State Consumer Disputes Redressal Commission
Dr.P.C.Rath (Cardiologist) Apollo ... vs A.C.Verma on 15 February, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2016/547
Instituted on : 30.09.2016
1. Dr. P.C. Rath (Cardiologist),
Through : Apollo Hospital, Jubillee Hills,
Hyderabad - 500 096 (Andhra Pradesh)
2. Apollo Hospital,
Through : Mahaprabandhak / Sanchalak / Director,
Jubilee Hills,
Hyderabad-500096 (Andhra Pradesh) ....Appellants/O.P.No.1 & O.P. No.2
Vs.
A.C. Verma, S/o Late Shri Mohan Lal,
Aged about 66 years,
R/o : 353/, Sindhiya Nagar, S.A.F. Line,
Durg, District Durg (C.G.) .... Respondent/Complainant
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Ashok Parijat, Shri Alok Bakshi & Shri Sanjay Tiwari, for the
appellants.
Shri Anurag Thaker, for the respondent.
ORDER
Dated : 15 /02/2017 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 29.07.2016. passed by the District Consumer Disputes Redressal Forum, Durg (C.G). (henceforth "District Forum" for short), in Complaint Case No.C.C./13/104. By the impugned order, learned District Forum, has allowed the complaint of the complainant and directed that :-
// 2 // (1) The O.P.No.1 & O.P. No.2 will jointly and severally pay a sum of Rs.92,810/- (Rupees Ninety Two Thousand Eight Hundred Ten) towards treatment expenses, within one month from the date of order.
(2) If the above amount is not paid by the O.P. No.1 & O.P. No.2 within stipulated period, then they will be liable to pay interest @ 09% p.a. from the date of order till realisation.
(3) The O.P. No.1 & O.P. No.2 will jointly and severally pay Rs.2,00,000/- (Rupees Two Lakhs) towards compensation for physical agony, to the complainant.
(4) The O.P. No.1 & O.P. No.2 will jointly and severally pay Rs.1,00,000/- (Rupees One Lakh) towards compensation for mental agony, to the complainant.
(5) The O.P. No.1 & O.P. No.2 will jointly and severally pay Rs.10,000/-
(Rupees Ten Thousand) towards cost of litigation to the complainant.
2. Brief facts of the complaint of the complainant are that when the complainant suffered some problems relating to thyroid, then in the month of March, 2007 he went to Jawaharlal Nehru Memorial Hospital, Bhilai for treatment. The complainant had taken medical advice from Dr. Goverdhan, who advised the complainant to undergo an echocardiography test. The complainant contacted Dr. S.K. Saxena on // 3 // 05.03.2007 for undergoing echocardiography test, who advised the complainant for T.M.T. test instead of echocardiography test. As per advice of the doctor, on 15.03.2007, the T.M.T. test of the complainant was conducted. After perusing the T.M.T. Report, Dr. S.K. Saxena obtained information from the complainant regarding the mediclaim insurance and informed that the complainant had some heart ailment, and therefore, he was advised to go to the O.P. No.2 Hospital and to contact O.P. No.1 for treatment. The complainant had informed to Dr. S.K. Saxena that earlier or at present he was not suffering from some heart ailment. The complainant was afraid when Dr. Saxena informed that he was having some heart ailment, therefore, he went to Modern Medical Institute, Raipur on 22.03.2007 and consulted Dr. Shailesh Sharma then he informed the complainant that he was having some heart ailment, but the complainant deemed it proper to go to O.P. No.2 Hospital for treatment on the advice of Dr. S.K. Saxena. On being advice given by Dr. S.K. Saxena, the complainant went to O.P. No.2 hospital and contacted O.P. No.1 for treatment. The O.P. No.1 obtaining information from the complainant regarding the mediclaim insurance and directed the complainant to undergo angiography test. The complainant had informed the O.P. No.1 that earlier or at present he is not suffering from any heart ailment. On the advice given by O.P. No.1, the complainant gave his consent for angiography test. The O.P. No.1 conducted angiography and after perusing the angiography report in the operation theater, advised the // 4 // complainant for undergoing angioplasty operation. The complainant informed the O. P. No.1 that he was not having any heart problem, therefore, he refused to undergo angioplasty operation, then the O.P. No.1 compelled the complainant to undergo angioplasty by saying that there is 80-90% blockage in his artery and it is a serious problem which can take form of the heart attack. The O.P. No.1 immediately conducted angioplasty and fitted stent in the artery of heart. The complainant incurred a sum of Rs.3,33,424/- in his treatment and the same was paid by him to the O.P. No.2 hospital. Later on the Insurance Company paid a sum of Rs.2,50,000/- to the complainant towards health insurance amount. Thus, the complainant had to incur Rs.83,424/- towards medical expenses from his own. The O.P. No.1 and O.P. No.2 have prepared the video CD of the entire treatment & operation and gave the same to the complainant. Thereafter the complainant came to Bhilai along with his wife. During treatment and thereafter he purchased medicines to the tune of Rs.9,386/-. Prior to taking treatment from the O.P. No.1, the complainant was not having any heart problem. When prior to starting treatment the O.P. No.1 took information regarding health insurance and treatment him, which created doubt. The O.P. No.1 has unnecessarily pressurized the complainant to undergo angiography and after seeing its report to undergo angioplasty operation immediately, which confirmed his doubt. In the year 2009 the complainant had shown the video CD of treatment and operation given by the O.P. No.1 & O.P. No.2. After seeing the video // 5 // CD the details came out in the video CD and not matching with the written details given by the O.P. No.1 & O.P. No.2 and from the video CD it is clear that there was no blockage to the extent of 80-90% in the artery of the complainant. Thus, the O.P. No.1 & O.P. No.2 to extract money from the complainant, informed him that he is suffering from serious disease and conducted his operation . The OPs committed medical negligence and unfair trade practice. Hence the complainant filed instant complaint and prayed for granting reliefs, as mentioned in relief clause of the complaint.
