State Consumer Disputes Redressal Commission
Guru Angad Dev Mission Hospital Khadoor ... vs Lakhwinder Kaur on 30 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
1. First Appeal No.375 of 2012
Date of institution : 28.03.2012
Date of decision : 30.01.2015
1. Guru Angad Dev Mission Hospital, Khadoor Sahib, Tehsil
Khadoor Sahib, District Tarn Taran through its General
Secretary, Balwinder Singh.
2. Jasbir Singh son of Master Puran Singh, Chairman, Guru
Angad Dev Mission Khadoor Sahib, Tehsil Khadoor Sahib,
District Tarn Taran.
3. Baldev Singh son of Surjit Singh, Trustee, Guru Angad Dev
Mission Khadoor Sahib, Tehsil Khadoor Sahib, District Tarn
Taran.
4. Balwinder Singh son of Gian Singh, Trustee, Guru Angad Dev
Mission Khadoor Sahib, Tehsil Khadoor Sahib, District Tarn
Taran.
.......Appellants/opposite parties Nos.3 to 6
Versus
1. Lakhwinder Kaur wife of Bikram Singh son of Lakha Singh,
resident of Village Mughlani, Tehsil Khadoor Sahib, District
Tarn Taran.
......Respondent/Complainant
2. Dr. Nirmal Singh, Civil Hospital, Tarn Taran.
3. Dr. Leena Mahajan, Civil Hospital, Tarn Taran.
First Appeal No.375 of 2012. 2
4. Gajjan Singh son of unknown, Trustee, Chairman, Guru Angad
Dev Mission Khadoor Sahib, Tehsil Khadoor Sahib, District
Tarn Taran.
........Respondents/Opposite Parties Nos.1, 2 & 7.
2. First Appeal No.950 of 2012
Date of institution : 17.07.2012
Date of decision : .01.2015
Lakhwinder Kaur wife of Bikram Singh son of Lakha Singh, resident
of Village Mughlani, Tehsil Khadoor Sahib, District Tarn Taran.
.......Appellant/Complainant
Versus
1. Dr. Nirmal Singh, Civil Hospital, Tarn Taran.
2. Dr. Leena Mahajan, Civil Hospital, Tarn Taran.
3. Guru Angad Dev Mission Hospital, Khadoor Sahib through its
Manager.
4. Jasbir Singh son of Master Puran Singh, owner Guru Angad
Dev Mission Khadoor Sahib, District Tarn Taran.
5. Baldev Singh son of Surjit Singh, owner, Guru Angad Dev
Mission Khadoor Sahib, District Tarn Taran.
6. Balwinder Singh son of unknown, owner, Guru Angad Dev
Mission Khadoor Sahib, District Tarn Taran.
7. Gajjan Singh son of unknown, owner, Guru Angad Dev Mission
Khadoor Sahib, District Tarn Taran.
.......Respondents/opposite parties
First Appeals against the order dated
18.01.2012 of the District Consumer
Disputes Redressal Forum, Tarn Taran.
First Appeal No.375 of 2012. 3
Before :-
Hon'ble Mr. Justice Gurdev Singh, President.
Mrs. Surinder Pal Kaur, Member.
Argued by:-
For the appellants :Shri B.D. Sharma, Advocate.
For respondent No.1 :Shri R.S. Sidhu, Advocate.
For respondent No.2&3: Shri A.P. Kaushal, Advocate. For respondent No.4 : Service dispensed with.
JUSTICE GURDEV SINGH, PRESIDENT:
The above noted appeals have been preferred against the order dated 18.1.2012 passed by District Consumer Disputes Redressal Forum, Tarn Taran (in short, "District Forum"), vide which the complaint filed by Lakhwinder Kaur, complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") was allowed against opposite parties Nos.3 to 7 (the appellants and respondent No.4 in FA No.375 of 2012) and they were directed to pay compensation of Rs.2,00,000/- and Rs.10,000/-, as cost of litigation, jointly and severally. The first appeal (FA No.375 of 2012) has been filed by opposite parties Nos.3 to 6 for setting aside that order, whereas the second appeal (FA No.950 of 2012) has been filed by the complainant for modification of the order so as to enhance the compensation of Rs.2,00,000/-.
