State Consumer Disputes Redressal Commission
Anuradha Rani Wife Of Shri Rakesh Kumar, ... vs Oriental Insurance Company Limited, ... on 14 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.535 of 2005 Date of Institution: 24.03.2005 Date of Decision: 14.05.2012 1. Dr. Amar Singh Sidhu C/o M/s Sidhu Nursing Home, Behind Radha Soami Satsang Ghar, Hisar Road, Sirsa. Tehsil and District Sirsa. 2. M/s Sidhu Nursing Home, Behind Radha Soami Satsang Ghar, Hisar Road, Sirsa, Tehsil and District Sirsa. Appellants (Ops No.1 & 2) Versus 1. Anuradha Rani wife of Shri Rakesh Kumar, Resident of House No.570, Mohalla Jail Ground, Sirsa. Tehsil and District Sirsa now deceased represented by:- i) Rakesh Kumar s/o Des Raj, ii) Subodh Kumar s/o Rakesh Kumar, both Residents of H.No.570, Mohalla Jail Ground, Arya Samaj Road, Sirsa (Haryana). iii) Ms. Parul d/o Rakesh Kumar and wife of Shri Sachin Jaiswal, Resident of Street Lakshman Das Kochhar, Inside Magzini Gate, Ferozepur City (Punjab). iv) Ms. Ruchi Jaiswal d/o Rakesh Kumar and wife of Vishal Jaiswal, Resident of near Hotel Samrat, Chhoti Line, Jagadhari, District Yamuna Nagar (Haryana). Respondent (Complainant) 2. Oriental Insurance Company Limited, Sirsa Tehsil and District Sirsa through its Divisional Manager. Respondent (OP-3) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri J.S. Duhan, Advocate for appellants. Shri Rohit Goswami, Advocate for respondent No.1. None for respondent No.2. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 25.02.2005 passed by District Consumer Forum, Sirsa in complaint No.40/1996 whereby the appellants-opposite parties have been held guilty of medical negligence and deficiency in service while treating complainant Anuradha Rani (now deceased).
The case of complainant set up before the District Consumer Forum is as under:-
Complainant had been feeling pain in her kidney. On 25.7.1995 Anuradha Rani visited the opposite parties (appellants herein) and the opposite parties after examining the complainant, advised for x-ray in respect of kidney from M/s Garg Diagnose Centre, Sirsa. Anuradha Rani got her x-ray done on 26.7.1995. Dr. Jiwan Garg of M/s Garg Diagnostic Centre, Sirsa vide his report dated 26.07.1995 told the complainant that there were seven stones of different sizes in the right kidney of the complainant. after seeing the x-ray report, the opposite party No.1 opined that for observing the position of the stones in the right kidney, I.V.P. X-ray was urgently required and accordingly advised the complainant for I.V.P. x-ray of the right kidney. After seeing and visualizing both the x-ray reports as aforesaid, the opposite party No.1 got conducted necessary pre-operational tests on 28.7.1995 and 29.7.1995 in his Nursing Home i.e. the opposite party No.2 and thereafter the day of operation was fixed as 31.07.1995.
On 31.07.1995, Anuradha Rani was admitted by the opposite party No.1 in his Nursing Home and operation upon complainant- Anuradha Rani in the evening on 31.07.1995. Thus, after treating the complainant, she was discharged from the hospital.
The grievance of the complainant before the District Consumer Forum was that during the period of her admission in the hospital of the opposite parties, she suffered mental tension, pains, sufferings, annoyance. According to the complainant she paid Rs.10,000/- as fee to the opposite party No.1; Rs.8,000/- were spent in purchasing medicines; Rs.1500/- were spent on x-rays on three occasions besides Rs.7500/- as miscellaneous expenses. But still the complainant did not feel relief from the pain in her right kidney. Complainant got her again x-rayed on 14.8.1995 from M/s Garg Diagnosistic Centre and from the report it revealed that one stone was still in the Right Kidney of the complainant which was not removed by the opposite party No.1 at the time of operation. Accordingly, to the complainant at the first instant the opposite party No.1 did not listen to her but thereafter assured that the second operation will be done for the removal of the stone from the right kidney. Complainant alleged that one stone was not removed from the kidney intentionally by the opposite party No.1 so as to earn money for second operation. Thus, the complainant alleged medical negligence and deficiency in service against the opposite parties and sought direction to the opposite parties to pay compensation as prayed for in the complaint.