3. The OPs did not file written statement before the District Forum in spite of giving sufficient opportunity and have filed affidavit of Dr. P.C. Rath, on behalf of the OPs in which it is mentioned that the complainant came to Apollo Hospital, Hyderabad in the year 2007 and was admitted under care of O.P. No.1 on 23.03.2007. At the time of his admission in the hospital he was complaining difficulty in breathing on exertion for last about 15 days. Prior to his admission he was examined at Bhilai by one Physician Dr. Goverdhan, who referred the complainant to another Cardiologist Dr. Saxena, working in Jawaharlal Nehru Hospital, Bhilai. The complainant underwent the trademill test which was positive indicating that he may have some blocks in his coronary arteries supplying blood to heart and so he was referred to Apollo Hospital, Hyderabad for further investigation like coronary engiogram and for necessary treatment. The complainant took a second opinion from Dr. Shailesh Sharma, Cardiologist in Modern Medical Institute, Raipur, who advised him to go // 6 // to Apollo Hospital, Hyderabad. The outpatient slip from Modern Medical Institute, Raipur shows that the complainant was examined by Dr. Shailesh Sharma, MMI Raipur for chest pain and Dr. Sharma had noted that patient has been advised to go to Apollo Hospital, Hyderabad. The complainant underwent coronary angiogram on 23.03.2007 which showed significant lesions in two of his arteries LAD (Well Profiled in PA Cranial View, Image - 2) and LCX (Well Profiled in LAO Cranial View, Image 11). After the angiography, in O.P. No.1's professional opinion, the complainant required angioplasty and stenting. This fact was informed and explained to the patient and his wife in detailed. Complete information about the health, result of angiography etc. was given and explained to the patient and his wife. After fully understanding the same, the patient / complainant had given his consent for angioplasty by duly filling up the consent form. This consent form was signed by his wife also. The complainant was not forced for going to angioplasty or was in any way not pressurized by the OPs for undergoing angioplasty. Subsequently, angioplasty and stenting of both LAD and LCX was successfully completed without any complication whatsoever. The complainant was discharged on 27.03.2007 and was advised to come for review after two months. The patient / complainant and his wife were duly explained in detailed about the angiography report and the procedure proposed to be adopted (angioplasty and stenting). The patient / complainant and his wife, after understanding everything, had given // 7 // their consent for the angioplasty and stenting and had signed the consent form. The complainant is a literate person and he is making unnecessary and omnibus allegations without any basis which are contrary to the records. The fee and the other expenses were charged on the complainant / patient as per tarrif which was in applicable / in practice, at the relevant time in Apollo Hospital, Hyderabad. The complainant was having heart problem. The complainant was examined by various doctors in Bhilai and Raipur, preliminary investigations were conducted and then he was referred to Apollo Hospital, Hyderabad. The complainant is a literate person and he had come to Apollo Hospital, Hyderabad after due consultations with his doctors at Raipur and Bhilai. Apollo Hospital, Hyderabad is a reputed hospital. The patient including complainant are advised about their proposed treatment and the expected expenditure well in advance before going for any particular procedure. Any query regarding the Health insurance is made to the patient as a practice because the OPs have to apply to the Insurance Company in advance for prior authorization before doing any investigation and treatment. It is submitted that making any query regarding the Health Insurance etc. had nothing to do with the type of treatment to be given to the complainant. Making of a query regarding the Health Insurance is not at all related with the requirement of conducting a procedure on patient. The coronary angiogram of the patient / complainant clearly shows that there were blocks in two of his coronary arteries which is in O.P. No.1's professional // 8 // opinion required angioplasty and stenting. These are clearly shown in the photographs attached with reply (which showed block before angioplasty narrowing of the balloon during stent deployment and opening of the artery after stenting. The angioplasty was completed without any complication and the complainant was discharged on 27.03.2007 without any complication. The treatment was given to the complainant / patient in the year 2007. The complaint has been filed in the year 2010 which is after two years of treatment and is barred by limitation. The complainant was treated in the Apollo Hospital, Hyderabad in 2007 whereas the complaint has been filed in the year 2010 which is after a period of 2 years. The complainant has tried to cover up this issued by saying that in the year 2009 he showed the Video CD to some of the doctors and after their opinion he filed the complaint. The entire complaint of the complainant is baseless, frivolous and filed after the limitation period of two year. There has been no negligence or mis-conduct on the part of OPs. The complaint be dismissed with heavy exemplary cost.