2. The complainant alleged, in her complaint, that she was pregnant and the date of delivery was given by the doctor of opposite party No.3-Hospital near-about 11.1.2009. On that date she was advised to get the ultra-sound done from Kamal Hospital, Tarn Taran and accordingly she got the ultra-sound from that Hospital and it was reported in that report of ultra-sound that the delivery would be normal. As she belongs to a poor family, so she First Appeal No.375 of 2012. 4 herself and her family members, including her husband Bikram Singh, sister Jasbir Kaur, father-in-law Lakha Singh and brother-in- law Ranjit Singh, made up their mind that it would be convenient for them to get the delivery in Civil Hospital, Tarn Taran. Accordingly she accompanied by Ranjit Singh and Lakha Singh went to that Hospital where Dr. Nirmal Singh, opposite party No.1, advised them that the staff in the Hospital was not sufficient to handle the cases and that they should not waste the time. On the advice of that Doctor, she was admitted in opposite party No.3-Hospital for the delivery. On the same day (11.1.2009) at about 3.30 P.M. Dr. Nirmal Singh and Dr. Leena, opposite parties Nos.1 and 2, asked her to come inside the room for operation and by that time those Doctors had already conducted three delivery operations of the other ladies. They conducted her operation in hurry in negligent manner, which resulted in a cut on her uterus and without her permission/consent and that of her family members, they removed her uterus. She gave birth to a female child. On account of negligence of these two Doctors, she would be unable to bear any more child as per her wish. Opposite parties Nos.1 and 2 conducted her delivery, being the employees of other opposite parties. Opposite parties Nos.4 to 7 are the owners of opposite party No.3-Hospital and, as such, all the opposite parties are jointly and severally responsible for the removal of her uterus. She approached them and requested to compensate her for the removal of her important organ and to pay compensation for the pain and sufferings suffered by her at the time of operation and for the mental sufferings caused to her, as she had become First Appeal No.375 of 2012. 5 unable to bear the male child, who would have been helping hand to her and her husband at their old age as per the Indian traditions. She made a representation to the authorities of the Health Department and waited for the fruitful decision but the same never came. The Deputy Director (M)-Cum-Inquiry Officer, Director, Health and Family Welfare, Punjab, also conducted the enquiry but all in vain. Opposite party No.3-Hospital, which was in possession of the original file of delivery and the report of ultra-sound refused to hand over the same to her. On the basis of these allegations, she prayed for the issuance of following directions to opposite parties:-
i) to pay Rs.15,00,000/-, as compensation for the removal of the uterus and Rs.50,000/- for physical pain suffered by her at the time of operation;
ii) to pay Rs.3,00,000/- for mental sufferings caused to her;
iii) to pay Rs.10,000/-, as sundry and miscellaneous charges; and
iv) to pay Rs.10,000/-, as litigation expenses and counsel fee.
3. The complaint was contested by the opposite parties. Opposite parties Nos.1 and 2 filed joint written reply, in which they denied the allegations made against them in the complaint. They averred that whenever any patient visits the Civil Hospital, Tarn Taran, he/she is issued OPD slip after making an entry in the register of the Hospital. No such slip has been supplied by the complainant in spite of the fact that they asked her to produce such a document, vide their application dated 6.12.2010. Neither the First Appeal No.375 of 2012. 6 complainant nor any of her relative ever came to opposite party No.1 in the Hospital nor any such advice was given by them. They did not conduct any such operation of the complainant. As per birth certificate, the complainant had given birth to a female child on 11.1.2009 in Village Mughlani, Tehsil and District Tarn Taran and not in the Hospital or Nursing Home. They have no knowledge about the removal of her uterus and false allegations have been made against them for extracting money. No cause of action has been made out for filing the complaint against them and the same is liable to be dismissed with Rs.20,000/-, as litigation costs and Rs.5,000/-, as compensation on account of causing defamation, mental torture, pain, agony and harassment to them.
