State Consumer Disputes Redressal Commission
Madan Lal vs Dr. R.K. Chaudhary & Anr. on 20 July, 2011
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. FIRST APPEAL NO.81/2009. JUDGMENT
RESERVED ON 6.7.2011.
DATE OF DECISION: 20.7.2011.
In the matter of:
1. Madan Lal son of Sh. Shankar Chand, resident of Village Daka, P.O. Palera, Tehsil and district Kangra, Himachal Pradesh.
2. Master Shreshta Bharti, minor son,
3. Kumari Nanshee Wala, minor daughter of Shri Madan Lal son of Sh. Shankar Chand of Village Daka, P.O. Palera, Tehsil and District Kangra, H.P. Appellants No.2 and 3 (minors) through Appellant No.1, their father and natural guardian.
Appellants.
Versus
1. Dr. R.K. Chaudhary,
2. Dr. Smt. Veena Chaudhary, R.K. Nursing Home, VPO Birta, Tehsil & District Kangra, H.P.
3. The New India Assurance company Limited, Kotwali Bazar, Dharamshala, Himachal Pradesh, through its Branch Manager.
Respondents.
----------------------------------------------------------------------------------------------------------------------
Honble Mr. Chander Shekhar Sharma, Presiding Member.
Honble Mrs. Prem Chauhan, Member.
For the Appellants: Mr. Praveen Chandel, Advocate. Vice Counsel For the Respondents: Mr. Rajiv Rai, Advocate, vice Counsel For respondents No.1 & 2.
Mr. Ratish Sharma, Advocate, For respondent No.3.
----------------------------------------------------------------------------------------------------------------------
O R D E R Chander Shekhar Sharma, Presiding Member.
1. This appeal is directed against the order of the District Forum, Kangra at Dharamshala in Consumer Complaint No.534/2003, dated 16.1.2009, whereby the complaint of the complainants was dismissed by holding that the complainants have failed to prove any medical negligence on the part of the opposite parties No.1 & 2, as such the opposite parties cannot be held liable to indemnify the complainants. Parties are being referred to as per Their status in the complaint.
2. Facts as they emerge from the complaint file are that complainant No.1 is husband of deceased, Smt. Usha Kumar and complainants No. 2 & 3 are sons and daughters of the deceased, Smt. Usha Kumari. In the first week of June, 2003, she developed stomach ache and she was got medically examined and treated in Mission Hospital, Kangra, where she was advised to be examined and treated from the Clinic of the opposite parties. On medical check up, opposite party No.1 advised the complainant No.1 to get the sonography of the deceased done from the Makkar Scanning Centre, Kangra, where it was done in the month of June, 2003 and as per report of the sonography, no abnormality was found in the report. This report was also shown to the opposite parties No.1 & 2 and they after going through the report and past record of the patient admitted her in their nursing home on 6.7.2003.
3. Further averments in the complaint are to the effect that despite of the fact that there was no abnormality in the abdomen of the deceased as per report of the Makkar Scanning Centre, the opposite parties No.1 & 2 diagnosed the patient as Menorrhagia Fibroid uterus and admitted the deceased in their Nursing Home for surgical operation costing Rs.8,000/-, out of which Rs.2,500/- were paid in advance to the opposite parties.
4. It is also alleged in the complaint that after application of anaesthesia, operation was conducted, whereafter condition of the deceased Smt. Usha Kumar started deteriorating. Seeing no signs of improvement till the intervening night of 15/16th July, 2003, on 16th July at about 3.00 A.M., she was referred to CMC, Ludhiana. It is also averred in the complaint that the deceased was taken to Government Medical College and Hospital, Sector 32, Chandigarh, where she expired at about 1.00 P.M. on 16.7.2003.
Other averments in the complaint are to the effect that doctors at Chandigarh had informed the complainant that because of acute deficiency of blood in the patient, three bottles of blood were administered to her.
