State Consumer Disputes Redressal Commission
Dr. Gagandeep Tathgur vs Veerpal Kaur And Anr. on 27 January, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) First Appeal No.16 of 2020
Date of institution : 13.01.2020
Reserved On : 18.01.2021
Date of decision : 27.01.2021
Dr. Gagandeep Tathgur, M.S. ENT, presently posted as Medical
Officer, Civil Hospital, Barnala, District Barnala.
....Appellant/Opposite Party No.2
Versus
1. Veerpal Kaur wife of Sh. Jaspal Singh, Resident of Block No.E-
16, Railway Colony, Barnala.
....Respondent/Complainant
2. Civil Hospital, Barnala, through Senior Medical Officer, Civil
Hospital, Barnala.
3. Oriental Insurance Co. Ltd., Head Office 4E/14, Azad Bhawan,
Jhandewalan Ext., New Delhi-110005, having one of its
Divisional Office at Sai Market, Lower Mall, Patiala, through its
Senior Divisional Manager.
....Respondents/Opposite Parties No.1 & 3
2) First Appeal No.648 of 2019
Date of institution : 01.10.2019
Reserved On : 18.01.2021
Date of decision : 27.01.2021
Oriental Insurance Co. Ltd., Head Office 4E/14, Azad Bhawan,
Jhandewalan Ext., New Delhi-110005, having one of its Divisional
Office at Sai Market, Lower Mall, Patiala, through its Senior Divisional
Manager, through its Authorized Signatory, Oriental Insurance
Company Limited, Regional Office, SCO No.109-111, Sector 17-D,
Chandigarh.
....Appellant/Opposite Party No.3
Versus
1. Veerpal Kaur, aged about 29 years, wife of Sh. Jaspal Singh,
Resident of Block No.E-16, Railway Colony, Barnala.
....Respondent/Complainant
2. Civil Hospital, Barnala, through Senior Medical Officer, Civil
Hospital, Barnala.
First Appeal No.16 of 2020 2
3. Dr. Gagandeep Tathgur, M.S. ENT, presently posted as Medical
Officer, Civil Hospital, Barnala, District Barnala.
....Respondents/Opposite Parties No.1 & 2
3) First Appeal No.793 of 2019
Date of institution : 02.12.2019
Reserved On : 18.01.2021
Date of decision : 27.01.2021
Veerpal Kaur, aged about 30 years, wife of Sh. Jaspal Singh, Resident
of Block No.E-16, Railway Colony, Barnala.
....Appellant/Complainant
Versus
1. Civil Hospital, Barnala, through Senior Medical Officer, Civil
Hospital, Barnala.
2. Dr. Gagandeep Tathgur, M.S. ENT, presently posted as Medical
Officer, Civil Hospital, Barnala, District Barnala.
3. Oriental Insurance Co. Ltd., Head Office 4E/14, Azad Bhawan,
Jhandewalan Ext., New Delhi-110005, having one of its
Divisional Office at Sai Market, Lower Mall, Patiala, through its
Senior Divisional Manager.
....Respondents/Opposite Parties No.1 to 3
First Appeals against the order dated
19.08.2019 of the District Consumer
Disputes Redressal Forum (now,
"Commission"), Barnala.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member.
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued By (FA No.16 of 2020):-
For the appellant : Sh. Munish Kapila, Advocate
For respondent No.1 : Sh. Arihant Goyal, Advocate
For respondent No.2 : None
For respondent No.3 : Sh. Satpal Dhamija, Advocate.
First Appeal No.16 of 2020 3
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT
By this common order, we will dispose of all the above noted three (3) appeals, as they have arisen from the same impugned order dated 19.08.2019 passed by District Consumer Disputes Redressal Forum (now, "Commission"), Barnala (in short, "the District Commission"). First Appeal No.16 of 2020 has been preferred by opposite party No.2-Dr. Gagandeep Tathgur and First Appeal No.648 of 2019 has been filed by opposite party No.3-Oriental Insurance Company Limited, seeking setting aside of the impugned order, whereas First Appeal No.793 of 2019 has been filed by the complainant-Veerpal Kaur for enhancement of compensation, already awarded by the District Commission.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission. The facts are taken from First Appeal No.16 of 2020. Misc. Application Nos.105 & 107 of 2020 (Addl. Evidence)
3. These applications have been filed by the appellant/opposite party No.2, with a prayer to produce the documents Annexure A-1 to Annexure A-5 on record, by way of additional evidence.
4. Heard.
5. By way of these applications, the appellant/opposite party No.2 wants to produce on record copies of complaint, written statement filed by opposite party No.2, Investigation Report dated First Appeal No.16 of 2020 4 01.02.2018 and literature of Triamcinolone. It needs to be mentioned that record of the District Commission has already been summoned and attached with First Appeal No.793 of 2019. The Investigation Report dated 01.02.2018 is also a part of District Commission's record. So far as the literature of Triamcinolone is concerned, the same can be referred/considered at the time of arguments. Therefore, there is no need to produce aforesaid documents by way of additional evidence. Accordingly, the applications filed by the appellant are dismissed. Main Case
6. Brief facts, as averred in the complaint, are that the complainant suffered from boil on her nose. She approached opposite party No.1-Hospital on 11.11.2017, where a Slip was issued after charging ₹10/- and opposite party No.2 prescribed some medicines thereon. He also advised the complainant to get X-ray of her nose; which was duly got conducted by her. Thereafter, the complainant, along with her sister Gurdeep Kaur, visited opposite party No.2 for further treatment on 17.11.2017; who injected an injection named "Triamcinolone" 0.5 ml in the nose of the complainant, by charging a sum of ₹200/-. However, opposite party No.2 refused to issue any receipt, even despite repeated requests of the complainant, which was required by her husband. After injection of "Triamcinolone", the complainant felt unconsciousness and she was shifted to Emergency Ward of Civil Hospital, Barnala. She gained consciousness after about 20 minutes and, thereafter, she vomited twice. Besides this, the complainant was unable to see with her left eye. The matter was First Appeal No.16 of 2020 5 reported to opposite party No.2, who admitted the complainant in opposite party No.1-Hospital on the same day and in the evening, she was referred/admitted to/in Rajindra Hospital, Patiala on 17.11.2017. However, no doctor checked the complainant at Rajindra Hospital, as it were late night hours. Even no slip was issued by Rajindra Hospital on 17.11.2017, though a number of tests were advised for the complainant; which were got conducted by her husband. The prescription slip was issued only in the morning on 18.11.2017, after the complainant was checked by the Eye Specialist at Rajindra Hospital. On the asking of said Eye Specialist, husband of the complainant contacted opposite party No.2 telephonically, who advised him to get the complainant checked at Global Eye Hospital at Patiala. Accordingly, she was taken to Global Eye Hospital, Patiala, on 18.11.2017, where a number of tests were conducted. The complainant came to know that the eyesight of her left eye had been totally lost and eyesight of right eye had also gone weak; as a result of which she has to bear glasses of 0.5 power on her right eye. It is further pleaded that as per guidelines issued by the manufacturer of the aforesaid injection, the same is not recommended for injecting around/into the eye or certain parts of the nose, due to risk of blindness or damage to the eye(s). Thus, the complainant suffered eye disability, mental agony, tension etc. at the hands of opposite party No.2, who was negligent while injecting the said injection. She requested opposite party No.1 to make payment of ₹20 lac towards compensation due to his negligence, but to no effect. Earlier, the First Appeal No.16 of 2020 6 complainant filed a complaint before the District Commission on 25.04.2018, but the same was dismissed as withdrawn on 11.05.2018 due to technical errors, with permission to file a fresh complaint. Hence, the complainant filed fresh complaint before the District Commission, seeking issuance of directions to the opposite parties to pay a sum of ₹20 lac on account of eye disability, mental agony and tension etc. suffered by the complainant, including ₹20,000/- as litigation expenses.
Defence of the Opposite Parties
7. Upon notice, opposite parties No.1 to 3 appeared before the District Commission and filed their separate replies to the complaint.