4. The complainant has filed documents. Document No.1 are prescription dated 05.03.2007 issued by Pt. Jawaharlal Nehru Hospital, Bhilai, document No.2 is prescription dated 15.03.2007 issued by Pt. Jawaharlal Nehru Hospital, Bhilai, document No.3 is prescription dated 17.03.2007 issued by Pt. Jawaharlal Nehru Hospital, Bhilai, document No.4 is prescription dated 22.03.2007 issued by Modern Medical Institute, Raipur, document No.5 is report of Cardiology Department of O.P. No.2 // 9 // hospital dated 23.03.2007, document No.6 is various pathology report of the complainant prepared in O.P. No.2 hospital, document No.7 is bills of the complainant in respect of the medicines, document No.8 is bills of the hospital in respect of his treatment, document No.9 is letter sent by O.P. No.1 to Dr. S.K. Saxena and certificate, document No.10 is Video CD of operation.
5. The O.P. No. 1 & O.P. No.2 have filed documents. Annexure NA/1 is affidavit of O.P. No.1, Annexure NA/2 is letter dated 07.07.2012 sent by Registrar, Andhra Pradesh Medical Council to the O.P. No.1, Annexure NA/3 are photographs, Annexure NA/4 are Consent Form for Procedure /Surgery.
6. After having considered the material placed before it by both the parties, the District Forum has partly allowed the complaint and directed the OPs to pay amounts to the complainant, as mentioned in para 1 of this order.
7. Shri Ashok Parijat and Shri Alok Bakshi, learned counsel appearing for the appellants (OPs) have argued that initially the respondent (complainant) went to the Jawaharlal Nehru Memorial Hospital, Bhilai in the year 2007 with some thyroid problems. The doctor advised him to undergo an echocardiography test. The respondent (complainant) then contacted Dr. S.K. Saxena for undergoing echocardiography test, who advised him for a treadmill test. Pursuant to the treadmill test, it was // 10 // suspected that the respondent (complainant) had some heart ailment and therefore, he was advised by the O.P. No.1 to go to the Apollo Hospital, Hyderabad (O.P. No.2) for treatment. The respondent (complainant) was admitted on 23.03.2007 and discharged on 27.03.2007. In lieu of the treatment meted out to the respondent (complainant), consideration was paid by him for the services at Apollo Hospital, Hyderabad (O.P. No.2). The impugned order passed by the District Forum, is erroneous. The complaint of the complainant is barred by time. The actual cause of action accrued on the date of discharge of the respondent (complainant) from the O.P. No.2. The respondent (complainant) was discharged from the O.P. No.2 on 27.03.2007, therefore, cause of action was accrued on 27.03.2007 whereas the complaint has been filed on 05.10.2010. The complaint has been filed after more than three years, therefore, the complaint is barred by time. They placed reliance in support of ground of limitation State Bank of India Vs. B.S. Agricultural Industries (I), (2009) 5 SCC 121 and Priya Ramani (Dr.) & Anr. Vs. Surendra Ugale (Dr.) & Anr. II (2015) CPJ 173 (NC).
8. Shri Ashok Parijat and Shri Alok Bakshi, further argued that District Forum, Durg (C.G.) has no territorial jurisdiction to entertain the complaint. The amount was paid for services rendered by the appellants (OPs) at Hyderabad. The respondent (complainant) was treated at Hyderabad and both the appellants (OPs) reside at Hyderabad. The respondent (complainant) on his own volition, went to Hyderabad, and the // 11 // entire medical procedure was undertaken at Hyderabad, therefore, no part of cause of action arose within territorial jurisdiction of the District Forum, Durg (C.G.). It is the own case of the respondent (complainant) that he went to Jawaharlal Nehru Memorial Hospital, Bhilai in March, 2007 with some thyroid problems and the concerned doctor advised him to undergo an echocardiography test. The aforesaid fact itself indicates that the doctor, who examined him at Jawaharlal Nehru Memorial Hospital, Bhlai also detected an ailment in his heart. The respondent (complainant) thereafter consulted a cardiologist, who advised him to undergo the TMT test which is a test relating to determining the condition of the heart. The same was duly conducted. The said cardiologist after conducting TMT test, advised the respondent (complainant) to approach to the Apollo Hospital at Hyderabad for necessary treatment which the respondent (complainant) accordingly did. It would thus be noted that the respondent (complainant) on his own volition, went to Hyderabad, having been examined by two doctors, who diagnosed him for ailment of his hart and further advised that he needed treatment of his heart. Thereafter, at Hyderabad, an angiogram procedure was carried out, which was followed by angioplasty and stenting and the respondent (complainant) was discharged on 27.03.2007. No complaint was ever lodged by the respondent (complainant) alleging any coercion or duress under which his consent for medical treatment at Hyderabad was obtained. After undergoing the aforesaid procedure at Hyderabad, no complaint // 12 // regarding the conditions of his heart was ever noticed. It is averred in the complaint that in the year 2010 i.e. three years after the procedure of angioplasty was carried out at Hyderabad, he visited some doctors, who advised him after going through his medical reports that there was no need to undergo angioplasty and stenting. The identity of the doctors who gave the aforesaid advise has not been disclosed. In the year 2011, the respondent (complainant) also filed a complaint before the Andhra Pradesh Medical Council, wherein he made allegations of medical negligence against the appellants (OPs). The said complaint was made before the Andhra Pradesh Medical Council during the pendency of the proceeding before the learned District Forum. The Ethical Committee of the Andhra Pradesh Medical Council examined the complaint and came to a conclusion that there is no negligence on the part of the appellants (OPs). Thereafter the matter was sent to the Executive Committee of the Andhra Pradesh Medical Council, which considered the entire matter and on 03.03.2010, the General Body of the said council concurred with the decision of Ethics Committee. Thus, the entire matter was examined by a three tier committee and no medical negligence was found on the part of the appellants (OPs). All these while, the respondent (complainant) chose not to take any further steps before the District Forum at Durg and only after the complaint before the Andhra Pradesh Medical Council, Hyderabad was rejected, he chose to take further steps in the complaint filed before the District