State Consumer Disputes Redressal Commission
Jagjit Singh Sehdev vs Dr. S.J.S. Randhawa on 29 August, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 52 of 2008
Date of institution: 18.1.2008
Date of Decision : 29.8.2013
Jagjit Singh Sehdev son of Sh. Devi Chand, R/o 8217, Gali No. 4, Guru
Ram Dass Nagar, Sultanwind Road, Amritsar.
.....Appellant/complainant
Versus
1. Dr. S.J.S. Randhawa, Randhawa Hospital, 12, Mall Road,
Amritsar.
2. New India Assurance Co. Ltd., Mall Road, Amritsar.
.....Respondents/Opposite Parties
First Appeal against the order dated
15.11.2007 passed by the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Shri Jasbir Singh Gill, Member Argued By:-
For the appellant : None.
For respondents No.1&2 : Sh. Vinod Choudhary, Advocate
Gurcharan Singh Saran, Presiding Judicial Member The appellant/complainant(hereinafter called "the complainant") has filed the present appeal against the order dated 15.11.2007 passed by the District Consumer Disputes Redressal Forum, Amritsar (hereinafter called "the District Forum") in consumer complaint No. 505 of 2006.
2. The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') on the allegations that he had approached opposite party No. 1 for treatment of heart FIRST APPEAL NO. 52 OF 2008 2 disease and the opposite party advised to the complainant for INVASIVE ANDINTERVENTIONAL CARDIOLOGY test and the complainant had undergone that test from Dr. Puneet Kumar Verma. After going through the test report, OP No. 1 assured that his problem will be cured by latest technique comprises of ECP and AMT i.e. non-surgical comprehensive heart care with advanced medical treatment. This technique has been introduced to avoid angioplasty and Bypass surgery and its success rate is 95%. The complainant paid sum of Rs. 60,000/- although receipt of Rs. 38,000/- was issued and accordingly, his treatment was done and OP No. 1 assured the complainant that he is all right with no sign of said disease and that he is no need of any angioplasty or bypass surgery. He also paid another sum of Rs. 19078/- to the opposite party. However, the complainant was not satisfied with the treatment and he got himself checked from Tagore Heart Care and Health Centre Pvt. Ltd., Jalandhar and had undergone bypass surgery. He paid Rs. 80,000/- for his treatment in Tagore Heart Care and Health Centre Pvt. Ltd.. It was further alleged that the opposite party gave wrong assurance and defrauded the complainant. Accordingly, the complaint has been filed to direct the opposite party for refund of Rs. 60,000/-, compensation of Rs. 3,000/- and costs of litigation.
3. The complaint was contested by the opposite parties. OP No. 1, who filed the reply/written statement taking preliminary objections that the complainant does not fall under the definition of 'consumer'; complaint is not maintainable as no specific instance of negligence has been cited; the complaint is abuse of process of the FIRST APPEAL NO. 52 OF 2008 3 Forum as he has not come to the Court with clean hands; there is no deficiency in service on the part of OP No. 1; the pamphlet clearly showed 95% chances of success, 5% of failure; the complainant is 66 years old with all the arteries involved, therefore, success rate has to be lowered; further he signed the consent form accepting the failure rate of 25%. There are two scientific proofs to show that he was benefited from ECP:-
(i) Proof No. 1:-
TMT test done on 23.7.2005 showed he could exercise for period of 4min12 secs;
TME repeated on 1.9.2005 showed an improvement of exercise time 7min.42 secs:
i.e. 462-252 = 210 secs 210/252 + 100 = 83%
(ii) On 5.7.2005 Angeography at Escorts - EF 45% [23.7.2005 to ECP Treatment - 35 sittings upto 30.8.2005] On 13.10.2005 Angiography at Tagore - EF 55% Date of Surgery 28.10.2005 On 16.2.2006 Echogariography at Tagore - EF 57%"
4. The only point on the basis of which negligence of opposite party is proved/attached is the assurance given by the opposite party for his successful treatment; the complaint is false, vexatious and action is required to be taken against the complainant under Section 26 of the Act and that the complainant is estopped by his own act and conduct in the complaint. On merits, it has been accepted that the complainant came to OP No. 1 alongwith report of Dr. Punit Verma, Escorts Hospital where he had undergone coronary angiography on 5.7.2005 and his arteries were blocked as 60%, 100% and 90% with L VE F 45% and he was advised Myocardial Revascularisation i.e. heart bypass surgery but the complainant had FIRST APPEAL NO. 52 OF 2008 4 not opted for the same being expensive then the opposite party told about the latest technique comprising of ECP and AMT, which cost 1/5th to Bypass surgery and rate of success upto 80%. After the operation complainant remained at home from 5th July to 22nd July and he came to the opposite party on 23.7 and deposited Rs. 38,000/- and after the treatment he showed improvement and was discharged from hospital. This is computer generated report and it shows clear legal evidence that he was benefited from the treatment. It has been denied that he deposited Rs. 60,000/- in fact he had deposited Rs. 30,000/- and Rs. 8,000/-. It has been further stated that the complainant without any consultation from the opposite party had gone to Tagore Hospital and fresh angiogram done by the said hospital showed that some of the new one blockages appeared and observation was Normal LV functions on ECHO which means AN LVEF of 55 to 75%. The discharge slip shows LVEF 55%, thus, compared with pre ECP LVEF valve of 45%, it shows an improvement of 22%. It has been denied that OP No. 1 had given wrong assurance and committed fraud with the complainant by saying that after the treatment he will be all right. Therefore, there is no evidence to show that there was any negligence and deficiency in service on the part of the opposite party. Therefore, there is no merit in the complaint and the same be dismissed.