8. Opposite party No.1, in its reply, raised preliminary objections qua complaint being bad for non-joinder and mis-joinder of necessary parties, concealment of material facts, no cause of action etc. It is further pleaded that the complainant does not fall under definition of 'consumer', as the treatment was given to her at opposite party No.1-Hospital free of charge on behalf of the Government of Punjab, in discharge of official duties. As such, the District Commission had no jurisdiction to entertain and decide the complaint. On merits, facts qua visits of the complainant at Civil Hospital, Barnala on 11.11.2017 and 17.11.2017 and issuance of slip of ₹10/- are admitted. It is pleaded that the matter was enquired on the application dated 11.12.2017 sent by husband of the complainant against opposite party No.2. As per Investigation Report bearing No.324 dated First Appeal No.16 of 2020 7 01.02.2018 submitted by Senior Medical Officer/In-charge, Civil Hospital, Barnala, opposite party No.2 has been found to be not negligent in treating the complainant. Contents of para-3 of the complaint are denied for want of knowledge, as no date of coming to know about complete loss of eyesight of left eye of the complainant and weakening of eyesight of her right eye is given. It is also denied that there is any deficiency in service on the part of opposite party No.1. All other allegations levelled in the complaint were denied and dismissal of the complaint with costs is prayed.
9. Opposite party No.2, in his reply, raised preliminary objections that he has not been paid even a single paisa by the complainant for her treatment at Civil Hospital, Barnala and, as such, she does not fall under the definition of 'consumer', in view of the law laid down by the Hon'ble Supreme Court in case Indian Medical Association v. V.P. Shantha (1995) 6 SCC 651. Opposite party No.2 is an employee of the Government of Punjab, who being his superior/employer, is vicariously liable for all the acts done by its employee. The complaint has been filed only to harass opposite party No.2 and to extort money from him. No specific, scientific and justified allegations qua any negligence or deficiency in providing services have been made by complainant against opposite party No.2. Exorbitant amounts have been claimed in the complaint, without any basis. No negligence has been committed by opposite party No.2 while providing treatment to the complainant. No cause of action has arisen to the complainant to file the complaint against him. The First Appeal No.16 of 2020 8 complaint is false, fabricated and baseless. It is further pleaded that opposite party No.2 was insured with Oriental India Insurance Company Limited, through Professional Indemnity Policy No.272200/48/2018/14900; which was effective from 14.10.2017 to 13.10.2018. It is further pleaded that opposite party No.2 is well- qualified and reputed doctor, with substantial goodwill and experience of long standing successful medical practice. The complainant/patient reported to opposite party No.2 in OPD of Civil Hospital, Barnala on 11.11.2017. She was diagnosed as a case of keloid on the right side of the dorsum of the nose. The complainant was duly explained the treatment options of medical as well as surgical management of keloid. She was given intra-lesional injection "kenacort 0.5 ml" in the keloid situated on dorsum of the nose, only after taking required consent and admitting the patient by preparing bed-head ticket. Prior to administering the injection "kenacort", the patient was duly explained about pros and cons, along with the possible complications of "triamcinolone". The patient developed complications due to injection of "kenacort" (triamcinolone) and was referred to Rajindra Hospital, Patiala. Opposite party No.2 has acted diligently, prudently with utmost due care and caution while treating the complainant. On merits, similar pleas, as raised in the preliminary objections, were reiterated. It is further pleaded that the diminution of vision is one of the possible complications of "kenacort" injection, but such instructions are not written on the "Kenacort" vial stating that it cannot be given in the keloid lesion situated on the nose. All other allegations levelled in the First Appeal No.16 of 2020 9 complaint were denied and it was prayed that the complaint be dismissed with costs of ₹10,000/-, under Section 26 of the Act.
10. Opposite party No.3, in its reply, raised preliminary objections that opposite party No.2 was insured with it, vide "Professional Indemnity-Doctors Policy Schedule" bearing No.272200/48/2018/14900; which was valid from 14.10.2017 to 13.10.2018 for a sum assured of ₹10,00,000/-, having previous policy No.272200/48/2017/14238. However, when the policy was issued along with terms and conditions to opposite party No.2, he was not working as Medical Officer at Civil Hospital, Barnala. Thus, opposite party No.3 is not liable to pay any compensation to the complainant. Even if opposite party No.2 is found negligent in his professional duties, even then opposite party No.3 is not liable to pay any compensation, as per terms and conditions of Insurance Policy, in question. It is further pleaded that the dispute raised in the complaint is complicated, which can be decided only by the Civil Court. The complainant has not impleaded Rajindra Hospital, Patiala as a party, from whom she has admittedly taken the treatment. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed.
Evidence of the Parties and Finding of the District Commission
11. The complainant, in support of her claim, tendered in evidence her own affidavit, Ex.C-8, along with copies of documents i.e. prescription slip dated 11.11.2017 issued by Civil Hospital, Barnala, Ex.C-1 (colly.); prescription slip dated 17.11.2017 issued by Civil First Appeal No.16 of 2020 10 Hospital, Barnala, Ex.C-2; Admission Record Ex.C-3 (colly.); report of MRI and CT Scan Ex.C-4; OPD slip dated 18.11.2017 issued by Rajindra Hospital, Patiala, Ex.C-5; prescription slip dated 18.11.2017 issued by Global Eye Hospital Ex.C-6; order dated 11.05.2018 Ex.C-7 and guidelines of "Triamcinolone Acetonide Vial" Ex.C-9. Opposite party No.1 tendered in evidence affidavit of Dr. Rajinder Kumar as Ex.OP-1/1, along with copy of Inquiry Report dated 01.02.2018 Ex.OP- 1/2. Opposite party No.2 tendered in evidence his own affidavits as Ex.OP-2/1 to Ex.OP-2/3, along with copies of documents i.e. "Professional Indemnity-Doctors Policy Schedule" Ex.OP-2/4, Certificate of Registration Ex.OP-2/5 and Degree of Bachelor of Medicine and Bachelor of Surgery Ex.OP-2/6. Opposite party No.3 tendered in evidence copy of Professional Indemnity-Doctors Policy Schedule" as Ex.OP-3/1 only. The District Commission, after going through the record and hearing learned counsel for the parties, allowed the complaint, vide impugned order 19.08.2019, in the following terms:
"As a result of the above discussion, present complaint is allowed. It is not out of place to mention here that loss of vision suffered by the complainant cannot be compensated by terms of money. However, a token compensation in this regard may heal serious wounds of the complainant which will remain whole of her life. So, the opposite party No. 3 is directed to pay ₹8,00,000/- (Eight Lacs Only) to the complainant as compensation for permanent loss of vision of left eye and partial loss of vision of right eye of the complainant due to the negligence of the opposite party No. 2 which caused mental tension, harassment and pain to the complainant for whole of her life. The opposite parties No. 1 and 2 are directed to pay ₹25,000/- (Twenty Five Thousand Only) as consolidated amount of compensation to the complainant for mental tension, harassment and costs of litigation. The opposite parties No. 1 First Appeal No.16 of 2020 11 and 2 are also directed to deposit ₹5,000/- (Five Thousand Only) as costs in the Consumer Legal Aid Account maintained by this Forum. Compliance of order be made within the period of 30 days from the date of the receipt of the copy of this order, failing which the opposite party No. 3 is directed to pay the amount of ₹8,00,000/- (Eight Lacs Only) along with interest at the rate of 6% per annum from the date of order till actual realization. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance."
Hence, the present appeals.
Contentions of the Parties
12. We have heard learned counsel for the parties, except respondent No.2/opposite party No.1, as none appeared on its behalf at the time of arguments. We have also carefully gone through the written arguments submitted on behalf of appellant/opposite party No.2 and respondent No.1/complainant and records of the case.
13. The written arguments submitted on behalf of appellant/opposite party No.2 are on the lines of the reply to the complaint filed by him before the District Commission as well as the grounds of appeal. The sum and substance of the oral and written arguments is that on 11.11.2017, the complainant had consulted him after being sent by the Emergency Medical Officer. After diagnosing the complainant with an old scar/Keloid on the right side of the dorsum of her nose, opposite party no.2 prescribed her prophylactic Antibiotics, Anti-inflammatory medications and also advised her to apply ointment over the scar/Keloid. She was asked to get an X-ray of the nasal bone. After seeing the X-ray, opposite Party No. 2 discussed the treatment options for Keloid on her nose. There are two possible ways of treating Keloids; one is surgical excision and the other is First Appeal No.16 of 2020 12 injecting the Keloid with a steroid. Surgical excision of Keloid may lead to scar formation or recurrence or disfigurement of the nose. Thus, injecting Keloid with triamcinolone is the first line of treatment and the same is considered to be standard medical protocol for treatment of Keloids. Triamcinolone comes with different brand names and the most common is 'Kenacort'; which is manufactured by Abbott. It is further contended that Keloids are raised overgrowths of scar tissue that occur at the site of skin injury. They occur where trauma, surgery, blisters, vaccinations, acne or body piercing have injured the skin. Less commonly, Keloids may form in places, where the skin has not a visible injury. Keloids differ from normal mature scars in composition and size. Some people are prone to Keloid formation and the same may develop them in several places. These are more common in young women, usually with pierced ears.
