State Consumer Disputes Redressal Commission
Sameera Khan vs Dr. D.M. Mahajan on 27 October, 2021
IN THE STATE COMMISSION: DELHI
(Constituted under section 9 of the Consumer Protection Act, 1986)
Date of Hearing:29.09.2021
Date of Decision:27.10.2021
First Appeal No. 652/2013
IN THE MATTER OF
SAMEERA KHAN
D/o Late Maqsood Ali
R/o Turkmanpur, Gorakhpur,
U.P. ....Appellant
VERSUS
DR. D.M. MAHAJAN
S. K. I. N. Rejuvenation
A-24, Hauz Khas, New Delhi .....Respondent
HON'BLE SMT. JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, MEMBER
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
Present: Ms. Sweta Kapoor, appointed as amicus for the complainant/appellant
Ms. Sameera Khan, Complainant/appellant in person
Sh. Sandeep Kapoor, Counsel for the respondents
PER: ANIL SRIVASTAVA, MEMBER
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JUDGEMENT
1. The orders dated 04.05.2013 passed by the Consumer Disputes Redressal Forum-II in CC-214/2009 in the matter of Sameera Khan versus Dr. D.M. Mahajan, S.K.I.N. Rajuvenation, dismissing the complaint, the complainant having failed to discharge the onus of proof of medical negligence, as alleged, on the part of the OPs/respondents, have been assailed by way of appeal before this Commission under Section 15 of the Consumer Protection Act 1986, the Act, by Ms. Sameera Khan, for short appellant, alleging that the District Forum has passed the impugned order, ignoring the facts and the settled principles of law and praying for setting aside the order so passed and for the relief claimed in the forum.
2. Facts of the case necessary for the adjudication of the appeal are these.
3. The appellant a young girl of 22 years was having burn spots on her chin visited the Apollo Hospital, New Delhi on 12.09.2008. After examination of the scars of the appellant on her chin the respondents advised laser surgery with an assurance that the scars would completely go and induced the appellant to come to his private clinic at A-24, Hauz Khas, New Delhi. He also stated that the surgery would be over in two hours where after she can go to her native place. Consequently the appellant visited the private clinic of the respondent on 27.11.2008 who asked the appellant to pay a sum of Rs. 25,000/- which amount was deposited and thereafter she was taken for surgery. Laser surgery was done and after surgery the appellant was discharged. At the time of discharge the appellant was assured by the respondent that scars/burn spots on her chin have been successfully removed and now the face of the appellant would be clear.
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4. The appellant left for Lucknow soon thereafter 28.11.2008. However on reaching Lucknow, the appellant felt itching and gradual changes upon her face in the form of reaction of the said laser surgery resulting in formation of pus, chronic infection and unbearable pain on the face of the appellant though she had followed the instructions as given by the respondent at the time of discharge. The said itching and other changes continued on the face of the appellant and within two days of the surgery by the respondent the entire face of the appellant became horrible and ugly. Appellant left with no option returned to Delhi and approached the respondent requesting them to look into the situation. The respondent however instead of looking the problem threatened the appellant not to raise the voice and was thrown out of the clinic of the respondent.
5. A complaint was later registered with the Police Authorities but there also nothing concrete happened except to the extent that the money deposited with the OPs/respondents for the purpose of treatment was returned with the assurance that they would help the complainant to get the treatment from Safdarjung Hospital, New Delhi but that was not to be. In these circumstances a complaint was filed before the District Forum under the provisions of the Consumer Protection Act 1986 which complaint was dismissed. This led to filing of an appeal before this Commission on the grounds that the District Forum failed to appreciate that the respondent admitted having treated the appellant, he admitted having paid money for medicine and alleged refund of the cost of treatment, he admitted having himself taken the appellant to the Safdarjung Hospital. All these facts speak volumes about the fact that the respondent had realised his negligence and in order to cover up the 3 same he refunded the money received and also accompanied the appellant to a Government Hospital so that he could ensure that the appellant is not communicated the fact by the other doctor at the hospital about the negligence of the respondent. Secondly the forum failed to appreciate that there was no improvement in the appellant's condition following the laser surgery and as is clear from the records, following the laser surgery severe complications developed and her whole face got destroyed and became ugly permanently and the appellant had to undergo torture and mental agony of other surgeries and also continued treatment with no relief.
6. Respondents were noticed and in response thereto their counsel made a statement as is evident from the proceedings dated 13.05.2014 that they do not with to file the reply to the appeal.
7. This matter was listed before this Commission for final hearing on 29.09.2021 when the counsel for both sides appeared and advanced their arguments, the appellant for setting aside the order impugned here and for the relief claimed before the District Forum while the respondents have argued relying on the expert opinion from the Safdarjung Hospital that there was no negligence on the part of the respondents and prayed for dismissal of the appeal.
8. Short question for adjudication in this appeal is whether there exists any infirmity in the orders passed by the District Forum. This leads to another question whether the negligence on the part of the treating doctor as alleged is substantiated. For this purpose we would advert to the orders passed by the District Forum dismissing the complaint. The relevant extract of the order are as under:- 4
In view of the above, we are of the opinion that the complainant has failed to prove any medical negligence/deficiency in service on the part of the OP. It is not disputed that OP is not a qualified doctor to undertake such surgery. But the complainant has not shown anything to us that what the doctor did was not followed by large number of professionals in that line. She has also not brought any literature or contrary medical expert opinion from any other hospital. The reliance placed on the material produced by the complainant, as discussed above, does not help the case of the complainant.