Grievance of the complainant was that on account of non availability of facilities like technical staff, expert in application of anaesthesia, blood bank, modern lab and even non existence of oxygen facility at the Nursing Home of the opposite parties No.1 & 2, the deceased Smt. Usha Kumar died due to negligence of the Opposite parties No.1 & 2 which constitute grave deficiency of service on their part being service providers.
5. In this background, complaint under Section 12 of the Consumer Protection Act, 1986 was filed alleging deficiency of service against the opposite parties No.1 & 2 and claimed compensation to the tune of Rs.10,00,000/- alongwith interest @ 12% per annum from the date of complaint till realization.
6. This complaint was resisted and contested by the opposite parties No.1 & 2 on the ground that the deceased had been sick for a long time and she had taken treatment from the Maple Leaf Mission Hospital, Kangra and the record of the said hospital was withheld by the complainants. It was also alleged that there was no deficiency of service on the part of the opposite parties No.1 & 2 because the cause of death was post operative acute pancreatitis with cardiac respiratory arrest and the operation and application of anaesthesia cannot be cause of acute pancreatitis which disease is of unknown cause and can occur to any individual at any time and at any moment and carries very high mortality rate. It was also pleaded that there was no post mortem report or other evidence to prove deficiency in service on the part of the opposite parties No.1 & 2 and it was specifically denied that there was no trained staff in the Nursing Home of the opposite parties No.1 & 2 and the alleged son of a Tea Staff owner was not working in their Nursing Home, rather his father Shri Devi Singh was working in their Nursing Home as full time worker. Other averments in the reply were to the effect that the Nursing Home of opposite parties1 & 2 had been in existence for the last 12 to 15 years and the opposite parties are themselves post graduate doctors with specialization having professional experience of more than 25 years in Government job and later in private practice. It was also pleaded that anaesthesia that was given to the deceased Smt. Usha Kumar was local anaesthesia with one injection in vertebral canal and the opposite parties No.1 & 2 had taken every care and caution while operating the deceased and there was no deficiency of service on their part.
7. Opposite party No.3 had pleaded that the complaint is not maintainable against them as the insured had not given any immediate notice regarding the incident and thus there is violation of the terms and conditions of the policy, as such Insurance company is not liable to indemnify the opposite parties No.1 & 2.
8. Rejoinder to the reply was also filed by the complainants wherein averments as contained in the complaint were reiterated.
9. Brief resume of evidence led by the parties in the present case in nutshell is that the complainants in support of their case had filed affidavit of Shri Madan Lal, who was husband/father of minor son and minor daughters of the deceased, Smt. Usha Kumari and reliance was placed upon various documents, Annexure CW.1/A to Annexure CW.1/G, which are; newspaper cutting of Punjab Kesari, dated 23.7.2003; Discharge Card of R.K.Nursing Home, Birta, Kangra, dated 6.7.2003; Sonography report of whole abdomen of Makkar Scanning Centre in respect of the deceased, Smt. Usha Kumari, dated 17.6.2003; Receipt of Rs.65/- issued by Government Medical College & Hospital, Chandigarh; Death Report of the deceased; F.I.R. No.328/2003, dated 14.11.2003 of Police Station, Kangra;
and copy of complaint under Section 156 (33) Cr.P.C. filed by Shri Madan Lal.