14. It is further contended that after understanding the pros and cons of both the procedures, the complainant desired to have the Keloid managed by injecting it with intralesional triamcinolone (Kenacort) and she was advised to come on 17.11.2017 to the Operation Theatre (OT) for injecting triamcinolone intra-lesionally. It is further contended that on 17.11.2017, the complainant came to Civil Hospital, Barnala for treatment of Keloid and her written and informed consent, Ex.C-3, was duly obtained before taking her into the OT for injecting the Keloid with Kenacort intralesionally. Prior to injecting the Keloid with Kenacort, opposite Party No. 2 had given a test dose of 0.1 ml. of Kenacort; to which the patient showed no reaction. Thereafter, First Appeal No.16 of 2020 13 the Keloid was injected with 0.5 ml. of Kenacort under all aseptic conditions with due precautions. This fact is apparent from the perusal of Admission Record at page No. 59 of the District Commission's record (Ex.C-3). In the literature, Annexure A-5 (Page 71, 71A of appeal), given on the vial of injection Kenacort, it is specifically mentioned "administration of Kenacort injection intraocularily or into the nasal turbinates is not recommended". Further, review article by William J Moss et al titled as "Intranasal steroid injections and blindness: our personal experience and a review of the past 60 years"
mentions that Triamcinolone injections can be injected into inferior turbinates and nasal polyps. The visual complication rate even where they are used in intranasal turbinates is as low as 0.003%. This complication rate of 0.003% refers to 3 events. All these three are self-
resolved spontaneously and do not result in any permanent visual deficits. It means that even if Kenacort is injected into the inferior turbinate's of the nose, even then it is extremely safe.
15. It is further contended that after injecting the Keloid located on the right side dorsum of the nose with Kenacort 0.5 ml (triamcinolone), the complainant complained of loss of vision in the left eye and headache and she had also two episodes of vomiting. The injection 'Kenacort' was administered in the Keloid on the dorsum of right side of the nose whereas the patient's left eye was affected. It means that contra-lateral side eye got affected. Loss of vision is a rare but a known complication associated with injecting Kenacort (Triamcinolone). In medical literature, there have been few reported First Appeal No.16 of 2020 14 cases of such a complication arising after administration of triamcinolone worldwide. However, the complainant was immediately admitted in Emergency Ward of the Civil Hospital, Barnala and was administered IV Fluids, injection 'Avil' and Hydrocort/Efcorlin. She was also examined by the Ophthalmologist at Civil Hospital, Barnala. After stabilizing the complainant, she was referred to higher centre i.e. Rajindra Hospital, Patiala on 17.11.2017 for taking eye/neurosurgical opinion. According to the complainant, despite number of tests having been recommended to her at Rajindra Hospital, Patiala, no prescription slip was issued to her and she was checked by the Eye Specialist thereat only on 18.11.2017. However, Rajindra Hospital, Patiala has not been made party to the complaint, despite the fact that as per record of Rajindra Hospital dated 17.11.2017, the vision of right eye of the complainant was noted to be slightly positive. However, no adverse finding has been recorded qua the left eye. On the same sheet, the Junior Resident of the Eye Department has recorded the vision of Left eye as PL(+). Further, the following two queries have been recorded:
"?? Acute drug reaction" and "??CVA".
It means that the doctor at Rajindra Hospital considered that there could have been an acute drug reaction or a CVA (Cerebro-Vascular Accident). These facts are apparent from the perusal of backside of Ex.C-2 at page No. 48 of the record of the District Commission.
16. It is further contended that the complainant consulted Global Eye Hospital, Patiala where she was diagnosed as a case of First Appeal No.16 of 2020 15 CRAO (Central Retinal Artery Occlusion) in the left eye and following advice was given:
"Left Eye Explained Prognosis. Ocular Massage Cardiology Consultation."
The prescription of Global Eye Hospital is Ex.C-6 at page No.65 of the District Commission's record.
17. It is further contended that on a complaint moved by husband of the complainant, an inquiry was conducted by the Civil Surgeon, Barnala; who obtained opinion from Global Eye Hospital, Patiala where patient underwent treatment. Global Eye Hospital specifically stated that there was no negligence in the treatment rendered by opposite party No.2 to the complainant. As the complainant was not satisfied with the same, so opinion was also sought from PGIMER, Chandigarh. After obtaining the opinion from the PGIMER, Chandigarh, the SMO in his report dated 01.02.2018, Ex.OP-1/2, held that there was no negligence on the part of opposite party No.2 and whatsoever the complainant had suffered from is a known complication. The District Commission has also ignored the said opinion.
18. It is further contended that earlier, the complainant filed a complaint before District Commission, Barnala on 20.07.2018, in which she had referred to the Keloid/scar as a boil on the nose; whereas both boil and Keloid are different entities. The complainant has nowhere stated in the complaint as to what was required to be done and what was not done. She has vaguely stated that "the manufacturer of the said injection does not recommend for injection around/into the First Appeal No.16 of 2020 16 eye or certain parts of the nose due to risk for blindness or damage to the eye(s)."
19. It is further contended that the District Commission after noticing the various judgments in a very cryptic manner, held that the injection was given beyond the safe area. However, the alleged safe area is nowhere defined in the impugned order. There is no evidence on record to show that opposite party No.2 should not have injected Kenacort (Triamcinolone) on the dorsum of the nose.
20. It is further contended that the perusal of Medical Literature, Ex.C-9, pertaining to injection Kenalog manufactured by Bristol-Myers Squibb Co. shows that the said brand was not used in the case of the complainant. It is mentioned that "This medication is not recommended for injection around/into the eye or certain parts of the nose due to risk of blindness or damage to the eye(s). Consult your doctor for more details." It is further contended that the parts of nose, where Triamcinolone is not to be injected, are not mentioned. In the literature accompanying the vial of injection Kenacort, it is specifically mentioned "administration of Kenacort injection intraocularily or into the nasal turbinates is not recommended". Rather, it shows that it can be safely given in the Keloid intralesionally. The specified areas i.e. intraocularily or the nasal turbinates were not injected with the injection Kenacort. Therefore, opposite Party No. 2 cannot be held liable for the complications arisen from administration of injection Kenacort intralesionally into the Keloid on the right side of dorsum of the nose.
First Appeal No.16 of 2020 17
21. It is further contended that the District Commission has also totally misconstrued the words "??Acute drug reaction" written by a doctor at Rajindra Hospital to hold that the loss of vision in the left eye of the complainant was a result of drug reaction. In fact the words "??Acute drug reaction" do not indicate that the doctor at Rajindra Hospital, Patiala had concluded that there was a drug reaction but had merely kept a different cause for an adverse result. "??Acute drug reaction" has also been misconstrued by the District Commission to hold that the complainant was allergic to the injection Kenacort (Triamcinolone). It also ignored the fact that the injection Kenacort (Triamcinolone) was administered after giving test dose, as mentioned in the record of Civil Hospital, Barnala at page-59 of the District Commission's record; which has been relied upon by the complainant herself.
22. It is further contended that the judgments relied upon by the complainant in support of her claim for enhancement of the claim do not support of her case and are distinguishable. Opposite Party No.2 also relied upon Medical Literature i.e. Scott-Brown's Otorhinolaryngology, Head and Neck Surgery Volume 3 Chapter 208 titled as "Keloids, Hypertrophic Scars and Scar Revision". As per page-2893 of this book under the heading "Intralesional Steroids", it is proved that the steroids are frequently used in the treatment of keloids and have shown response rate of 30%-100%. The use of intralesional steroids found that 88% of keloids demonstrated measurable First Appeal No.16 of 2020 18 improvement following treatment. It is mentioned in the said Book as follows:
"INTRALESIONAL STERIODS:
Intralesional steroids are frequently involved in the treatment of keloids both alone and as an adjunctive modality. Studies on the use of steroids alone to treat keloids have shown 'response' rates of 30-100 percent. In most studies, 'response' indicates an improvement in one or more measurable features of the keloids and is not synonymous with the resolution of the lesion. One of the earlier studies to report the use of intralesional steroids found that 88 percent of keloids demonstrated measurable improvement following treatment. Parameters such as size and elevation were improved along with patients' subjective complaints of pruritus and discomfort. In a prospective trial of 52 patients treated with intralesional steroids alone or in conjunction with excision, recurrences were seen in over 50 percent of patients followed for at least five years."