For the reasons discussed above, we do not find any merit in the case as the complainant has failed to discharge the onus of proof of medical negligence on the part of OP. So, we are constrained to dismiss her complaint. However, both the parties shall bear their respective cost of litigation.
9. Now we may advert to the expert opinion in respect of the appellant/complaint. The opinion is reproduced below:-
"GOVERNMENT OF INDIA"
Medical Record Department & Training Center Safdarjung Hospital, New Delhi-110029 No. 2-22/09-MR E-1648-M/R Medical Report in respect of Sameera Khan The patient was reviewed alongwith the passport size Photographs. As per history given by the patient she went for laser surgery for a post burn scar on the chin. No record of the actual physical procedure done by laser is available. The board member examined the patient and found extensive post burn scarring on the lower face (mild on the forehead), neck, entire chest including breast with pulling up of the left nipple, upper abdomen, axilla, upper back and flexor surface of the forearm. Scars are hyperpigmented, dyschromic and occasional foci of loss of normal pigment. In all these areas the normal skin texture is destroyed. Donor site shows mild hypertrophic scarring. Both external ears are destroyed. Scalp and hairs are preserved.
Laser surgery is a known indication for scar reduction, to improve the quality of the scar. Secondly infection is a complication in any 5 surgical procedure. Hence surgery done only on the chin as stated with ablation of both the ears. The photographs produced by the patient do not clearly depict the extent and quality of scars prior to laser surgery.
10. Medical negligence is a complicated subject and the liability of a doctor depends upon the facts and circumstances brought on record. There may be cases of apparent deficiency/negligence in service by the doctors. Such cases of negligence can be broadly categorised as under:
a. The doctor does not give immediate treatment when required. b. The doctor does not take precaution as per the medical jurisprudence of giving the test dose of medicines which are likely to be fatal in some cases or may cause allergy. c. The post-operative treatment is not given properly. d. The surgical wound is caused at a different place than required. e. After operation, septicaemia or gangrene takes place. f. Improper prescription of drugs. In case of fever, without knowing the cause of fever, combination of tablets and injections for malaria, typhoid, etc are freely used on trial and error basis. g. Medical instruments are left in the body.
h. Mal-practice by the doctors, such as uncalled for pathological reports or investigations prescribed.
11. Further, there may be allegations that in some cases where the surgery is not required, but the same is carried out, there is no pre-anaesthetic chek-up; delay in performing surgeries, there are certain instances of death on table; there are cases of hospital acquired infection which are not known to the consumers; some of the emergency cases not dealt with by the doctors promptly; transfusing wrong blood; performing a criminal abortion. In such cases, medical negligence being apparent medical practitioners would be liable to pay compensation or damages to the victim. Finally, what is expected from the medical practitioner is to take due care and caution while giving treatment as per the established medical jurisprudence. In 6 other words, if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art, no question of deficiency would arise.
12. It is trite law that in the matter of negligence as is the case, the only point of consideration would be to examine if the treating doctor was sufficiently qualified to administer the treatment and, secondly, when the doctor was sufficiently competent whether while administering the treatment he has observed due and necessary and precaution and thirdly whether timely steps for treating the patient were taken. On these accounts the OP Hospital, keeping in view the facts and circumstances cannot be faulted with since in the given case as per records immediate course of action was taken by the OP Hospital and if that be the case one cannot allege and establish mala fide in which case, the allegation of the negligence cannot be substantiated.
13. The Hon'ble Apex Court in the matter of Kusum Sharma versus Batra Hospital as reported in (2010) 3 SCC 480, was pleased to hold in para 89 as under:
"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the 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.7
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise 4 (1968) 118 New LJ 469 5 (supra) 8 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 standard so far reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. 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 unnecessarily harassed or humiliated so that they can perform their professional duties without fear and 9 apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
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14. We may at this stage refer to a decision in the case of Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr. reported in (1998) 4 SCC 39. Their Lordships observed as follows:
"Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."
15. Having analysed the significance or otherwise of the case law on the subject, we may now deliberate whether in the whole process the allegation of medical negligence as against the OPs can withstand the test of scrutiny, as alleged. Negligence per se is defined in Black's Law Dictionary as under:
"Negligence per-se : conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.
According to Hulsbury's Law of England Ed. 4 Vol. 26 pages 17-18, the definition of Negligence is as under:
"22. Negligence : Duties owed to patient. A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical 9 practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case: a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient.
16. The National Commission in the case of 1 (1999) CPJ 13 (NC) titled Calcutta Medicare Research Institute versus Bimalesh Chatterjee and ors ruled that "the onus of proving medical negligence and resultant deficiency in service was clearly on the complainant which in the given case remains unsubstantiated.
17. Coming back to the facts of the case, the Op-1 and Op-2 had done the treatment without any delay. The doctors attending the complainant was qualified to impart the treatment and prompt in providing treatment. It is not the case of the complainant that an unqualified doctor did the treatment. This is also not the allegation that there was delay in the matter. This is not the case of the complainant that required protocol was not followed by the treating doctors. Shorn of superfluities the only objection or allegation of the complainant is that the pacemaker when not needed was implanted. But this has to be decided or determined by the treating doctor. They otherwise competent to do the treatment being specialist in the field had deliberated to do so. There appears to be nothing wrong or irregular in the process.
18. Having regard to the discussion done and legal position explained we are of the considered view that the negligence as alleged against the treating doctor or OP hospital could not be substantiated and thus the appeal is liable to be dismissed. Accordingly the orders passed by the District Forum are upheld. 10
19. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information. File be consigned to records.
(Dr. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER PRONOUNCED ON 27.10.2021 sl 11