4. Opposite party No.3-Hospital while denying the allegations made in the complaint pleaded that there is no such Manager through whom the complaint has been filed against it. No doubt, a female child was born to the complainant in this Hospital but the delivery was conducted by Dr. Manjit Singh, Gynaecologist, who was called to the Hospital with the consent of the complainant and her husband. Her husband had filed an application before the SSP leveling different allegations and all the allegations made in the complaint are false. The doctor did his duty carefully with the consent of the relatives of the complainant, as she herself was unable to give that consent; being unconscious before the operation. The case involves complex questions of law and fact, which cannot be satisfactorily determined by the District Forum within the time frame laid down by the Act. The only remedy of the complainant is First Appeal No.375 of 2012. 7 before the Civil Court. As the matter is already pending before the Health Department, so the proceedings are liable to be suspended till the decision is taken by that Department. The complainant is not a 'consumer' and has no right to file this complaint. Besides opposite parties Nos.4 to 6, there are other trustees of the Hospital and those parties are not guilty of any such negligence, as they had done their duty carefully with the written consent of the relatives of the complainant. They prayed for the dismissal of the complaint with costs.
5. Opposite parties Nos.4 to 6 filed joint written reply, in which they have taken up the same pleas as have been taken by opposite party No.3 in its written reply.
6. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint against opposite parties Nos.3 to 7 and dismissed the same against opposite parties Nos.1 and 2, vide aforesaid order.
7. We have heard learned counsel for the parties and have carefully gone through the records of the case.
8. It was submitted by the learned counsel for opposite parties Nos.3 to 6 that the District Forum while recording the findings against the opposite parties totally ignored the evidence produced by them for proving that the uterus of the complainant was removed after obtaining the consent of her close relatives, including her husband, on account of the medical complications, in order to save her life. For proving the negligence on the part of the Doctor, it was First Appeal No.375 of 2012. 8 obligatory on the part of the complainant to prove that he was negligent in performing the delivery and that there was no necessity to remove the uterus. The Doctor performing the surgery prepared the Operation Notes Ex.R-3 and before performing that surgery, he obtained the consent of the relatives of the complainant and those consent forms were proved as Ex.R-4 and Ex.R-5. It was wrongly concluded by the District Forum that the Doctor did not exercise his skill with reasonable competence. There is no evidence on the record for supporting that finding nor any such medical literature was brought to the notice of the District Forum on the basis of which such a finding could have been recorded. The complainant for proving the negligence of the Doctor was required to examine some expert but no such expert evidence was produced. In the absence of such evidence and in the face of the evidence produced by the opposite parties, it cannot be concluded that there was medical negligence on the part of the doctor. It was wrongly concluded by the District Forum that the record itself suggests that the uterus was punctured while performing the operation in a hurry. No such conclusion can be drawn from the operation notes or other documents. In these circumstances, the findings recorded by the District Forum cannot be sustained and the impugned order is liable to be set aside.
9. On the other hand, it was submitted by the learned counsel for the complainant that no fault can be found with the findings recorded by the District Forum; which are not only supported by the evidence produced on the record but also by the law applicable on those facts. It stands proved from the evidence produced by the complainant that First Appeal No.375 of 2012. 9 during the operation the uterus was cut by the Doctor and he removed the same without any necessity. On account of this medical negligence of the Doctor the complainant has become unable to bear a child in future and she had to go through the physical and mental sufferings. For such medical negligence, the compensation of only Rs.2,00,000/- is very meager and the same is liable to be enhanced to Rs.15,00,000/-, as claimed in the complaint.