23. It is lastly contended that the complainant was treated as per standard medical protocols and there is no medical negligence or deficiency in service on the part of opposite party No.2. Therefore, the impugned order is liable to be set aside, by way of allowing the appeal filed by appellant/opposite party No.2. In support of his contentions, learned counsel for appellant/opposite party No.2 relied upon following cases:
i) Vinod Jain v. Santokba Durlabhji Memorial Hospital, (2019) 12 SCC 229; and
ii) Union of India v. Essel Mining & Industries Ltd., (2005) 6 SCC
675.
24. The written arguments submitted on behalf of respondent No.1/complainant (appellant in FA No.793 of 2019) are on the lines of the averments made in complaint. The sum and substance of oral and written arguments is that at the time of admission of the complainant in First Appeal No.16 of 2020 19 Rajindra Hospital, Patiala, it was duly noted that the complainant had suffered sudden loss of vision due the acute drug reaction i.e. administration of injection Triamcinolone 0.5 ml. by opposite party No.2. As per guidelines issued by the manufacturer of the said injection, the same was not to be injected around/into the eye or certain parts of the nose, due to which the eyes may be damaged or the blindness may occur.
25. It is further contended that the District Commission rightly held opposite party No.2 medically negligent while treating the complainant. However, the compensation awarded is meagre and the same is liable to enhanced, keeping in view the prayer made by the complainant in the complaint, as the complainant has lost her vision of her left eye and partial loss of her right eye at the hands of opposite party No.2. The appeals filed by the opposite parties are liable to be dismissed and the compensation is required to be enhanced. In support of his contentions, learned counsel for the complainant has relied upon following cases:
i) Mustafabhai Ibrahimbhai Salar v. Samved Hospital & Ors.
2019 (3) CLT 445 (NC); and
ii) Ankush Vithoba Dhokale v. Dr. Anant Dinkar Bhosale & Anr.
2004 (4) CPJ 316 (Maharashtra State Commission).
26. Learned counsel for opposite party No.3 (appellant in FA No. 648 of 2019) has contended that opposite party No.2 was insured with it, vide "Professional Indemnity-Doctors Policy Schedule" Ex.OP- 3/1; which was valid from 14.10.2017 to 13.10.2018. However, opposite party No.3 is not liable to pay any compensation to First Appeal No.16 of 2020 20 complainant, as opposite party No.2 was not working as Medical Officer at Civil Hospital, Barnala, when the said policy was issued along with terms and conditions. Even if opposite party No.2 is found negligent in his professional duties, even then opposite party No.3 is not liable to pay any compensation, as per terms and conditions of Insurance Policy. However, there is no medical negligence on the part of opposite party No.2 while treating the complainant. Other arguments raised on behalf of opposite party No.3 are on the lines of arguments raised on behalf of opposite party No.2. It is contended that the impugned order is liable to be set aside.
Consideration of Contentions
27. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties.
28. Opposite parties No.1 & 2 took the plea that no consideration was ever paid by the complainant for her treatment at Civil Hospital, Barnala and, thus, she does fall under the definition of 'consumer'. It needs to be mentioned that the complainant has specifically averred that prescribed slip dated 11.11.2017, Ex.C-1, was issued after charging ₹10/- and on 17.11.2017 opposite party No.2 injected 0.5 ml, of "Triamcinolone" in her nose, by charging a sum of ₹200/-, but no receipt was issued for the same. Be that as it may, this issue is no more res-integra. Hon'ble Supreme Court in Smt. Savita Garg Vs. The Director, National Heart Institute 2004 (10) CPSC 1031 while dealing with the issue of 'free of charge' as well as 'paid' treatment, held in Para No.14 as under:-
First Appeal No.16 of 2020 21
14. Therefore, as per the English decisions also the distinction of 'contract of service' and 'contract for service', in both the contingencies the courts have taken the view that the hospital is responsible for the acts of their permanent staff as well as staff whose services are temporarily requisitioned for the treatment of the patients. Therefore, the distinction which is sought to be pressed into service so ably by learned counsel cannot absolve the hospital or the institute as it is responsible for the acts of its treating doctors who are on the panel and whose services are requisitioned from time to time by the hospital looking to the nature of the diseases. The hospital or the institute is responsible and no distinction could be made between the two classes of persons i.e. the treating doctor who was on the staff of the hospital and the nursing staff and the doctors whose services were temporarily taken for treatment of the patients.
On both, the hospital as the controlling authority is responsible and it cannot take the shelter under the plea that treating physician is not impleaded as a party, the claim petition should be dismissed. In this connection, a reference may be made to a decision of this Court in the case of Indian Medical Association v. V.P. Shantha & Ors. There the question had come up before this Court with regard to the provisions of the Consumer Protection Act, 1986 vis-a`-vis the medical profession. This Court has dealt with all aspects of medical profession from every angle and has come to the conclusion that the doctors or the institutes owe a duty to the patients and they cannot get away in case of lack of care to the patients. Their Lordships have gone to the extent that even if the doctors are rendering services free of charge to the patients in the Government hospitals, the provisions of the Consumer Protection Act will apply since the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from the taxes paid by the tax payers. Their Lordships have dealt with regard to the definition of "service" given in Section 2(1)(o) of the Consumer Protection Act, 1986, and have observed as follows:
" The service rendered free of charge to patients by doctors/ hospitals whether non-Govt. or Govt. who render free service to poor patients but charge fee for services rendered to other patients would, even though it is free, not be excluded from definition of service in Section 2(1)(o). The Act seeks to protect the interests of consumers as a class. To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are the people who need the protection more. It is difficult to conceive that the legislature intended to achieve such a result. Another consequence of adopting a construction, which would restrict First Appeal No.16 of 2020 22 the protection of the Act to persons who can afford to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of services rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons who are in a position to pay for such service while the standard and quality of such service would be inferior for person who cannot afford to pay for such service and who avail the service without payment. Such a consequence would defeat the object of the Act. All persons who avail the services by doctors and hospitals who give free service to poor patients but charge fee for others, are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients who are not in a position to bear the charges are met out of the income earned by such doctors and hospitals from services rendered to paying patients. The Government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treat the Government hospitals differently. In such a situation the persons belonging to "Poor class" who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the "paying class". Service rendered by the doctors and hospitals who render free service to poor patients and charge fees for others irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression "service" as defined in Section 2(1)(o) of the Act."
29. Identical issue arose in the case of Pravat Kumar Mukherjee Vs. Ruby General Hospital & Ors. II (2005) CPJ 35 (NC); wherein, after discussing the entire law on the subject, the Hon'ble National Commission held that even if no payment is made, still the complainant falls under the definition of the "consumer".
30. In view of the law laid down in the above noted cases, the persons, availing treatment from Government Hospitals free of charge, are to be held to be beneficiaries-consumers. As such, even if it is presumed that no consideration was received by opposite parties No.1 First Appeal No.16 of 2020 23 & 2 from the complainant, even then she certainly falls within the definition of the "consumer", as defined in the Act, as the treatment undertaken by opposite party No.2 at opposite party No.1-Hospital squarely falls within the definition of "service" as defined in Section 2 (1) (o) of the Act.
31. Now, we would like to discuss the "Informed Consent" part. Informed Consent
32. It is now well settled preposition of law that medical practitioners/Doctors must take consent before performing any procedure/operation, which is a legal requirement as per Regulation 7.16 of Indian Medical Council (Professional, Conduct, Etiquette and Ethics) Regulations, 2002, which reads as under:-
"7.16 Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed."
It is not merely a formality. In medical negligence cases, it is most relevant when such cases come up for judicial scrutiny. Except in medical emergency cases informed consent must be taken before any investigation, procedure or treatment. In medical emergency life saving treatment can be given even in absent of consent. There are three broad categories at which stage the Doctor and the patient have role to play. The following are the main categories:-
A) Diagnosis: means medical condition/status of the patient;First Appeal No.16 of 2020 24
B) Advice: treatment options reasonable
alternatives and risk attending on various
options; and
C) Treatment.