Forum. This clearly demonstrates that the // 13 // respondent (complainant) having failed to get any relief before the Andhra Pradesh Medical Council, decided to proceed his pending complaint before the District Forum. It is also evident that the respondent (complainant) was hell bent on harassing the appellants (OPs) by approaching multiple forums. The District Forum referred the matter to Gandhi Medical College, Bhopal for an opinion on the complaint along with the connected papers. The three tier Committee was constituted by the said Medical College comprising of Cardiologists and after evaluation of all the documents, and it was specifically stated that the patient was symptomatic and had evidence of coronary artery disease and he was adequately treated. Therefore, the allegation of deficiency in service was clearly non-existent. On the basis of the aforesaid report of the Gandhi Medical College, Bhopal, the complaint deserves to be rejected even assuming for the sake of argument though not admitting that same was liable to be entertained by the District Forum. During the pendency of the proceedings before the District Forum, on the request of the respondent (complainant), the papers were sent to Dr. Bhim Rao Ambdekar Memorial Hospital, Raipur (C.G.) in order to tender an opinion on the adequacy of the treatment meted out to the respondent (complainant) by the appellants (OPs). However, the relevant documents pertaining to the case history, photographs of the angioplasty & angiography were not sent. The medical report which was received from Dr. Bhim Rao Ambedkar Memorial Hospital, Raipur stated that the block in LAD artery is // 14 // significant (60-70%) and LCX artery is insignificant. It may be noted that even in the said report, there is no allegation of negligence and deficiency of service by the appellant (OPs). The appellants (OPs) disputed the said report before the District Forum. The impugned order dated 29.07.2016 passed by the District Forum, is illegal, arbitrary, based on no evidence, contrary to provisions of the Consumer Protection Act, and therefore, is liable to be set aside and consequently the present appeal is liable to be allowed with compensatory cost.
9. Shri Anurag Thaker, learned counsel appearing for the respondent (complainant) has argued the respondent (complainant) contacted the appellants (OPs) from Durg (C.G.) and the amount was also paid by him in Durg (C.G.). The branch hospital of the O.P. No.2 is also situated at Bhilai (C.G.) and the respondent (complainant) contacted some doctors at Durg (C.G.), therefore, the District Forum, Durg (C.G.) has jurisdiction to entertain the complaint. So far as limitation is concerned, the respondent (complainant) came to know regarding the false information given by the appellant (OPs) for the first time in the year 2009 when he perused the Video CD prepared by the appellants (OPs), therefore, cause of action accrued in the year 2009, whereas the instant complaint has been filed on 05.10.2010, therefore, the complaint is well within limitation. Shri Anurag Thaker has further argued that that respondent (complainant) was suffering from some problems relating to thyroid, therefore, in the month of March, 2007 he went to Pt. Jawaharlal Nehru Memorial Hospital, Bhilai // 15 // for treatment where Dr. Goverdhan advised him to undergo an echocardiography test. On 05.03.2007, the respondent (complainant) went to Dr. S.K. Saxena for undergoing echocardiography test, who advised the complainant for T.M.T. test instead of echocardiography test. On being advice given by Dr. S.K. Saxena, the T.M.T. test of the respondent (complainant) was conducted on 15.03.2007. After perusing the T.M.T. Report, Dr. S.K. Saxena obtained information from the respondent (complainant) regarding Mediclaim Policy and informed the respondent (complainant) was suffering from heart ailments, therefore, the respondent (complainant) went to Modern Medical Institute, Raipur on 22.03.2007 and consulted Dr. Shailesh Sharma, who also informed the respondent (complainant) that he is suffering from some heart ailment. The respondent (complainant) deemed it proper to go to O.P. No.2 Hospital situated at Hyderabad and on the advice of Dr. S.K. Saxena, he went to O.P. No.2 Hospital where O.P. No.1 conducted angiography and after perusing the angiography report, the O.P. No.1 told the respondent (complainant) that operation is required to be done, whereas the respondent (complainant) was not suffering from heart problem, therefore, the respondent (complainant) refused to undergo angioplasty operation. The O.P. No.1 compelled the respondent (complainant) to undergo angioplasty operation by saying that there is 80-90% blockage in his artery, which is serious problem and at any time, heart attack can be occurred to the respondent (complainant). On being pressurized by the // 16 // O.P. No.1, the respondent (complainant) gave his consent for angiography operation. The O.P. No. immediately conducted angioplasty and fitted stent in the artery of the heart. The respondent (complainant) incurred expenses of Rs.3,33,424/- in his treatment and the same deposited with O.P. No.2. Later on the Insurance Company paid a sum of Rs.2,50,000/- to the respondent (complainant) towards health insurance amount and remaining amount of Rs.83,424/- was paid by him towards medical expenses. The O.P. No.1 & O.P. No.2 prepared the video CD of the entire treatment and operation and gave the same to the respondent (complainant). Thereafter the respondent (complainant) came to Bhilai (C.G.). After seeing the video CD the respondent (complainant) found that there was no blockage to the extent of 80-90% in his artery. Shri Anurag Thaker, has further argued that the appellants (O.P. No.1 & O.P.No.2) to extract money from the respondent (complainant) gave false statement that there is 80-90% blockage in the artery of the respondent (complainant), whereas in the LCX of the complainant there is only blockage of 5 to 10% and in the LCD there is blockage of 60 to 70% against which the appellant (OPs) told the respondent (complainant ) there is blockage of 80-90% in the artery of the respondent (complainant) and they pressurized the respondent (complainant) to undergo angioplasty operation, which comes within purview of medical negligence and unfair trade practice, therefore, the respondent (complainant) is entitled to get compensation from the appellants (OPs). The impugned order passed by the District Forum is just // 17 // and proper, hence does not call for any interference by this Commission of the appellants (OPs) be dismissed.