10. While recording the findings against opposite parties Nos.3 to 7, the District Forum totally ignored the facts pleaded by the complainant in her complaint. Throughout her complaint, she levelled allegations against Dr. Nirmal Singh and Dr. Leena, opposite parties Nos.1 and 2. According to her, it were those two Doctors, who had advised her to get herself admitted in opposite party No.3- Hospital and they had come to that Hospital and performed the operation in a negligent manner. Even the evidence to that effect was produced in the form of the affidavits of the complainant herself Ex.C-3/A, her husband Bikram Singh Ex.CW-4/A and Ranjit Singh Ex.CW-5/A. Those allegations and the evidence produced in support thereof were to be kept in mind by the District Forum while recording the findings but those were never kept in mind by it. It did not conclude that false allegations have been made against opposite parties Nos.1 and 2 and simply observed in the order that those allegations have not been substantiated by cogent evidence. From the oral as well as documentary evidence produced by opposite parties Nos.3 to 6, it firmly stands proved that the delivery and the operation was conducted by Dr. Manjit Singh Gill. The District First Appeal No.375 of 2012. 10 Forum came to the conclusion that this Doctor was medically negligent while performing the operation and in support of that finding, it recorded the reasons in detail. From the discussion, which is to follow, it stands proved that wrong findings have been recorded by the District Forum without properly appreciating the evidence and the law relating to medical negligence.
11. The law as to medical negligence of the doctor has been laid down by the Hon'ble Supreme Court in a number of judgments. It was held by the Apex Court in Kusum Sharma v. Batra Hospital & Medical Research Centre [2010(2) LAW HERALD (SC) 763] that the medical negligence cannot be attributed to a Doctor so long as he performs his duty with reasonable skill and competence. Merely because he chooses one course of action than the other course, he will not be liable if the course of action chosen by him was acceptable to the medical profession. In Jacob Mathew (Dr.) v. State of Punjab & Another [2005(2) CPC 515 (SC), it was laid down that 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. It was also held that a simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional and 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 available or simply because a more skilled First Appeal No.375 of 2012. 11 doctor would not have followed or adopted that practice or procedure.
12. Thus, in view of the settled law on medical negligence it is to be seen, whether Dr. Manjit Singh Gill was possessed of the requisite skill, which he professed to have possessed and whether he exercised that skill with reasonable competence?
13. The affidavit of Dr. Manjit Singh Gill was proved on the record as Ex.RW-6/A. He deposed therein that he is a specialized Gynaecologist and Pediatrician and that he is working, as such, in Manvir Multi-Specialty Hospital, Amritsar. His skill in that field was not challenged by the complainant either before the District Forum nor the same has been challenged before us. He himself had entered the witness box and after taking the oath tendered this affidavit in evidence. No request or attempt was made by the counsel for the complainant for cross-examining him. Thus, the complainant in spite of having an opportunity to challenge the deposition of this Doctor never made an attempt to challenge the same. The skill of the Doctor in the field of Gynaecology cannot be disputed.
14. This Doctor deposed in his affidavit that on 11.1.2009 he was called by Bikram Singh, husband of the complainant, to opposite party No.3-Hospital, being her emergency operation. When he reached the Hospital, her condition was very much serious and critical and she was unconscious due to her delivery pain. Her condition required early operation to save her life as well as that of the child as per the ultra-sound test conducted at Kamal Diagnostic First Appeal No.375 of 2012. 12 Centre and her clinical tests. He conducted her operation and before that operation, he obtained the consent of her husband and other relatives. In order to save her life and that of the child, he was left with no other option but to remove her uterus and for that prior consent was taken from the husband of the complainant and other relatives. There was no negligence on his part or on the part of the Doctor, who conducted the operation.