The material difference between these aspects of medical care lies in the degree of passivity on the part of the patient. The diagnosis and the treatment are in the domain of the Doctor and the patient is a passive participant. When the advice is given to the patient, he or she assumes an active role. At that stage the Doctor's function is to empower and enable the patient and his or her family members to make a decision by giving them relevant, sufficient and material information relating to the diseases/procedures to be performed.
The patient must make choices and decisions in this regard as and when he or she is given option for treatment, its consequences, risks and benefits. The Doctor must explain to the patient why this particular treatment is necessary and appropriate for him or her. The prognosis and what may happen if treatment is delayed or not given should also be informed to the patient and his or her attendants. Failing to furnish correct sufficient information when obtaining consent may amount to breach of duty of care and resultant negligent failure to inform the patient. In non-emergency cases, the patient and his or her attendants must be given reasonable time to consider the information to make a decision. The allowing of cooling off period is with a purpose to give time to the patient to think over the decision or take any other advice so that patient and his or her family do not feel pressurized or rushed to First Appeal No.16 of 2020 25 sign such consent documents. On the day of surgery/procedure, the patient may be under strain, mental stress or under influence of the pre-procedure drugs, which may hamper his or her decision-making ability. The Doctor performing any procedure must obtain patient's consent and if he or she is adult, no one else's consent is valid except in case of the wife where the consent of the husband is also required. The consent should be properly documented and preferably witnessed, so that the consent becomes legally acceptable. The video recording of the informed consent process may also be done with prior consent of the patient for the same, so that the patient or his/her attendants may not deny that they have been explained about the risk involved in the procedure and the treatment.
33. Before dealing with the merit of the case, we would like to discuss with regard to Bolam Test. The said Test was articulated in the year 1957. At that point of time, emphasis was not on the principle of autonomy; rather on the principle of beneficence. The Doctor was considered to be the best person and the patient was kept in dark with regard to the risks and alternative treatment relating to the illness. Now there is a seismic shift in medical ethics and societal attitude towards the practice of medicine. Furthermore, the Medical Council had framed statutory regulations regarding the professional conduct, etiquette and ethics. This warrants legal tests to adjudicate the advice aspect of Doctor-patient relationship. The MCI Regulations, 2002, referred to above, as amended up to date, First Appeal No.16 of 2020 26 clearly stipulates the need to respect the patient's autonomy and Doctor's obligation to adequately inform the patient for self- determination. Nature of the patient-Doctor relationship has to be examined in the light of education and access to the knowledge of ordinary citizen in the present day. In the light of these facts and statutory provisions, the "Bolam Test" can no longer be applied to a Doctor's advice to his or her patient, unless it complies with the statutory provisions. Much water has flown now a day. It is said that Bolam to Montgomery is the new journey and the U.K. Court in "Montgomery (Appellant) v. Lanarkshire Health Board (Respondent) (Scotland)" Hilary Term [2015] UKSC 11 on appeal from: [2013] CSIH 3; [2010] CSIH 104 has almost diluted the effect of Bolam Test in view of the present day advancement and availability of information to the patients and their attendants. We would like to refer in brief from Bolam to Montgomery, how the law of consent has developed.
34. Bolam's principle was based upon a case of Mr. Bolam who suffered from serious injury as a result of electroconvulsive therapy (ECT) in 1954. He sued the Hospital Management Committee for negligence for not giving him a muscle relaxant, not restraining him, and not warning him about the risks involved. It was held in Bolam's case that a doctor, who had acted in accordance with a practice accepted at the time as proper by a reasonable body of medical opinion skilled in the particular form of treatment in question, was not guilty of negligence merely because there was a First Appeal No.16 of 2020 27 body of competent professional opinion, which might adopt a different technique. A defendant Doctor would still stand even if another expert witness stated that the procedure should not be performed in his way with another responsible body of medical opinion approving otherwise. In 'Bolam', the experts of both plaintiff and defendant presented evidence for the different approaches, but they all agreed that there was a firm body of medical opinion opposed to the use of relaxant drugs by balancing the risk of death of using the drug against the risk of fracture; and also a number of competent practitioners considered that there was a lesser risk of fracture with less manual control. The plaintiff's expert admitted that he could not say that a practitioner using ECT who did not give relaxants was falling below the standard of care of a competent practitioner. Although, he expressed the necessity to use some form of manual control he agreed that there was a school of thought that using more strain increased the likelihood of fracture. The expert of the plaintiff did not agree with the approach of the attending doctor of Mr. Bolam. The statement of J McNair in 'Bolam' made it clear that the doctor would not adopt a practice contrary to the substantial standard. In that case, it was held as under:-
"... a man is not negligent ... merely because there is a body of opinion who would take a contrary view ... does not mean that a medical man can ... carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion."
In Sidaway's case although failing to disclose 1-2% risk of damage of spinal cord was not held by a majority House of Lord majority First Appeal No.16 of 2020 28 confirming the application of Bolam, there were marked differences in the Lords' approaches in determining the relevant standard of care. "'Bolam" test should be applied to all aspects of duty of care by doctors according to Lord Diplock, "To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning ... should be given, ... is as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient...". In Bolitho, ...the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice...". The Court would decide whether the view of expert witness was reasonable, responsible and respectable and not dismissed as illogical, "...it cannot be suggested that it was illogical for Dr. D, a most distinguished expert, ... in his view, was a small risk of total respiratory collapse rather than to submit patient to the invasive procedure of intubation." "...judge before accepting a body of opinion as being reasonable, responsible and respectable, will need to be satisfied that, in forming their views, the experts have directed their mind to the question of comparative risk and benefits and have reached a defensible conclusion on the matter." The protection given to medical doctors by 'Bolam' was then not interpreted as absolute and the body of medical opinion ought to be respectable and responsible and experienced in the field. First Appeal No.16 of 2020 29
35. A careful dissection of the 'Bolam' case enables us to appreciate the logical approach in reaching a judicial decision that is justifiable, fair and reasonable rather than a very loose standard of medical care. In 'Montgomery', the plaintiff was not told about the risk of shoulder dystocia which would be 9-10% among mothers with diabetes. The defendant doctor agreed that there was a high risk but her reason for not discussing the risk was because the risk of grave problems for the baby resulting from shoulder dystocia was very small. In 'Montgomery' U.K. Supreme Court deviated from the earlier practice and gave a consolidated law on standard of care of Doctors with regard to duty of disclosure of information to the patient and the risk of proposed treatment and possible alternatives. After the decision of the Montgomery's case which has also described Bolam Test the Doctors are now obliged to take reasonable care to ensure that the patients are aware of any recommended treatment or any reasonable alternative or variant treatments. The convention approach of liability in the tort of negligence is defined as breach of duty in taking reasonable care of the claimant. "Negligence is the omission to do something which a reasonable man, guided upon those considerations which originally regulate the conduct of human affairs, would do...". The 'Montgomery' case has raised the standard of reasonable test as the focus is now on 'reasonable patient' rather than 'reasonable doctor". Evidently, the doctor's legal obligation to advise no longer stops at merely stating his patient's diagnoses, prognoses and his recommended treatment. This has been considered by the Singapore Court of Appeal in "Hii Chii First Appeal No.16 of 2020 30 Kok v. Ooi Peng Jin London Lucien and another" [2017] SGCA 38 in which it has been stated that "the mere provision of information is pointless if it is not accompanied by a quality of communication that is commensurate with the ability of the patient to understand the information." In the light of these facts and statutory provisions, the "Bolam Test" can no longer be applied to a doctor's advice to his patient, unless it complies with the statutory provisions. The information given to the patient has to be examined from patient's perspective. The information disclosed is not limited to the risk related information. It should include: doctor's diagnosis of the patient's condition, the prognosis of that condition with and without medical treatment, the nature of the proposed medical treatment and the risks associated with it, the alternative to the proposed medical treatment, advantages and risks of the said treatment and the proposed treatment. The doctor must ensure that information given is "in terms and at a pace that allows the patient to assimilate it", thereby enabling the patient to make informed decision.