10. Firstly, we shall consider whether the complaint is barred by time ?
11. The respondent (complainant) pleaded that he suffered from some thyroid problem, then in the month of March, 2007 he went to Pt. Jawaharlal Nehru Memorial Hospital, Bhilai (C.G) for treatment where he met with Dr. Goverdhan, who advised the respondent (complainant) to undergo an echocargiography test. Thereafter the respondent (complainant) contacted Dr. S.K. Saxena in the same hospital on 05.03.2007 for echocardiography test, who advised the respondent (complainant) for T.M.T. test instead of echocardiography test. The respondent (complainant) further pleaded that Dr. S.K. Saxena told the respondent (complainant) that he is suffering from some heart ailment and when get information from Dr. S.K. Saxena that he is suffering from some heart ailment, he became afraid, therefore, he went to Modern Medical Institute, Raipur on 22.03.2007 and he was treated in out patient unit by Dr. Shailesh Sharma, who also informed the respondent (complainant) that he is suffering from some heart ailment, then the respondent (complainant) went to O.P. No.2 Hospital for treatment.
12. The respondent (complainant) has filed document No.5 (Annexure A-6), which is Report of Department of Cardiology, Apollo Hospitals, Hyderabad, in which it is mentioned that the respondent // 18 // (complainant) was admitted in the hospital on 23.03.2007 and discharged on 27.03.2007.
13. In Priya Ramani (Dr.) & Anr. Vs. Surendra Ugale (Dr.) & Anr. II (2015) CPJ 173 (NC), Hon'ble National Commission has observed thus :-
"7. In State Bank of India v. B.S. Agricultural Industries (I), II (2009) CPJ 29 (SC) = II (2009) SLT 793 = (2009) CTJ 481 (SC) (CP), the Hon'ble Apex Court, while dealing with the same provision, has held, as under :-
"It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."
9. A bare perusal of Section 5 of the Limitation Act, makes it plain that the material part of the language of Section 24A of the // 19 // Consumer Protection Act, 1986, is in 'pari materia' therewith. Therefore, it would seem settled beyond caisil that it is incumbent on the petitioner (complainant herein) to explain each day of default, beyond the terminus line of the prescribed period of limitation."
14. In the instant case, the respondent (complainant) pleaded that in the year 2009, he shown the Video CD regarding treatment and operation, to some doctors and after seeing the Video CD, the doctors specifically told the respondent (complainant) that there is difference between the particulars came in Video CD and particulars given by the appellants (OPs), therefore, cause of action was accrued to the respondent (complainant) in the year 2009 when for the first time he came to know regarding the false information given by the O.P. No.1. The above contention of the respondent (complainant) is not acceptable. The respondent (complainant) did not mention on which date and month of year 2009, he shown the Video CD to the doctors. The names of the above doctors have also not been mentioned in the complaint, therefore, prima facie, it appears that for brining the complaint case within limitation, the respondent (complainant) pleaded in the complaint that he shown the Video CD to some doctors at Durg (C.G.) in the year 2009. If actually, the Video CD could have been shown by the respondent (complainant) to some doctors, then the names of the doctors and report of the doctors could have been filed by the respondent (complainant). For want of names of the doctors and their report, on the basis of pleadings of the respondent // 20 // (complainant), it cannot be held that the respondent (complainant) for the first time in the year he came to know regarding false information given by the appellants (OPs). From bare perusal of document no.5 (Annexure A-6), it appears that the respondent (complainant) was discharged from the O.P. No.2 Hospital on 27.03.2007, therefore, the cause of action was accrued on 27.03.2007, whereas the instant complaint has been filed on 05.10.2010 i.e. after two years. The respondent (complainant) had not filed any application under Section 24A of the Consumer Protection Act, 1986 for condonation of delay in filing the complaint. It is incumbent duty of the respondent (complainant) to explain regarding delay, therefore, mere contention of the respondent (complainant) that in the year 2009 when , he shown the Video CD to the doctors, then he came to know regarding the false information given by the appellants (OPs), will not give cause of action to the respondent (complainant), therefore, the complaint is barred by limitation.
