State Consumer Disputes Redressal Commission
Balkar Singh vs Dr. Raman Chawla on 27 April, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1377 of 2014
Date of institution: 10.10.2014
Date of Decision: 27.4.2015
Balkar Singh S/o S. Darshan Singh, R/o Vill. Verpal, PO Makhu, Tehsil
Zira, Distt. Ferozepur.
Appellant/Complainant
Versus
1. Dr. Raman Chawla, Chawla Heart Care Centre, Guru Nanak Mission
Chowk, Apex Hospital Complex, Jalandhar.
2. Chawla Heart Care Centre, Guru Nanak Mission Chowk, Apex
Hospital Complex, Jalandhar through its Proprietor.
3. National Insurance Company Ltd., BO III, BMC Chowk, Jalandhar
through its Branch Manager/Authorized Signatory.
Respondents/Opposite Parties
First Appeal against the order dated 4.9.2014
passed by the District Consumer Disputes
Redressal Forum, Jalandhar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Ashish Bakhshi, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
2 FIRST APPEAL NO. 1377 OF 2014 The appellant/complainant (hereinafter referred as "the complainant") has filed the present appeal against the order dated 4.9.2014 passed by the District Consumer Disputes Redressal Forum, Jalandhar(hereinafter referred as the District Forum) in consumer complaint No.429 dated 1.11.2013 vide which the complaint filed by the complainant was dismissed.
2. The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the respondents/opposite parties(hereinafter referred as OPs) on the averments that he had availed the services of the Ops for the treatment of his father Darshan Singh, who was admitted in the hospital of the Op on 28.10.2011 with cough and fever. However, the Ops failed to provide efficient services to his father, as a result of which he died due to the medical negligence of the Ops. His father remained admitted in that hospital from 28.10.2011 to 9.11.2011. Although the complainant had requested OP No. 1 that he is not satisfied with the treatment being provided by them and they should refer to his father to some better hospital but they did not bother. The Ops had been saying that the patient was suffering from minor problem and he will be all right within a few days and started giving medicines relating to the heart problem whereas he was not suffering from any such problem. They had received a sum of Rs. 85,100/- for the treatment of his father but could not save his life due to their own negligence. Hence, the complaint was filed directing the ops to pay a sum of Rs. 1 lac as compensation for mental torture, agony and harassment and Rs. 2 lacs as damages due to untimely death of his 3 FIRST APPEAL NO. 1377 OF 2014 father, due to the negligence on the part of the OPs, Rs. 1 lac for purchase of medicines and Rs. 85,000/- paid to the Ops, in all Rs. 4,85,000/- and Rs. 10,000/- as litigation expenses.
3. The complaint was contested by the Ops. OP Nos. 1 & 2 who filed written reply taking preliminary objection that the complaint was not maintainable as nothing was mentioned in the complaint regarding wrong treatment given to the deceased by the Ops; the dispute raised by complainant was outside the purview of the Act; the complaint was baseless and flagrant abuse of process of law to harass and blackmail the Ops; the complainant had no cause of action to file this complaint; there was no expert opinion that the treatment given by the Ops was negligent in any manner and that the OPs had good reputation in the medical fraternity and the present complaint was filed just to tarnish the image of the Ops. On merits, it was admitted that on 28.10.2011, father of the complainant was brought in emergency to the Ops Hospital with a problem of cough and fever and extreme difficulty in breathing. On examination, he had a heart failure with superadded chest infection which had complicated the already existing heart disease causing increased risk to the life of the patient. The consent was given by the complainant that the patient was of high risk patient and it was written in the consent that the patient was known case of heart disease. It was denied that the Ops failed to give efficient services to the father of the complainant. The allegations were false made just to tarnish the image of the OPs. It was denied that the complainant had told the Ops that he was not satisfied with the treatment given to his father or that his father be 4 FIRST APPEAL NO. 1377 OF 2014 shifted to some better hospital. It was also denied that the Ops had been saying that the father of the complainant was suffering from minor problem or that he will be all right in a few days. On diagnosis, the patient was found of chronic case of DM/HTN/COPD, severe aortic valve stenosis and found to have tachycardia, hypoxic with bilateral bronchospasm. The patient was first managed conservatively with the bronchodilators and other supportive therapy as the condition of the patient worsened, as such, he needed invasive ventilator support from 2.11.2011 in which he improved gradually and was extubated on 8.11.2011. Despite the great and expertise efforts of the attending doctors of the hospital, the patient suffered cardiac arrest on 9.11.2011 at 11.10 p.m. and could not be revived. It was denied that proper medical treatment was not given or that there was any medical negligence in providing the treatment. Accordingly, it was submitted that the complaint was without merit and it be dismissed.
4. OP No. 3 in its written reply took the preliminary objections that the complainant was not consumer of this OP; there was no privity of contract between the complainant and this OP; there was no deficiency in service on the part of this OP. On merits, issuance of Professional Indemnity Doctor's Policy No. 404305/46/11/8700000103 to Dr. Raman Chawla was admitted but it was denied for want of knowledge that father of the complainant had died due to medical negligence on the part of OPs. It was pleaded that there was no liability on the part of this OP against the complainant. The complaint was without merit and it be dismissed against this OP.
5FIRST APPEAL NO. 1377 OF 2014
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence affidavit of Balkar Singh Ex. CW-1/A, bill of Chawla Heart Care Centre Ex. C-1, History and investigation reports Exs. C-2 & 3, death certificate Ex. C-4. On the other hand, OP Nos. 1 & 2 had tendered into evidence affidavit of Dr. Raman Chawla Ex. OP-1/A, Indoor Patient Record file Ex. Op-1. OP No. 3 had tendered into evidence affidavit of B.S. Joshan, Br. Manager Ex. OP-3/A, policy Ex. Op-3/1,
7. After going through the allegations in the complaint, written replies filed by the OPs, evidence and documents brought on the record, the complaint was dismissed by the learned District Forum as the complainant had failed to establish any case of medical negligence.