36. Three instances, where withholding of information is justified, are as under:
a) Waiver situation: is when the patient expressly indicates that he does not want to receive further information about the proposed treatment or the alternative treatment.
b) Medical emergency: when life-saving treatment is required and the patient temporarily lacks decision-making capacity. The "Bolam test" would continue to apply.
c) Therapeutic privileges: when the patient has mental capacity, his decision-making capabilities are impaired to an appreciable degree such that doctor reasonably believes that the very act of giving particular information would cause the First Appeal No.16 of 2020 31 patient serious physical or mental harm. For example, the patient with anxiety disorder.
37. Now, we will examine, whether before giving treatment/ performing surgery, the patient/complainant or his attendants/relatives were informed about the possible complications and risks and their informed consent was taken? It is true that every operation/procedure, as small as it may be, carries wide range of risks from the most insignificant to the most serious, which may lead to fatal complications. Discussing all the complications with the patient and attending relatives is a necessity, so that he/she/they may make up his/her/their mind before undergoing the surgery.
38. Before commencing the treatment or procedure, now a days, an 'Informed Consent' in nutshell is required to satisfy the following conditions:
"The consenting party i.e. patient or his/her family members must be aware of the nature and extent of complications and risks of the surgery. The consenting party must have understood the nature and extent of the complications and risks and the consenting party or his/her family members must have consented to the harm and assumed risk. Comprehensive explanation of the possible complications and risks and the extent of entire procedure and transaction, inclusive of all its consequences, must be explained to the patient or his/her family members."
39. In the present case, the complete details of medical records are missing. Even the Consent Form at page-57 of the District Commission's record is a stereotype document. There is no mention of the treatment and it is also not signed by the doctor, nor any affidavit of the doctor, who explained the entire facts to the First Appeal No.16 of 2020 32 complainant, has been annexed. Even no date is put on it. Risks and complications of the injection have also not been disclosed in it. The same can also not be termed as a valid consent. Thus, it is proved that neither any proper Informed Consent of the patient/attendants was taken, nor the risks and complications were ever informed before administering the injection. Hon'ble National Commission in "Sitaram Bhartia Institute of Science and Research v. Vidya Bhushan Jain and Ors." 2017 (2) CPR 609 (NC), held that before undertaking the surgery, the doctor is required to take the 'Informed Consent' of the patient or his/her relatives. It was held in Para No.12 as follows;
"12. Now, the question arises whether before undergoing the procedure of Central Venous Line, the doctors of the opposite party hospital were under obligation to obtain consent from the respondent complainant or his family members? In the matter of Samira Kohli Vs. Dr. Prabha Manchanda & Another 1 (2008) CPJ 56 (SC), Hon'ble Supreme Court has extensively dealt wisth the concept of consent to be taken from the patient or his family members. In the said case, it has been held that patient has an inviolable right in regard to his body and he has a right to decide whether or not he should undergo the particular treatment or surgery. It was further held by the Hon'ble Supreme Court that unless the procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without the consent of the patient. In the instant case, as discussed above the insertion of catheter by Central Venous Line procedure being an invasive procedure carrying certain risk of complication including the injury to the jugular vein or bursting of the blood cells, the concerned team of doctor was legally required to obtain the consent of the patient."
40. Accordingly, we are of the view that informed consent was required to be taken by opposite parties No.1 & 2 before administering First Appeal No.16 of 2020 33 the injection to the complainant. Since eyesight of both eyes of the complainant has been damaged after administration of the said injection, so, the valid informed consent of the complainant before administering the injection was must. The side effects of said injection were never informed by opposite parties No.1 & 2 to the complainant. Such complications should have been informed/discussed before administration of the said injection, but this has not been done in this case. Since no proper consent of the complainant was taken before administering the said injection, as a result of which the eyesight of left the eyes of the complainant has been completely damaged and that of right eye has been damaged to some extent, so the same amounts to deficiency in service and medical negligence on the part of opposite parties No.1 & 2.
Medical Negligence
41. It is an admitted fact that the complainant, who was suffering from a boil on her nose, had approached opposite party No.1-Hospital on 11.11.2017 and prescribed slip, Ex.C-1 (colly.) was issued after charging ₹10/-. Opposite party No.2-Dr. Gagandeep Tathgur checked-up her and prescribed some medicines and advised x-ray; which was got conducted by the complainant from Sanjha Aasra Charitable Health Care Centre on 15.11.2017. Then on 17.11.2017, she was subjected to treatment of keloid on the nose, which is clear from the medical record of opposite party No.1-Hospital, Ex.C-2 and Ex.C-3 (colly.). For treatment of keloid, multiple options are available, First Appeal No.16 of 2020 34 such as Elective Surgical Procedures, which include Lasik Surgery and CO2 Laser Resurfacing and Intralesional Steroid. The first thing was to understand, which technique was the best indicated in the present case. This was required to be ascertained before the procedure to be followed for treating the keloid. Mature keloid contains abnormally large collagen bundles, that look pale glassy pink in appearance on halmatoxlin and eoin staining. Keloid hypertrophic scar sometimes appears to be very similar in nature. It has not yet been determined, what results into their formation. However, there is difference between keloid and hypertrophic scars. The boil on the nose of the complainant was treated on 17.11.2017 by way of intralesional steroid i.e. Kenacort (Triamcinolone). As per the evidence on record, 0.5 ml. Triamcinolone was administered into the boil, technically known as keloid. Immediately after the administration, the complainant started complaining of headache and had about two episodes of vomiting and there was sudden loss of vision in her left eye. Immediately after giving injection of Kenacort (Triamcinolone) 17.11.2017 at Civil Hospital, Barnala, it was observed as under:
"?? Acute drug Reaction ??CVA not defined superiorly + nasly.
At that stage, the complainant had a very low vision in the left eye i.e. sudden loss of vision in the left eye and there was also affect on the right eye, as there was some loss of vision in that eye too. This had happened in opposite party No.1-Hospital under the supervision of opposite party No.2. These facts are not in dispute. At that stage, at about 3.15 P.M., the complainant, Veerpal Kaur, was referred to First Appeal No.16 of 2020 35 Rajindra Hospital, Patiala for eye/neurological opinion. It is her case that that she was given the treatment on 17.11.2017 at Rajindra Hospital at late night hours, but the slip was issued only on
18.11.2017. At Rajindra Hospital, Patiala, the doctor while diagnosing had mentioned the possibility of acute drug reaction and referred the complainant to ENT Department. They also mentioned the possibility of Cerebro-vascular Accident (CVA), which was not defined, as mentioned above, and also prescribed various other tests. Although, it is mentioned in the medical record that the test dose of Triamcinolone 0.1 ml. given at 12.30 P.M. showed no reaction. The perusal of page- 59 of District Commission's record reveals that there are cuttings at the dose and word "after". Thereafter, it has been mentioned that the test dose was given. The test dose should have been mentioned in the medical record at the first instance and, thereafter, the actual dose administered should have been mentioned. The cutting clearly shows the tampering in the medical record. Even otherwise, opposite party No.2 failed to explain how and why this has happened, when the injection Triamcinolone caused the reaction to such a severe extent just after 12 minutes; which damaged the complete eyesight of left eye of the complainant. There is some damage to her right eye too. It is true that Triamcinolone can be given for treatment of keloid lesions and it has a better prognosis than surgical removal. Surgical removal leads to re-occurrence and is otherwise also expensive. The data available at page-71, 71A, 72 and 83 of the appeal suggests that there is no recorded side effect of the medicine. Nowhere, it is mentioned First Appeal No.16 of 2020 36 that it cannot be given around the nose. However, as per the medical literature, the same cannot be given near to the eyes, specifically in the nose nasal turbinates. It is also clearly noted that intraocular injection of Triamcinolone is not recommended. That is altogether different from injecting into keloid. The prohibition to use Triamcinolone is to inject into the nasal turbinates. Nasal turbinates are not in the dorsum of nose. Turbinates are located in the nasal cavity. The impact, if any, will be on the nerve and not on the artery, as per the side effects sheet. It can be seen as an idiosyncratic effect. But, all this is required to be explained by opposite parties No.1 & 2.