15. Though the deposition of this Doctor was not challenged by cross-examining him, yet the same was challenged before us by the learned counsel for the complainant on the ground that his statement stands contradicted by the Operation Notes Ex.R-3 and Consent Forms Ex.R-4 and Ex.R-5. According to him, the operation had already been performed before obtaining the consent. The operation was performed at 5.00 P.M. whereas the consent of the relatives was obtained at 6.00 P.M. and 7.00 P.M.
16. A perusal of the Operation Notes Ex.R-3, shows that the healthy baby was born during the delivery of the complainant at 5.00 P.M. The Placeta along with membrances was removed. However, there was gush of blood from the internal side of the uterus and even after giving of the injection the uterus did not contract and the bleeding did not stop. It is also mentioned in those Operation Notes that whole of this situation was explained to the relatives and the husband of the complainant and that it was very much necessary to remove the uterus on account of the non-contraction thereof and the continuous flow of blood from the same. It was also explained to her husband and her relatives that in case the same was not done, they First Appeal No.375 of 2012. 13 would lose the complainant. It was only thereafter that the uterus was removed, after obtaining the consent of the husband/relatives.
17. It becomes very much clear from the reading of the Operation Notes that the condition of the complainant had become serious after the delivery of the child and on account of the non-contraction of the uterus and the continuous flow of blood therefrom the removal thereof had become necessary and the same was removed only after the taking of the consent of her husband and the other relatives. In these circumstances, there was possibility of obtaining the consent of the husband and the relatives on the consent form after 5.00 P.M. Not only the Consent Forms were signed by them but they had also signed two statements in writing, in which it is mentioned that the condition of the complainant was serious and there was danger to her life and on account of that they were getting her uterus removed with their own consent. At no stage the complainant or her relatives came up with the plea that such consent was not given or that the said statements had not been signed by them. They had the occasion to deny all those facts, as the evidence was led by the complainant after those facts were disclosed by opposite party Nos.3 to 6 in their written reply. They did not deny those facts while making their deposition by way of the above said affidavits. The District Forum ignored all this evidence and facts while recording findings against Dr. Manjit Singh. It came to the conclusion that it is suggested from the record that the uterus was punctured while performing operation in hurry. Such a suggestion is not made out from the Operation Notes or the other First Appeal No.375 of 2012. 14 record. The best for the complainant was to examine some expert Doctor for proving that it was on account of the medical negligence on the part of Dr. Manjit Singh that the uterus was punctured and that the uterus was removed by the Doctor due to his own negligence. In fact, such a fact could have been proved only by way of expert evidence. The complainant opted not to produce any such evidence. She relied upon her own affidavit and the affidavits of her husband and others for proving the negligence of opposite parties Nos.1 and 2 and till the conclusion of her evidence she clinched to her stand that the operation was performed by those two opposite parties. Even after the evidence was produced by the opposite parties for proving that the operation was conducted by Dr. Manjit Singh and that there was no negligence on his part, the complainant did not come up with a prayer for producing additional evidence so as to rebut that evidence and for proving that Dr. Manjit Singh failed to exercise the skill, which he professed to have possessed.
18. From our above discussion, we conclude that there was no such medical negligence on the part of Dr. Manjit Singh and the uterus was removed by him in order to save the life of the complainant. In these circumstances the order passed by the District Forum cannot be sustained and is set aside.
19. Accordingly the appeal filed by opposite parties Nos.3 to 6 is allowed and the appeal filed by the complainant is dismissed. The order passed by the District Forum is set aside and the complaint of the complainant is dismissed.
First Appeal No.375 of 2012. 15
20. The sum of Rs.25,000/- deposited at the time of filing of the appeal (FA No.375 of 2012) along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellant No.1/opposite party No. 3 by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to the parties.
21. The arguments in these cases were heard on 19.1.2015 and the order was reserved. Now, the order be communicated to the parties.
22. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
January 30 , 2015. (MRS. SURINDER PAL KAUR)
Bansal MEMBER