5. Opposite party No. 2 filed written statement taking preliminary objections that the complainant has no cause of action to file the complaint; there is no privity of contract between the complainant and thus, no liability can be fastened upon the opposite FIRST APPEAL NO. 52 OF 2008 5 party because opposite party has to see whether there is any alleged carelessness/negligence and whether the same is covered under the policy; no claim has been preferred by the concerned Doctor of the hospital and that the there is no liability of this opposite party. On merits, contents of the complaint have been denied for want of knowledge.
6. The parties were allowed by the learned District Forum to lead their evidence.
7. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, Coronary report of Escort Hospital Ex. C-2, Phamplet cum assurance letter of Randhawa Hospital Ex. C-3, payment receipts Exs. C-4 & 5, discharge card Ex. C-6, Report of Cardio Vascular Ex. C-7, Lab investigation of Tagore Hospital Ex. C-8, coronary angiogram Ex. C-9, Discharge summary Ex. C-10, operative diagram Ex. C-11, 2D colour Doppler Report Ex. C-12, payment receipts Exs. C-13&14, legal notice Ex. C-15, postal receipt Ex. C-16, certificates of Dr. Gurvinder Singh Exs. C-17&18.
8. On the other hand, opposite party No. 2 had tendered into evidence affidavit of M.S. Randhawa, Divisional Manager Ex. R-1, copy of policy Ex. R-2 and OP No. 1 had tendered into evidence affidavit of Dr. S.J.S. Randhawa Ex. R-3, cash sheet Ex. R-4, informed consent Ex. R-5, opinion of leading cardiologist Ex. R-6, report of Fort Worth Heart Care Ex. R-7 of EECP, copies of strees tests/charts/reports Ex. R-8 to R-10.
9. After going through the allegations in the complaint, written statements, evidence and documents brought on the record, FIRST APPEAL NO. 52 OF 2008 6 the learned District Forum in the impugned order observed that after the operation there was improvement in the condition of the complainant and specific report of Dr. K.K. Talwar, Head and Professor of Cardiology Department, PGI, Chandigarh was taken, who in his report stated that the patient was not willing to undergo CABG, therefore, he had given Enhanced External Counter Pulsation (EECP), which is safe therapy and does not worsen the disease but symptomatic improvement only in some of the patients, therefore, there is no reason to think that it is the case of inefficacy of the EECP therapy and ultimately, he concluded that there is no negligence or deficiency in service on the part of opposite party No. 1 and agreeing with the report of Dr. K.K. Talwar, the learned District Forum find not to see any merit in the complaint filed by the complainant and the same was dismissed.
10. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
11. On 20.8.2013, none has appeared for the appellant and we have heard the learned counsel for respondents No. 1 & 2 Sh. Vinod Chaudhary and with his assistance have gone through the record of the learned District Forum.
12. In the grounds of appeal, it has been contended that the learned District Forum has completely mis-read and did not consider the facts of the present case. The opposite party had introduced the complainant with ECP and AMT technique and as per the assurance given by OP No. 1 he had undergo with that treatment but his disease was not cured and ultimately he had to undergo bypass surgery from FIRST APPEAL NO. 52 OF 2008 7 Tagore Health Care and Health Centre, therefore, there is negligence on the part of OP No. 1, therefore, the complaint filed by the complainant has been wrongly dismissed by the learned District Forum and the same be allowed and adequate claim be given to the complainant.