42. It also needs to be noticed that many a times, the side effect of intralesional steroid, i.e. kenacort corticosteroid and Triamcinolone, has active ingredients. It can also otherwise affect, but the copy of 'Triamcinolone Acetonide Vial' has also been produced on District Commission's record as Ex.C-9, in which brand name is mentioned as "Kenalog" and generic name as "Triamcinolone Acetonide". About use of this medicine, it is mentioned as under:
"The injection site, schedule, dosage, and length of treatment are based on your medical condition and response to treatment. Do no inject this medication into a vein (intravenously) or into the spine (epidurally). This medication is not recommended for injection around/into the eyes or certain parts of the nose due to the risk for blindness o damage to the eye(s). Consult your doctor for more details."
The medication of Triamcinolone reveals that the same is not recommended to be injected near the eyes/into the eyes due to risk of blindness or damage to eyes. In this case, certainly after First Appeal No.16 of 2020 37 administration of Triamcinolone, left eye of the complainant has been damaged to the maximum extent and right eye to minor extent. In these circumstances, it is proved that injection has been given to a part of nose near to the left eye, but location of Keloid is not specifically mentioned in the medical record; which was specifically prohibited. Onus was upon opposite party No.2 and the principle of res-ipsa-loquitur (things speak itself) applies in the present case, because the exact location has also not been defined in the medical record, where the keloid was existing and distance from the eyes etc. has also not been mentioned. In these circumstances, we are of the view that opposite parties No.1 & 2 failed to rebut the evidence led by the complainant and they are guilty of committing deficiency in service and medical negligence.
43. Hon'ble National Commission in First Appeal No.101 of 2016 (Pankaj R. Toprani & 3 Ors. V. Bombay Hospital and Research & Medical & 2 Ors.) decided on 04.07.2019 observed that it is the duty of medical officer to take care of the patient whenever patient is under the treatment of doctor. If there is any breach in duty, resulting in injury or damage to the life of the patient, the Doctor is liable for the same.
44. In another case i.e. F.A. No.1169 of 2014 (D. Uma Devi v. M/s Yashoda Hospital & Others), decided on 11.04.2016, the Hon'ble National Commission held as under:
"11. In this context, we rely upon the judgment in Laxman Balkrishna Joshi (Dr.) v. Dr. Triambak Bapu Godbole, AIR 1969 SC 128, it was held that a First Appeal No.16 of 2020 38 doctor, when consulted by a patient, owes him certain duties. It was held as under:
"A person, who holds himself out ready to give medical advice and treatment, impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient, owes 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 the administration of that treatment."
In the present case, the doctors at OP hospital, are qualified but, failed in their duty of care during ERCP procedure.
45. Ratio of aforesaid authorities is that when a doctor is consulted by a patient, he/she owes certain duties, i.e. 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 the administration of that treatment. However, it is clearly proved beyond any doubt that opposite party No.2-doctor has failed to perform the duties, as emphasized in the aforesaid judgment, before and after administering the aforesaid injection to the complainant.
46. Thus, keeping in view the above discussion and the evidence on record, preponderance of probability and inferences, we hold that the complainant has been able to prove her case of deficiency in service and medical negligence against opposite parties No.1 & 2. It is true that medical negligence cases do sometimes involve questions of factual complexity and difficulty and may require the evaluation of technical and conflicting evidence. However, in the present case, the complainant has been able to discharge the onus of proving on a balance of probabilities, the medical negligence and First Appeal No.16 of 2020 39 deficiency in service averred against opposite parties No.1 & 2. Thus, it stands clearly proved that opposite parties No.1 & 2 were grossly negligent while administering aforesaid injection to the complainant, as a result of which the eyesight of left eye of the complainant has been damaged the eyesight of right eye has also been affected, when there was no problem in her eyes. As a result of damage to eyes, the complainant is unable to perform human functions properly, as compared to a human having both sound eyes. She has lost most of the joy of life and is deprived of wholesome physical activity on account of damaged eyesight. She is required to get herself checked up from the doctors for whole of her life at particular intervals, in order to avoid complications, by incurring extra expenses for this purpose.
47. It needs to be noticed that opposite party No.1-Civil Hospital has accepted the liability, as no appeal has been preferred by it against the impugned order. Even otherwise, opposite party No.2 was performing the duties on behalf of opposite party No.1-Hospital, who is vicariously liable for the acts of opposite party No.2, being its employee. The plea of opposite party No.3-Insurance Company that it is not liable, on the ground that when the insurance policy, Ex.OP-3/1, was issued, opposite party No.2 was not working as Medical Officer at Civil Hospital Barnala, is not acceptable. It needs to be mentioned that opposite party No.2-Dr. Gagandeep Tathgur was duly insured with opposite party No.3-Insurance Company, vide "Professional Indemnity Doctors Policy Schedule, Ex.OP-3/1, which was valid from 14.10.2017 to 13.10.2018. The indemnity limit under the said Insurance Policy was First Appeal No.16 of 2020 40 ₹10,00,000/-. The complainant was administered the aforesaid injection by opposite party No.2 during the validity of this Insurance Policy and he has been held liable. Therefore, opposite party No.3 is liable to indemnify opposite party No.2 to the extent of sum insured under this Insurance Policy, subject to its terms and conditions. Thus, there is no merit in the appeals (FA No.16 of 2020 and FA No. 648 of 2019) preferred by opposite parties No.2 & 3. However, the complainant has also preferred the appeal (FA No.793 of 2019), seeking enhancement of compensation already awarded by the District Commission. District Commission has awarded compensation of ₹8 lac for loss of vision, besides ₹25,000/- on account of mental tension, harassment and litigation expenses. Opposite parties No.1 & 2 have also been directed to deposit a sum of ₹5,000/- in the Consumer Legal Aid Account of the District Commission. The compliance of the order was directed to be made within 30 days from the receipt of copy of the impugned order, failing which opposite party No.3 was directed to pay interest at the rate of 6% per annum on the aforesaid amount of ₹8 lac. In view of the evidence, facts and circumstances discussed above as well as damage to vision of both the eyes of the complainant, the compensation needs to be enhanced. Loss of vision otherwise cannot be compensated. However, in view of the facts and circumstances, we want to enhanced the compensation from ₹8 lac to ₹9 lac, along with interest at the rate of 7% per annum from the date of filing of the complaint till realization; which is just and First Appeal No.16 of 2020 41 fair compensation in the present case. The conditional order for payment of interest is set aside. Rest of the impugned order is upheld. Expert Opinion
48. So far as the reliance of opposite parties No.1 & 2 on the Investigation Report dated 01.02.2018 given by Senior Medical Officer (SMO), Civil Hospital, Barnala, Ex.OP-1/2, is concerned, it needs to be mentioned that on the complaint filed by the husband of the complainant, SMO, Barnala sought opinion from Global Eye Hospital, Patiala, where the complainant was referred from Rajindra Hospital, Patiala. Dr. Harsh Inder Singh, M.D. (Ophthalmology), Retina Specialist, PMC No.37831 of Global Eye Hospital, Patiala gave following opinion:
"In Ref. to your letter No.3332 dated 20.12.2017. I am of the opinion that in this case there was a Central Retinal Artery Occlusion of Left Eye.
The Central Retinal Artery Occlusion may result from any of the emboll leading to obstruction of Central Retina Artery. In my opinion, there is no evidence of any negligence on the part of treating doctor."
However, husband of the complainant was not satisfied with that report and, as such, opinion was further sought from PGI, Chandigarh on 05.01.2018; who gave following opinion:
"Natasha Seth: Risk factors for CRAO are the same atherosclerotic risk factors for stroke and cardiovascular diseases... as per my knowledge, few cases of CRAO have been reported following use of steroids... carbogen inhalation and diamox stat and tds with digital massage is....."
On the basis of aforesaid extracts of the opinions given by Global Eye Hospital, Patiala and PGI, Chandigarh, it was observed in the aforesaid Investigation Report that as per medical literature, First Appeal No.16 of 2020 42 complication may arise on account of local injection of Triamcinolone, which is an infiltrated steroid and thin blood clots may block any nerve. Same thing happened in this case, as a result of which the patient suffered Central Retinal Artery Occlusion and lost eyesight. The same can also be caused by heart attack or blood clots in the nerves. It was held that there was no negligence on the part of opposite party No.1 while injecting the complainant.
