution at New Delhi or Himalayan Institute Hospital Trust, Swami Ram Nagar, P.O. Doiwala, District Dehradun. The patient was taken to Himalayan Institute Hospital Trust, Swami Ram Nagar, P.O. Doiwala, District Dehradun by medical ambulance. Consent form was duly signed by the complainant. A panel of inquiry was also constituted and the treatment done was found, as satisfactory. Police proceedings were also set in motion against the deponent, but the Senior Superintendent of Police, Dehradun directed the complainant to move to higher medical channels if he still feels aggrieved by the inquiry-report. In para 34, it was emphasized that the deponent is the medical practitioner of good repute, having excellence in her field and she has got wide experience. No medical negligence has been committed by her. The cause of death of the patient is gallbladder stone and pancreatitis and the cause of death of the patient has no relation with IVF-ET.
14. Dr. Rameshwar Pandey and Dr. Rajneesh Chauhan submitted joint affidavit (Paper No. 27A/1), narrating all what is worded in their written statement. Sh. Prakash Chandra Joshi in his affidavit (Paper No. 28A/1), also reiterated the factum narrated in the written statement. Sh. Rakesh Bhandari deposed by way of affidavit (Paper No. 32A/1) that the medical ambulance provided to the patient was fully equipped and the functioning of equipments was checked by the relatives of the patient and the medical attendant, accompanying the patient. The opposite parties furnished copies of consent forms, investigation reports and other relevant record with regard to the treatment of the patient.
815. The District Forum, on an appreciation of the material on record, dismissed the consumer complaint, vide impugned order dated 12.03.2013, mainly on the ground that no case of medical negligence is made out against the doctors. Feeling aggrieved, the appellant - complainant has come up, projecting the appeal mainly on the grounds that the order in question is not in consonance with the available record, nor the evidence was correctly appreciated and, as such, the order passed by the District Forum is not sustainable in law.
16. Heard learned counsel for the appellant and respondent Nos. 1, 3 & 4 at length. The record of the case was also perused. During the pendency of the appeal, respondent No. 2 - Dr. Rameshwar Pandey expired and the appellant moved an application dated 05.09.2018 (Paper No. 115 on the record of appeal) for substituting the legal heirs of deceased - respondent No. 2. The substitution application was rejected by this Commission per order dated 07.09.2018. None appeared on behalf of respondent No. 5 inspite of sufficient service.
17. Learned counsel for the appellant emphasized that the complainant lost his wife on account of wrong treatment done by the doctors. It was also submitted that the District Forum has not appreciated the real worth of the evidence available on record against the medical practitioners. Nextly, it was urged that Dr. Sumita Prabhakar was issued warning by the expert panel on the same issue and lastly, it was submitted that the order passed by the District Forum is bad in law and the complainant is entitled to the relief claimed in the consumer complaint. The medical literature as to the nexus between acute pancreatitis and pregnancy was also placed before us. Learned counsel for the appellant further placed reliance on the law laid down by the Hon'ble High Court of Delhi in Pravin 9 Kumar Bhatia Vs. M. Ghosh; 1989 AIR (Delhi) 274, wherein it was postulated that "the insurance company was neither the necessary nor proper party because any finding in the suit will not affect it because it was not a party to the suit". We agree to the aforesaid legal position.
18. Learned counsel for respondent Nos. 1, 3 and 4 focused our attention on the point that the medical practitioners attending the patient under reference, were all competent, highly qualified and known expert in the field to which they belong. Whatever medical steps were taken, they all were done with the free consent of the complainant and his wife. Emphasis was also supplied on the point that utmost care was taken by Dr. Sumita Prabhakar with regard to IVF-ET. It was also argued that the death of the patient was caused due to acute pancreatitis with shock with LVF, which has nothing to do with IVF-ET. It was further submitted that the consumer complaint is the outcome of malafide and ill-will on the part of the complainant, designed to blackmail the doctors. It was also pointed out that no expert evidence was furnished, nor the averments of counter affidavit were replied by the complainant. With these submissions, it was narrated that the order passed by the District Forum is legally perfect, requiring no interference. Learned counsel placed reliance on the decision given in the case of Ajay Khandel and another Vs. Prakash Nursing Home and another; (2017) 4 CPR (NC) 552, wherein the Hon'ble National Consumer Disputes Redressal Commission, New Delhi relied on the law propounded by the Hon'ble Apex Court in the case of Jacob Mathew (Dr.) Vs. State of Punjab and another; 2005 (6) SCC 1 = III (2005) CPJ 9 (SC), quoted thereunder:
"When a patient dies or suffers from some mishap, there is a tendency to blame the doctor for this. Things have gone wrong 10 and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say or 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."
19. We have given our thoughtful consideration to the arguments advanced before us and examined the entire material on record.
20. In order to appreciate the issue involved, it is necessary to throw light on the factual matrix of the case. The dynamics of the case reveals that the complainant has relied on the report of the expert panel, presided over by Dr. K.K. Tamta, wherein it is worded that the complainant disclosed that his first issue came on this earth in the year 1996 by way of normal delivery, but the baby could survive only for one day. Next time, in March, 1997, Smt. Rajni Bali faced abortion after four months' of pregnancy. Third time, in the year 1999, Smt. Rajni Bali was blessed with a daughter, making the family happy. The fourth and fifth time, Smt. Rajni Bali faced bad luck - being I.U.D. The sixth time, abortion took place after three months' of pregnancy and thereafter Smt. Rajni Bali gave birth to a son in the year 2010, but unfortunately, the baby survived only for three days'. As disclosed by the complainant, there was tendency of high blood pressure of his wife during pregnancies. It also transpires from the record that at the age of 42 years', the wife of the complainant wanted pregnancy. Blockage of one tube and low ANH was the reason for suggesting IVF-ET. The report of the expert panel also envisages that acute infection in pancreas was detected and the treatment for cholecystitis with cholecystolithiasis pancreatitis was done by the competent doctors. The treatment of the patient was rated as satisfactory by the experts.