8. We have heard the learned counsel for the appellant and have perused the record of the District Forum.
9. Before dealing with the appeal on merits, the counsel for the appellant had moved an application for permission to lead the evidence that he wants to produce an expert opinion of any Doctor with regard to the treatment given to the father of the complainant by the Ops, accordingly, he be allowed to lead additional evidence.
10. Full opportunity was given to the complainant to lead the evidence before the District Forum. Even this application is a vague. He has not so far obtained any opinion from any Doctor with regard to the treatment given by the Ops. Even in the application, he has not 6 FIRST APPEAL NO. 1377 OF 2014 referred to the name of any Doctor, whose opinion he wants to seek, therefore, the vague application cannot be allowed, the same is hereby dismissed.
11. It has been contended by the counsel for the appellant/complainant that father of the complainant was admitted with the Ops on 28.10.2011 with the problem of cough and fever etc. and was not suffering from any heart disease but the treatment given by the Doctor was that of heart disease and he received a hefty amount of Rs. 85,000/- for the treatment of his father and could not save him. In case we go through the record produced by the parties before the District Forum, Ex. C-2 is the discharge summary, which reads as under:-
"Mr. Darshan Singh admitted in this hospital on 28-10-11 at 1:45 PM with complaint of cough, fever and shortness of breath. He is a k/c/o. DM / HTN / COPD, Severe aortic valve stenosis. He was found to have tachycardia, hypoxic with bilateral bronchospasm. He was managed conservatively with bronchodilators and other supportive therapy. His condition worsened and he needed invasive ventilator support from 02.11.11. He improved gradually and was extubated on 08.11.11. He had recurrence of shortness of breath with severe bronchospasm. He was managed with non-invasive ventilator support. He suffering cardiac arrest on 09.11.11 at 11:10 PM and could not be revived."
12. It is duly supported by the affidavit of Dr. Varun Chawla OP No. 1 that the patient was having a heart disease. Ex. OP-1 is the 7 FIRST APPEAL NO. 1377 OF 2014 patient record and provisional diagnosis, it has been mentioned as under:-
"Chest infection/ Dysporea/ Heart failure/ Angina/ Aortic Stenosis/ NIDDM/ COPD and in the final diagnosis, it has been mentioned as under:-
"Chest infection/ Septicaemia/ Gross LV Dysfunction / Severe Aortic Stenosis (Pg - 100mm Hg) EP - 30% / NIDDM, COPD/ VT/ Cardiac arrest"
13. The case history of the patient at the time of admission on 28.10.2011 is as under:-
"66 Yrs Male presented Ĉ the history of cough & expectesation from last 10 - 15 days. Expectesation was brownish in colour with History of fever on & off. He had difficulty in breathing and had H/o extreme difficulty in breathing after lying down for 2-3 hrs, suggestive of asthopnea.
He had H/o chest pain, central radiating to both arms related to exertion from last 4-5 months. Intermittently, he had H/o Vertigo and giddiness. There is in addition H/o wheezing Ĉ difficulty in breathing. He is a K/do past heart disease as revealed by attendants. As per attendants, he was not taking regular medicine. He had History of diabetes Mellitus."
14. Then there is a consent dated 28.10.2011 given by this complainant in which he stated that the patient is an old patient of heart and sugar disease and there is a risk to life 10 to 15% and he gave the consent to go for the treatment. Then there is an other consent dated 2.11.2011 that the patient had high heart beat, 8 FIRST APPEAL NO. 1377 OF 2014 therefore, he be put to Ventilator and accordingly, he was put to ventilator. Therefore, these documents and the consent given by the complainant himself indicate that the patient was heart patient. Moreover, the hospital of the Ops is basically a Heart Care Centre that was the reason that the patient had come to this Hospital for treatment, therefore, it cannot be said that the patient was not a heart patient.
15. It has been stated that the proper treatment was not given by the Ops. Entire medical record has been placed on the record and the counsel for the appellant was unable to pin-point what was the fault in his treatment. The medicines were administered to make the patient stable and then he was also put to ventilator to make him stable. In the grounds of appeal, it has not been mentioned what other treatment should have been given and the learned District Forum has after relying upon the judgment "Kusum Sharma & Ors Vs. Batra Hospital & Medical Research Centre & Ors.", I(2010) CPC 29 (SC) of the Hon'ble Apex Court held that no Doctor can give 100% guarantee. It is for the Doctor, who is giving the treatment to see what treatment can be beneficial to the patient. The case of medical negligence can be only in case the treating Doctor has not followed the standard medical practice in giving the treatment. As stated above, the counsel for the appellant was unable to pin-point that the treatment given to the patient i.e. father of the complainant was not according to the medical standards. In case the OPs were unable to save the life of the patient, it does not mean that they were negligent in giving the treatment because no one can give 100% guarantee for 9 FIRST APPEAL NO. 1377 OF 2014 survival and already in the consent memo, it was intimated to the complainant that it is a risk to the life of the patient 10 to 15%. We are of the opinion that the order passed by the learned District Forum is justified. During the course of arguments, the counsel for the appellant was unable to make out any point on the basis of which the appeal could be admitted.
16. Therefore, the appeal so filed by the appellant/complainant is hereby dismissed in limine.
17. The arguments in this appeal were heard on 15.4.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
17. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member April 27, 2015. (Surinder Pal Kaur) as Member