49. First of all, it needs to be noticed that the alleged expert opinions given by Global Eye Hospital, Patiala and PGI, Chandigarh have not been annexed with the said report of SMO and merely some extracts thereof are mentioned. Even no affidavits of the doctors, who gave those opinions, have been filed. Furthermore, no medical record has been annexed with the Investigation Report, Ex.OP-1/2, on the basis of which both the above said experts had given the so called opinions. In the opinion given by Global Eye Hospital, Patiala, mentioned above, it is only mentioned that Central Retinal Artery Occlusion may result from any of the emboll leading to obstruction of Central Retina Artery, but no medical record or literature to hold so has been annexed. Similarly, in the opinion given by PGI also, there is no definite finding and it is only mentioned that "as per my knowledge, few cases of CRAO have been reported following use of steroids... carbogen inhalation and diamox stat and tds with digital massage is...". There are dots and blank spaces mentioned in the opinion of PGI. Therefore, the same cannot be given any weight in the absence of complete report. It is further observed in report, Ex.OP-1/2, that due First Appeal No.16 of 2020 43 to complication of administration of aforesaid injection, thin blood clots may have blocked any of the arteries. However, no cogent and convincing evidence has been led by opposite parties No.1 & 2 to prove so. Thus, it is held that the report, Ex.OP-1/2, is based on conjectures and surmises, without any supporting evidence and the same cannot be relied upon.
Quantum of Compensation
50. Now, coming to the quantum of compensation to be awarded in favour of the complainant, on account of damage to her eyes on account of the sheer medical negligence on the part of opposite parties No.1 & 2.
51. Human life is most precious. It is extremely difficult to decide on the quantum of compensation in the medical negligence cases, as the quantum is highly subjective in nature. Different methods are applied to determine compensation.
52. Hon'ble National Commission in Dr. (Mrs.) Indu Sharma (supra), observed in Paras No.53, 59 & 60 as follows:
"53. 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."
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First Appeal No.16 of 2020 44
59. Nizam Institute Case- 2009 Indlaw SC 1047:
In the Nizam Institute case 13, the Supreme Court did not apply the multiplier method. In 1990, twenty-year old Prasant S. Dhananka, a student of engineering, was operated upon at the Nizam Institute of Medical Sciences, Hyderabad. Due to medical negligence of the hospital, Prasant was completely paralysed. Compensation was claimed, and the matter finally reached the Supreme Court. The court did not apply the multiplier method and awarded a compensation of Rs. 1 crore plus interest. The court observed:
"Mr. Tandale, the learned counsel for the respondent has, further, submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method.
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60. Kunal Saha's Case (2014) 1 SCC 384 :
The Supreme Court rejected the multiplier method in this case and provided an illustration to show how useless the method can be for medical negligence cases. Hon'ble Justice Mr.V.Gopala Gowda opined that;:
"The multiplier method was provided for convenience and speedy disposal of no fault motor accident cases. Therefore, obviously, a "no fault" motor vehicle accident should not be compared with the case of death from medical negligence under any condition. The aforesaid approach in adopting the multiplier method to determine the just compensation would be damaging for society for the reason that the rules for using the multiplier method to the notional income of only Rs.15,000/- per year would be taken as a multiplicand. In case, the victim has no income then a multiplier of 18 is the highest multiplier used under the provision of Ss. 163 A of the Motor Vehicles Act read with the Second Schedule.... Therefore, if a child, housewife or other non-working person fall victim to reckless medical treatment by wayward doctors, the maximum pecuniary damages that the unfortunate victim may collect would be only Rs.1.8 lakh. It is stated in view of the aforesaid reasons that in today's India, Hospitals, Nursing Homes and doctors make lakhs and crores of rupees on a regular basis. Under such scenario, allowing the multiplier method to be used to determine compensation in medical negligence cases would not have any deterrent effect on First Appeal No.16 of 2020 45 them for their medical negligence but in contrast, this would encourage more incidents of medical negligence in India bringing even greater danger for the society at large."
53. Further, on the question of determination for the loss or injury suffered by a consumer on account of deficiency in service, the following observations by a three Judge Bench of the Hon'ble Supreme Court in Charan Singh v. Healing Touch Hospital & Ors. (2000) 7 SCC 668 are also apposite:
"While quantifying damages, Consumer Forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While warding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge."
54. Furthermore, Hon'ble Supreme Court in case R.D. Hattangadi v. Pest Control (India) (P) Ltd. (1995) 1 SCC 551 held in Para No.9 as under:
"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profits up to the date of First Appeal No.16 of 2020 46 trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit;
(iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened;
(iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
55. The complainant has claimed compensation of ₹20,00,000/-, including litigation expenses of ₹20,000/-. The age of the complainant at the time of administration of injection was just 30 years. The Hon'ble Supreme Court of India in "V. Krishnakumar Vs. State of Tamil Nadu & others" Civil Appeal No.8065 of 2009, decided on 01.07.2015 has taken the expectancy of human life to be of 70 years and further held in para No.23 as under:-
"23. Inflation over time certainly erodes the value of money. The rate of inflation (Wholesale Price Index-Annual Variation) in India presently is 2 percent as per the Reserve Bank of India. The average inflationary rate between 1990-91 and 2014-15 is 6.76 percent as per data from the RBI. In the present case we are of the view that this inflationary principle must be adopted at a conservative rate of 1 percent per annum to keep in mind fluctuations over the next 51 years.
The formula to compute the required future amount is calculated using the standard future value formula:-
n FV = PV x (1+r) PV = Present Value r = rate of return n = time period Accordingly, the amount arrived at with an annual inflation rate of 1 percent over 51 years is Rs.1,37,78,722.90 rounded to Rs.1,38,00,000/-."
56. The Hon'ble Supreme Court has also relied upon above said authority in case "Maharaja Agrasen Hospital & others Vs. First Appeal No.16 of 2020 47 Master Rishab Sharma & others" Civil Appeal No.6619 of 2016, decided on 16.12.2019, and held as under:-
"11.5.4 The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong."
No doubt, the damage/loss of eye(s) cannot be compensated in terms of money, yet in view of law laid down by the Hon'ble Supreme Court in above referred authorities, age of the complainant, who was just 30 years old at the time of administration of aforesaid injection and the totality of facts and circumstances of the case, we enhance the compensation from ₹8,00,000/- to ₹9,00,000/-, along with interest at the rate of 7% per annum from the date of filing of the complaint till realization, on account of damage to the eyes of the complainant due to sheer medical negligence and deficiency in service on the part of opposite parties No.1 & 2 and resultant mental agony, harassment, avoidable pain, sufferings caused to the complainant, including medical expenses.
57. In view of our above discussion, the First Appeal No.16 of 2020 and First Appeal No.648 of 2019 filed by opposite parties No.2 & 3 respectively are dismissed. The First Appeal No.793 of 2019 filed by the complainant is partly accepted and the impugned order is modified to the extent that the compensation of ₹8,00,000/- is enhanced to ₹9,00,000/- (Rupees Nine Lac only), along with interest at First Appeal No.16 of 2020 48 the rate of 7% per annum from the date of filing of the complaint till realization. The conditional order for payment of interest is set aside. However, it is made clear that firstly the compensation amount of ₹9,00,000/- (Rupees Nine Lac only), along with interest, shall be paid by opposite party No.3-Insurance Company and thereafter the deficit amount, if any, will be paid by opposite party No.1-Hospital and if still any amount remains to be paid, the same shall be paid by opposite party No.2. Except this modification, rest of the impugned order is upheld.
58. In First Appeal No.16 of 2020, it is reported by the learned counsel for the appellant/opposite party No.2 at the time of filing of the appeal that the appellant has already deposited ₹5,000/- in the Consumer Legal Aid Account and paid ₹25,000/- to respondent No.1/complainant through draft. It has also been mentioned in the Misc. Application No. 104 of 2020 for condonation of delay and appeal as well as supporting affidavits that the appellant had deposited ₹5,000/- in the Consumer Legal Aid Account on 25.09.2019, vide receipt No.148513 and paid ₹25,000/- to the complainant vide Banker Cheque dated 23.09.2019.
59. In First Appeal No.648 of 2019, the appellant/opposite party No.3 had deposited a sum of ₹25,000/- at the time of filing of the appeal. It deposited another sum of ₹7,82,281/-, vide receipt dated 23.10.2019 in compliance of order dated 04.10.2019 passed by this Commission. Both these amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District First Appeal No.16 of 2020 49 Commission forthwith. Respondent No.1/complainant may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
60. The appeals could not be decided within the statutory period due to heavy pendency of court cases and pandemic of COVID-
19. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (MRS. KIRAN SIBAL) MEMBER January 27, 2021.
(Gurmeet S)