1121. It would be pertinent to go through the landmark judgments on the subject "medical negligence". The Hon'ble Apex Court postulated well celebrated dictum of law in Jacob Mathew (Dr.) (supra), as under:
"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, 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..................
A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. 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 of the yardstick for 12 judging the performance of the professional proceeded against on indictment of negligence.
............ All that we are doing is to emphasize the need for care and caution in the interest of society: for, the service which the medical profession renders to human beings is probably the noblest of all and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many complainant prefer recourse to criminal process as a tool of pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against."
22. In Martin F. D'Souza Vs. Mohd. Ishfaq; (2009) 3 SCC 1 = I (2009) CPJ 32 (SC), the Hon'ble Supreme Court of India laid down:
"Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur - No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient.
............ The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care, they will not be held liable even if their treatment was unsuccessful."
23. The perusal of the record also reveals that the report of Ethics Committee, Uttarakhand Medical Council, Dehradun, has also been relied on by the appellant and the same is Paper No. 85, filed in appeal. The report makes it clear that Smt. Rajni Bali had bad obstetric history with multiple IUD's, abortions and high blood 13 pressure during pregnancies. It was also noticed that Smt. Rajni Bali had high risk case. The couple had a daughter aged about 13 years', but still they wanted one more issue and for that purpose, they furnished consent in writing for IVF-ET. On being investigated, the case was found to be fit for IVF-ET and the same was done. Thereafter, she was diagnosed having infection and stone in gallbladder and acute pancreatitis, which has no nexus with IVF-ET. Report envisages that usually medicines are prescribed on telephone by medical practitioners without proper check-up of the patient, which should not be done. It was also pointed that if the patient was in need of medical help, the complainant should have brought the patient to the hospital, instead of contacting the doctor on telephone and in this way, the patient's outcome could have been better. On these remarks, warning was issued to Dr. Sumita Prabhakar.
24. It is worth to observe that Dr. Sumita Prabhakar was in full know of the fact that the patient had bad obstetric history with multiple IUD's, abortions and high blood pressure during pregnancies. The doctor attended the telephone of the complainant and prescribed capsule Pantop-D for patient's welfare. This state of affairs reflects utmost care, good gesture and sincerity on the part of the doctor towards the patient for meeting the emergent situation. This Commission is conscious of the law laid down by the Hon'ble Apex Court in Martin F. D'Souza (supra), wherein it was postulated that "no prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided". In the aforesaid circumstances, the verdict of Ethics Committee in issuing warning to Dr. Sumita Prabhakar is unwarranted and uncalled for, especially when the Committee finally reached the conclusion that the cause of death (acute pancreatitis with shock 14 with LVF) of the patient had no nexus with IVF-ET. In view of this, the warning issued by the Ethics Committee to Dr. Sumita Prabhakar is hereby expunged.
25. Allegations have been levelled with regard to ambulance facilities and procurement of bogus bills of medicines. The averments of counter affidavits given by opposite parties have not been controverted by filing rejoinder affidavit. On this point, law came out with all its brilliance in Bux Singh Vs. Joint Director of Consolidations, U.P., Lucknow; AIR 1966 Allahabad 156, in which it was held that where the averments raised in counter affidavit were not controverted by filing rejoinder affidavit by the petitioner, averments made in the counter affidavit must be accepted as true and correct. This ruling applies with full force, to the present case.
26. It is also worth to signify that, as revealed from the record, the qualification of Dr. Sumita Prabhakar is M.B.B.S., M.D. (Obs. & Gynae.), M.R.C.O.G. (London) FICMCH (Obstetrician & Gynecologist). She has got super-specialization in the field opted by her. Other opposite party Nos. 2 and 3 too, are well qualified doctors, having wide experience and expertise in their respective subject. The panel of medical experts presided over by Dr. K.K. Tamta, Joint Director has rated the treatment given by medical practitioners in the present case as satisfactory. No expert evidence has been produced in order to establish the alleged medical negligence. Dr. Anita Sharma furnished no prescription, nor filed any affidavit to support the alleged version put forward by the appellant - complainant.
27. It transpires from record that Dr. Sumita Prabhakar had to file Criminal Writ Petition No. 1189 of 2012; Dr. Sumita Prabhakar Vs. 15 State of Uttarakhand and others, before the Hon'ble High Court of Uttarakhand at Nainital, in which the Hon'ble Court observed that the team of medical officers inquired the incident and stated that the medical officer (petitioner) was a qualified person and she gave satisfactory treatment to the patient and the arrest of the petitioner during investigation was accordingly, ordered to be stayed.
28. We have gone through the medical literature on "Acute Pancreatitis and Pregnancy" furnished on behalf of the appellant - complainant. We find that the same is of no help for the complainant, as the cause of death of the patient was acute pancreatitis and stone in gallbladder, which has no relation with IVF-ET.
29. In view of the aforesaid discussion, we are convinced to hold that the findings arrived at by the District Forum, deserve to be confirmed. No case of medical negligence is made out. Accordingly, the appeal deserves to be dismissed. All the arguments stand answered accordingly.
30. Appeal is dismissed, with no order as to costs.
(MRS. VEENA SHARMA) (BALVEER PRASAD) (JUSTICE B.S. VERMA) K