Upon notice, the opposite parties appeared and contested the complaint by filing written statement. It was stated that the complainant was having multiple stones in her right kidney which were lying in an end on position and the complainant was advised for removal of the stones by way of surgery. It was denied that in the x-ray report of Dr. Jiwan Garg, the number of stones in the right kidney of the complainant was mentioned, rather it was stated that There are multiple stones of different sizes and there was no report as to that there were seven stones. It was further stated that as the stones were lying in an end on position, therefore, the number of stones could not be counted. The complainant was advised for surgical operation which is a standard treatment for the removal of the stones from the kidney. Similar, position was found on conducting IVP X-rays, which was conducted from Garg Diagnostic Centre, Sirsa. The operation of the complainant was conducted with due care and caution and as many as eight pieces of stones were removed from the kidney of the complainant. The opposite party No.1 had thoroughly probed into the kidney and no stone was left as per the exploration made. All the stones which were visible in the X-ray, were removed and after satisfying himself, the opposite party No.1 had applied the stitches and closer was done after putting a drainage tube. Ultimately, the wound of the operation was healed and the kidney was functioning normally which was the indication of successful operation, the patient was discharged in a perfectly good condition. At the timer of discharge, there was no pain to the patient, however, the complainant had visited the Nursing Home of the opposite parties on 14.09.1995 for a routine follow up treatment and she was advised to get X-ray conducted. The stones which has been left in the kidney of the complainant, was neither visible in the X-ray nor was traced out at the time of exploration. It was denied that there was any motive of any wrongful gains from the complainant or with a view of causing wrongful losses to the complainant. However, the error of judgment is always usual and most consequent phenomina in such type of cases having multiple number of stones in the kidney and especially in the cases where the stones are lying in an end on position. The opposite party No.1 is M.B.B.S., M.S. and has been performing all type of surgeries from minor to major during his medical profession i.e. during the tenure of his service in the State of Haryana when he remained posted at various stations including at Civil Hospital, Sirsa as well as during his private practice. Thus, denying any kind of medical negligence and deficiency in service on their part, the opposite parties prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted complaint and granted relief to the complainant, given below:-
..We held both the respondents No.1 & 2 jointly and severally liable to pay the amount of compensation. We direct the respondent to make the payment of compensation on the aforesaid counts in the sum of Rs.160000/- in lum-sum to the complainant. We further direct the respondent doctor to make the compliance of the present order within a period of 6 weeks, failing which the complainant shall be entitled to recover the aforesaid amount of Rs.160000/- from the respondent with interest @ 9% per annum from the date of institution of the present complaint till its realization. The aforesaid relief granted by us is sufficient to meet the ends of justice, hence the demand of costs of proceedings declined. We further held that the Ops are at liberty to claim the amount from the insurance Company, if respondent is entitled to claim the amount insured of if the case of the respondent covered under the Insurance Policy under the term and condition of Insurance Policy. We order accordingly.
Aggrieved against the order of the District Consumer Forum, the opposite parties No.1 and 2 have come up in appeal.
We have heard learned counsel for the parties and perused the case file.
Undisputedly, the complainant has alleged medical negligence and deficiency in service against the appellants-opposite parties on the ground that in the X-ray report, seven stones were shown in the right kidney of the complainant but the appellant-opposite party No.1 at the time of operation, left one stone in the kidney.
On the other hand it is the case of the appellants-opposite parties that in the X-ray report the number of stones was not mentioned but it was mentioned that There are multiple stones of different sizes and the same were lying in an end on position. Learned counsel for the appellants while assailing the order of the District Consumer Forum has argued that as per the x-ray report, the number of stones were not shown in the right kidney of the complainant and the opposite party No.1 has removed eight stones during operation but the stone which developed after the operation, was neither visual in the X-ray film/report nor the same was noticed during operation.