13. In the case of medical negligence, the onus is basically upon the complainant to prove negligence or deficiency in service on the part of the opposite party. The medical negligence can be proved in case there is a prima-facie default on the part of the Doctor in the treatment or that the Doctor did not do what was required to do under the Medical Science or that the Doctor did something, which was not required to be done under the Medical Science. However, the evidence shows that the complainant approached OP No. 1 and he was intimated about his heart disease and that he would have to undergo CABG, which the complainant was not interested and ultimately, opposite party made aware of the EECP and further explained that its successful rate is upto 95% and failure chances 5% but at the time of taking operation, it was further observed that normal successful rate will be 80% but keeping in view the age of the complainant it was assessed as 75% and further it is clear from the consent form that there is no guarantee for the cure as per from Ex. R-5. After the operation, the following tests show that he was benefited from the treatment because his exercise period was increased from 4min 12 seconds to 7 min 42 seconds. As on 5.7.2005 his EF was 45% but on 13.10.2005 EF 57%. Although his entire disease was not cured, therefore, he had to undergo bypass FIRST APPEAL NO. 52 OF 2008 8 surgery from Tagore Hospital, Jalandhar. The opposite party initially had intimated to the complainant that he needs CABG i.e. bypass surgery which he was not willing but lateron he had to undergo for that surgery for which the opposite party cannot be blamed. The entire record was sent to Dr. K.K. Talwar, Department of Cardiology Department, PGI, Chandigarh and he in his report observed as under:-
"REPORT OF DR. K.K. TALWAR, HEAD AND PROFESSOR OF CARDILOGY DEPARTMENT, P.G.I. CHANDIGARH Comments The patient under question has Diabetes Mellitus Type 2 with CAD with triple vessel disease with normal ventricular function. The standard therapy for such a patient is Coronary Artery Bye Pass Surgery (CABG). My comments regarding the two questions which you have posed in your letter are as follows :
Q1 Whether there was any improvement in the condition of the patient after providing of this treatment (EECP) by the doctor concerned.
It appears that this patient was not willing to undergo CABG initially and was offered External Counter Pulsation (EECP). The consent form for EECP clearly indicate that the patient had refused CABG. EECP is a therapy which is generated used in patients with refractory angina who was either not fit for revascularization (CABG/Angioplasty) or not willing to undergo the same. If offers symptomatic benefit in such patients. The TMT done pre and post procedure suggest that there was improvement in exercise capacity; however, whether the protocol used was similar in both instances is not clear.
Q.2 Whether his subsequent bypass surgery at Tagore Heart Care and Research Centre pvt. Ltd. was due to inefficacy of the treatment provided through External Counter Pulsation by the opposite party.
EECP is a safe therapy and does not worsen the disease. The only thing is that symptomatic improvement occurs in only some of the patients. So in this case there is no reason to think that he went through the surgery because of the inefficacy of the EECP therapy."FIRST APPEAL NO. 52 OF 2008 9
which clearly shows that the EECP properly done but symptomatic improvement occurs only in some of the patients and it cannot be said that he had gone through the surgery on account of inefficacy of the EECP therapy. To prove the medical negligence, the complainant is required to prove expert evidence or any documentary evidence. Medical negligence has been observed by the Hon'ble Apex Court in the judgment reported as "Malay Kumar Ganguly versus Dr. Sukumar Mukherjee and others", 2009(4) RCR (Criminal) 1 as follows:-
"Medical negligence - Held -
1. Mere deviation from normal professional practice is not necessarily evidence of negligence.
2. Mere accident is not evidence of negligence.
3. An error of judgment on the part of a professional is not negligence per se.
4. Simply because a patient has not favourably responded to a treatment given by a physical or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitor."
14. It has been observed in the said judgment that no guarantee is given by any Doctor that the patient would be cured; adoption of one of the mode of treatment, if there are many and treating the patient with due care and caution would not constitute any negligence.
15. We have gone through the allegations of the complaint and evidence on the record but the complainant prima-facie has not been able to prove anything on the record which may prove negligence or deficiency in service on the part of OP No. 1 because after EECP some improvement has been received by the FIRST APPEAL NO. 52 OF 2008 10 complainant. It further proves that he was hesitant to undergo bypass surgery at the initial stage but ultimately, he had to go for that at Tagore Heart Care and Health Centre Pvt. Ltd., Jalandhar for which no negligence can be assigned on OP No. 1 in the treatment given by him. Therefore, we are of the opinion that the findings so recorded by the learned District Forum are correct findings and the same are hereby affirmed.
16. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
17. The arguments in this appeal were heard on 20.8.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member August 29, 2013. (Jasbir Singh Gill) as Member FIRST APPEAL NO. 52 OF 2008 11