15. Now we shall examine whether the District Forum, Durg (C.G.) has territorial jurisdiction to entertain the complaint ?
16. In the title sheet of the complaint, the respondent (complainant) gave details regarding the appellants (OPs). The O.P. No.1 is Cardiologist and is working with O.P. No.2 Hospital and is residing at Hyderabad. The O.P.No.2 is Apollo Hospital, situated at Hyderabad. Learned counsel for the respondent (complainant) has argued that the amount was paid to // 21 // the O.P. No.2 from Durg (C.G.) and appointment was also taken from the O.P. No.2 from Durg (C.G). The respondent (complainant) came to know regarding wrong treatment given by the OPs for the first time at Durg (C.G.). The Apollo BSR Hospital, Bhilai which is branch hospital of the O.P. No.2 is situated at Bhilai (C.G.), therefore, the District Forum, Durg (C.G.) has jurisdiction to entertain the complaint. The District Forum, Durg (C.G.) has rightly adjudicated the matter. The above contention of the respondent (complainant) is not acceptable.
17. In Monto Motors Ltd. Vs. Sri Sai Motors & Anr. IV (2013) CPJ 372 (NC), Hon'ble National Commission has observed thus :-
"(i) Consumer Protection Act, 1986 - Section 21 (b) - Territorial Jurisdiction - Dealership - Dispute regarding refund of security amount - Dealership was granted for Bellary and showroom was also opened at Bellary and security amount was also given for running dealership at Bellary - Complaint can be filed within local limits of District Forum in whose jurisdiction cause of action arises
- Merely by mentioning that all disputes are subjected to jurisdiction of Delhi Courts in the letter of intent, jurisdiction of Court at Bellary is not ousted."
18. In Sonic Surgical Vs. National Insurance Company Ltd. IV (2009) CPJ 40 (SC) Hon'ble Supreme Court has observed thus :-
"(i) Consumer Protection Act, 1986 - Section 17 - Jurisdiction -
Territorial - Fire broke out in godown at Ambala - Insurance policy taken at Ambala - Compensation claim made at Ambala - Contention regarding applicability of Amendment Act, 2003 not acceptable - 'branch office' in amended section means, branch office where cause of action arose - No part // 22 // of cause of action arose in Chandigarh - Consumer Commission, Chandigarh had no jurisdiction to adjudicate."
"8. ......... In our opinion, the expression branch office in the amended section 17(2) would mean the branch office where the cause of action has arisen..."
19. In Ram Murti Smarak Institute of Medical Sciences & Anr. Vs Radhey Shyam & Anr. III (2015) CPJ 151 (NC), Hon'ble National Commission has observed thus :-
"Consumer Protection Act, 1986 - Section 21 (b) - Territorial Jurisdiction
- Medical Negligence - Complainant took treatment at 'Bareilly' - Pacemaker was implanted by OP-2 / Doctor at SRMS Institute of Medical Sciences, Bareilly - Fora below erred in considering the cause of action in District of 'Shahjahanpur' - District Forum, 'Shahjahanpur' directed to transfer the complaint to District Forum at 'Bareilly' - Complainant is allowed to file expert opinion and OPs may file their written statement subsequent to filing of expert report."
20. In Srei Equipment Finance Pvt. Ltd. & Ors. Vs. S. Natrajan, III (2016) CPJ 389 (NC), Hon'ble National Commission has observed thus :-
"(ii) Consumer Protection Act, 1986 - Section 21(b) - Territorial jurisdiction - Accrual of cause of action - Maintainability - Agreement was executed in 'Kolkata' whereas complaint was filed in District Forum, 'Salem', Tamilnadu - Merely because OP has a branch at 'Salem', complainant does not get jurisdiction to file complaint at 'Salem' - In spite of specific objection raised by OP neither District Forum nor State Commission dealt with this issue - District Forum, 'Salem' had no jurisdiction to entertain complaint."
// 23 //
21. Sub section 2 of Section 11 runs as follows :-
"(2) A complaint shall be instituted in District Forum within the local limits of whose jurisdiction -
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or, carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry or business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
22. It appears that the respondent (complainant) himself went to Hyderabad and was admitted in the O.P. No.2 Hospital. The respondent (complainant) pleaded that he paid a sum of Rs.3,33,424/- to the O.P. No.2. The respondent (complainant) filed document No.8 which was issued by Apollo Hospitals, Hyderabad (O.P. No.2). The respondent (complainant) has also filed document No.9 / Annexure A-23 which is letter dated 28.03.2007 written by the O.P. No.1 to Dr. Saxena in which it is mentioned thus :-
// 24 // "Dear Dr. Saxena Thank you for referring the patient Mr. A.C. Verma. He underwent angiogram which showed tight discrete blocks in LAD / LCX. He underwent successful angioplasty and stenting to both using drug eluting stents. He is advised to follow up under your care."