It is a matter of common knowledge that the disease of stones in the kidney is develops speedy. There is nothing on the record that seven stones were shown in the X-ray film/report and the opposite party had negligently left one stone while conducting the operation of the complainant. As per the version of the treating doctor the complainant was having multiple stones in her right kidney and the same were lying in an end on position. The operation of the complainant was conducted with due care and caution and as many as eight pieces of stones were removed from the kidney of the complainant. As per the exploration, there was no other stone in the kidney of the complainant. Thus, for want of any cogent and convincing evidence, it cannot be said that there was any negligence on the part of the treating doctor while removing the stones from the right kidney of the Anuradha Rani. Even otherwise, if the version of the complainant is taken as true, then it can be a case of error judgment. By now it is well settled law that the error of judgment cannot be termed as medical negligence and deficiency in service on the part of the treating doctor. The basic principles which have been discussed by the Honble Supreme Court with respect to the medical negligence have been given in the judgment cited as Kusum Sharma and others versus Batra Hospital & Medical Research Centre and others, 2010 ACJ 1444, reproduced herein below:-
(1) 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 is 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.
(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.
(VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he 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.
(VII) 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.
(VIII) It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
(IX) 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.
(X) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
(XI) 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.
Thus, the error of judgment by leaving one stone in the kidney of Anuradha Rani, cannot be termed as a case of medical negligence and deficiency in service. Hence, the judgment in Kusum Sharmas case (Supra) is fully applicable to the instant case.
Honble Supreme Court in case cited as MARTIN F. DSOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC) has observed that:-
49. 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, 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 submission.
In para No.47 of MARTIN F. DSOUZAs case (Supra) it has been held that:-
Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
In case cited as Mohd.
Abrar versus Dr. Ashok Desai and others, 2011 CTJ 613 (CP) (NCDRC) Honble National Commission has observed as under:-
The medical practitioners cannot be treated as magicians or demi-Gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practitioner and there was clear material available to foresee the injury.
The ratio of the above mentioned cases fully applies to the facts of the present case. Complainant has not produced any expert evidence to prove any medical negligence against the treating doctor. Merely that Anuradha Rani suffered from kidney stone again, cannot be termed as a case of medical negligence against the treating doctor without there being any expert opinion. District Consumer Forum has failed to take into account the above stated facts of the case. Hence, the impugned order cannot be allowed to sustain.
Accordingly, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 14.05.2012 President B.M. Bedi Judicial Member First Appeal No.535 of 2005 Present : Shri J.S. Duhan, Advocate for appellants.
Shri Rohit Goswami, Advocate for respondent No.1.
None for respondent No.2.
Heard on the application moved on behalf of respondent No.1 (complainant) for impleading the LRs of complainant Smt. Anuradha Rani who has expired during the pendency of the appeal.
The application is allowed. The names of the legal heirs named in the application be arrayed in the Memo of Parties. Office to make necessary correction in the Memo of Parties.
May 14, 2012. Justice R.S. Madan President B.M. Bedi Judicial Member First Appeal No.535 of 2005 MEMO OF PARTIES
1. Dr. Amar Singh Sidhu C/o M/s Sidhu Nursing Home, Behind Radha Soami Satsang Ghar, Hisar Road, Sirsa. Tehsil and District Sirsa.
2. M/s Sidhu Nursing Home, Behind Radha Soami Satsang Ghar, Hisar Road, Sirsa, Tehsil and District Sirsa.
Appellants Versus
1. Anuradha Rani wife of Shri Rakesh Kumar, Resident of House No.570, Mohalla Jail Ground, Sirsa. Tehsil and District Sirsa now deceased represented by:-
i) Rakesh Kumar s/o Des Raj,
ii) Subodh Kumar s/o Rakesh Kumar, both Residents of H.No.570, Mohalla Jail Ground, Arya Samaj Road, Sirsa (Haryana).
iii) Ms. Parul d/o Rakesh Kumar and wife of Shri Sachin Jaiswal, Resident of Street Lakshman Das Kochhar, Inside Magzini Gate, Ferozepur City (Punjab).
iv) Ms. Ruchi Jaiswal d/o Rakesh Kumar and wife of Vishal Jaiswal, Resident of near Hotel Samrat, Chhoti Line, Jagadhari, District Yamuna Nagar (Haryana).
Respondent
2. Oriental Insurance Company Limited, Sirsa Tehsil and District Sirsa through its Divisional Manager.
Performa Respondent