23. It appears that the payment was made to the O.P. No.2 at Hyderabad, therefore, no cause of action was accrued at Durg (C.G.), therefore, the District Forum, Durg (C.G.) has no territorial jurisdiction to entertain the complaint, hence the impugned order passed by the District Forum, is without jurisdiction. Merely BSR Apollo Hospital, Bhilai is branch hospital of O.P. No.2, and the video CD was perused at Durg (C.D.), does not confirms the territorial jurisdiction of the District Forum, Durg (C.G.).
24. So far as merits of the case is concerned, it is initial burden of the complainant to prove medical negligence on the part of the OPs. If the complainant discharges onus, then it is the duty of the treating doctor to disprove the case against medical negligence. The respondent (complainant) has filed prescription dated 05.03.2007 issued by Pt. Jawaharlal Nehru Memorial Hospital, Bhilai (C.G.) in which it is mention that "Patient was already advised for TMT in July 2007, patient come for investigation........". In Annexure A-4 it is mentioned that "In view of treatment patient is hereby referred to Apollo Hospital, Hyderabad for Echocardiography and further management." Annexure A/5 is prescription, issued by Out Patient Unit, Modern Medical Institute, Raipur (C.G.) in // 25 // which the date is mentioned as 22.03.2007 whereby Dr. Shailesh Sharma, also informed the respondent (complainant) that he is suffering from some heart ailments. It appears that Dr. Goverdhan, Dr. A.S. Saxena and Dr. Shailesh Sharma, have doubted that the respondent (complainant) was having some heart ailments. The respondent (complainant) himself went to the O.P. No.2 for treatment.
25. In the instant case expert reports are annexed with the record of the District Forum out of which one has been given by Dr. Bhimrao Ambedkar Memorial Hospital, Raipur on 31.05.2016 and another report was given by Cardiology Department, Gandhi Medical College, Bhopal on 28.02.2012.
26. In the report given by Dr. Bhimrao Ambedkar Memorial Hospital, Raipur dated 31.05.2016, it is mentioned thus :-
"mijksDr lanfHkZr fo"k;karxZr ys[k gS fd layXu ,aft;ksxzkQh dh lh- Mh- ds voyksdu djus ds Ik'pkr~~ vuqekfur Ikzfr'kr Cydst fuEukuqlkj gS%&
1. LAD - Mid tubular 60-70% stenosis.
2. LCX - Proximal plaque causing 5-10% stenosis".
27. In the report given by Cardiology Department, Gandhi Medical College, Bhopal dated 28.02.2012, it is mentioned thus :-
"With reference to above, the committee examined the documents and enclosed CD.
The opinion of the committee is as under :
// 26 // The patient was symptomatic and had evidence of Coronary artery disease. He was adequately treated."
The above report bear signatures of Yogesh Varma, Professor and Head, Chairman, B.S. Yadav, Professor, Member and R. Gupta, Associate Professor, Member and the report was given by Cardiology Department of Gandhi Medical College, Bhopal. It appears that both the reports are contradictory to each others. Both the reports are based on CD provided to them, therefore, it is the incumbent duty of the respondent (complainant) to obtain another expert report.
28. The respondent (complainant) pleaded that in the year 2009 i.e. after two years after the procedure of angioplasty carried out at Hyderabad, he visited to some doctors and they perused the medical report and Video CD and after perusal of the medical report and Video CD, they told the respondent (complainant) that there was no need to undergo angioplasty and stenting, but, but the respondent (complainant) did not mention the name of the doctors, who told him regarding the above facts. The respondent (complainant) also did not file affidavits of the above doctors.
29. The appellants (OPs) have filed letter dated 07.07.2012 (Annexure NA-2) , issued by Registrar, Andhra Pradesh Medical Council, Sultan Baar, Hyderabad to Dr. P.C. Rath, (O.P. No.1) in reference to complaint dated 25.05.2011 received from A.C. Verma (complainant). The Andhra Pradesh // 27 // Medical Council, after detailed discussions reached to the conclusion that there is neither misconduct nor negligence on the part of the O.P. No.1 and disposed off the complaint. The relevant para of the above letter is reproduced thus :-
"The Executive Committee of APMC in its meeting held on 29.03.2012 has considered the entire material on record together with the detailed observations / recommendations of the Ethics Committee. The Executive Committee after detailed discussion has decided to approve the recommendation of Ethics Committee that "there is neither misconduct nor negligence on the part of the Respondent, Dr. P.C. Rath. The General Body of APMC in its meeting held on 30.03.2012 has considered the entire material on record together with the detailed observations / recommendations of the Ethics Committee and the decisions of the Executive Committee. The General Body on perusal of the material on record and after detailed discussion has decided to approve the recommendation of the Ethics Committee as approved by the Executive Committee that "there is neither misconduct nor negligence on the part of the respondent, Dr. P.C. Rath."
In view of the decision taken by the General Body, I am directed to inform that "there is neither misconduct nor negligence on your part."
30. The appellants (OPs) have filed affidavit of Dr. P.C. Rath (O.P.No.1) which is marked as Annexure NA-1 in which he stated thus :-
"3.I submit that Mr. A.C. Verma came to me at Apollo Hospital Jubilee Hills four years back on 23.03.2007 with complaints of breathing difficulty on exertion. His treadmill test was positive. He underwent coronary angiogram on 23.03.2007 which showed significant lesions in two of his arteries LAD (well profiled in PA Cranial view, image 2) and LCX (well profiled in LAO cranial view, image 11). The relevant paragraphs are attached. IN my professional opinion he required angioplasty and stenting. This was explained to the patient and his wife in detail. Having understood // 28 // the same, he has given consent for the angioplasty. Thus informed written consent was taken duly signed by the patient and his wife (consent form attached). Subsequently angioplasty and stenting to both LAD and LCX were done successfully without any complication and he was discharged on 27.03.2007.
5. I submit that it is also pertinent to notice that Mr. Verma filed an out patient unit slip dated 22.03.2007 issued by Modern Medical Institute. The said document shows that he was examined by Dr. Shailesh Sharma, Cardiologist and the said doctor has very much noted that the patient has chest pain and there is also a reference by the said doctor to Apollo Hospitals, Hyderabad. In that view of the matter, Mr. Verma's allegation that Dr. Shailesh Sharma opinion that it is not necessary for Mr. Verma to go to Hyderabad and all the related allegations are ex-facie false statements. His own document contradicts his stand. Further allegation that Dr. Shailesh Sharma told him that angioplasty was unnecessarily done is also denied for the aforesaid reasons. This fact itself clinches the malafides on the part of Mr. Verma in filing the present complaint under reply.
6. I submit that the allegation that Dr. Saxena forced Mr. Verma to meet me and that I blackmailed and pressurized him for doing angioplasty are emphatically denied and Mr. Verma is put to strict proof of the same. As the patient was well educat9on, a retired asst. General Manager of a PSU, the question of pressure and black mail are totally baseless. The allegation that I have confirmed over phone that Dr. Saxena gets monitory benefits of Rs.20,000/- per case for referring cases is totally untrue and baselss. The allegation is with malafide intention to tarnish my professional image.
7. I submit that that for your kind notice that I have been practicing interventional Cardiology since 1988. It is very saddening for me on personal as well as professional front that such baseless and atrocious allegations about my professional conduct and character are made by a patient four years after // 29 // he underwent angioplasty and stenting successfully and who is apparently asymptomatic."
31. It appears that after filing the complaint before the District Forum, the respondent (complaint) made complaint against Dr. P. C. Rath (O.P. No.1) before Andhra Pradesh Medical Council. The Andhra Pradesh Medical Council exonerated Dr. P.C. Rath (O.P. No.1) and gave finding that "there is neither misconduct nor negligence on the part of Dr. P.C. Rath (O.P. No.1)."
32. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. 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 him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
// 30 //
33. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference.
To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible // 31 // for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
// 32 // V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VII. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VIII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
IX. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
X. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
XI. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for // 33 // pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XII. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
34. In Dr. Sanjay Gadekar Suprathet Hospital and Surgical Research Institute Ltd. Vs. Sangamitra @ Sandhya Khobragade, 2016 (3) CPR 270 (NC), Hon'ble National Commission has observed thus :-
"11 In this context we place reliance upon few judgments of Hon'ble Supreme Court. In Jacob Mathews Case (2005) 6 SCC 1, it was observed by Hon'ble Supreme Court as :
"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, the Hon'ble Supreme Court held that :
"in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his // 34 // ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession."
The Hon'ble Supreme Court in the case Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others (2010) 3 SCC 480; the bench comprising Hon'ble Justices Dalveer Bhandari and H.S. Bedi while dismissing the complaint held that :
"Consumer Protection Act, (CPA) should not be a "halter round the neck" of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death."
... ... ... xxxxx......
It further observed as, "It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish."
25. In Hucks v. Cole & Anr (1968) 118 New LJ 469, Lord Denning speaking for the Court, observed as under :
"a medical practitioner was not to be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field."
// 35 //
35. The respondent (complainant) pleaded that the O.P. No.1 pressurized him for undergoing angioplasty operation, but the respondent (complainant) did not file any document to prove that on being influence given by the O.P. No.1 he gave his consent for undergoing angioplasty operation. Dr. Shailesh Sharma and Dr. S.K. Saxena are material witnesses for the respondent (complainant), but the respondent (complainant) did not file affidavits of the above doctors. Therefore, merely mentioning that some doctors told the respondent (complainant) that there is no need of angioplasty operation, is not sufficient to prove that the OPs wrongly conducted angioplasty operation of the respondent (complainant). So far as fact regarding percentage of blockage in artery of the respondent (complainant) is concerned, the report dated 31.05.2016 given by Dr. Bhimrao Ambedkar Memorial Hospital, Raipur and report dated 28.02.2012 given by Cardiology Department, Gandhi Medical College, Bhopal are contradictory to each other. The respondent (complainant) has not filed another expert report to contradict the report of Cardiology Department, Gandhi Medical College, Bhopal dated 28.02.2012.
36. In view of the above discussions, the respondent (complainant) has not been able to prove that the O.P. No.1 pressurized for undergoing angioplasty operation, whereas the angioplasty and stent were not required. There is no sufficient evidence to prove the allegations of medical negligence on the part of the O.P. No.1.
// 36 //
37. Therefore, impugned order dated 29.07.2016, passed by the District Forum, is erroneous and not sustainable in eye of law, hence is liable to be set aside.
38. Hence, the appeal filed by the appellants (OPs ), is allowed and the impugned order dated 29.07.2016, passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent (complainant), shall stand dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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