10. Opposite parties No. 1 & 2 had placed on record the affidavit of Dr. R.K. Chaudhary, Ex. OPW.1, affidavit of Dr. (Mrs.) Meenakshi Makkar, Ex. OPW.2, affidavit of Dr. Atul Sachdev of Government Medical College and Hospital, Sector 32, Chandigarh, Ex.OPW.3 and placed reliance upon various documents, Annexures OPW1/A to OPW1/J, which are; Admit Card, dated 6.7.2003 of deceased, Smt. Usha Kumar of R.K. Nursing Home; Prescription slip, dated 11.6.2003; report of Haematological analysis, dated 11/6/2003 of Anupam Clinical Laboratory, Birta, Kangra;
report of Haematological analysis , dated 26.6.2003 of Anupam Clinical Laboratory, Birta, Kangra; medical history of operation, admission and discharge of the deceased, Smt. Usha Kumari; First Information Report, dated 14.11.2003 of P.S. Kangra; Final Form/Report under Section 173 Cr.P.C., dated 14.11.2003; list of witnesses issued by SHO, P.S., Kangra; copy of letter dated 16.6.2004 addressed to the SHO, P.S., Kangra by Prof. & Head, Department of Forensic Medicines, Dr. R.P. Government Medical College, Kangra at Tanda; copy of letter dated 3.8.2004 addressed to SHO, P.S., Kangra by the Medical Superintendent, Govt. Medical College Hospital, Sector 32, Chandigarh; and copy of letter, dated 2.8.2004 addressed to the Medical Superintendent, Government Medical College Hospital, Chandigarh by Dr. Atul Sachdeva, Professor & Head, Government Medical College Hospital, Sector 32B, Chandigarh.
Opposite parties have also filed affidavit of Dr. Paul, R.K. Rajindra, Medical Superintendent, Maple Leaf Hospital, Kangra, dated 28.8.2004 and affidavit of Shri Sanjeev Chauhan, S.H.O., P.S. Kangra, dated 15.10.2004.
11. Opposite party No.3 in support of its case had filed affidavit of Shri K.K.Walia, Branch Manager of New India Assurance Co. Ltd., Dharamshala alongwith letter, dated 23.2.2005, Annexure OP3-1, addressed to the Branch Manager of O.P. No.3-Insurance Company at Dharamshala by Dr. Ranbir Kumar Chaudhary of R.K. Nursing Home, Birta, Kangra; copy of Professional Indemnity policy, Annexure OP3-2; and copy of Professional Indemnity cover note of Dr. R.K. Chaudhary issued by OP-Insurance Company, OP3-3.
12. We have heard the learned Counsel for the parties and we have gone through the record of this case minutely. Mr. Praveen Chandel, learned Counsel for the appellants argued that in the present case as per report of sonography conducted by Makkar Scanning Centre, no abnormality was found in the report, Ex. CW1/C. Since there was no abnormality in the abdomen of the deceased, as such the opposite parties have wrongly diagnosed the patient for Menorrhagia fibroids uterus and admitted in the hospital for surgical operation and operated her. He also argued that there is also negligence on the part of opposite parties in administering anaesthesia to the patient while operation was done as the deceased, Smt. Usha Kumar, started vomiting after administering anaesthesia injection and she felt difficulty in breathing after operation also. The condition of the deceased had deteriorated which had not improved till the intervening night of 15/16th July, 2003 and as such she was got discharged from the said hospital and was referred to C.M.C., Ludhiana on 16.7.2003 where she had passed away at about 1.00 A.M. on 16.7.2003. As such in the present case there is a clear negligence on the part of the opposite parties in treating the deceased, Smt. Usha Kumari, in the hospital and he had also argued that the doctor had informed the complainant that there was acute deficiency of blood in the patient. As such, as per him there is negligence on the part of doctors in operating the patient.
13. He also argued that there was no technical expert in the application of anaesthesia and no facility of blood bank was there and other arguments were to the effect that no proper record of the treatment given to the deceased in the present case had been maintained by the opposite parties. He had placed reliance upon the affidavit of Shri Madan Lal, complainant, in support of his contention regarding plea of medical negligence on the part of the opposite parties No.1 & 2 and as per him the complainant in the present case had been able to prove the medical negligence on the part of opposite parties No.1 & 2 and they are entitled for the compensation to the tune of Rs.10,00,000/- as prayed in the complaint and finding of the Forum below to the effect that the complainants have failed to prove medical negligence on the part of opposite parties No.1 & 2 is not legally sustainable.
14. Mr. Rajiv Rai, Advocate appearing vice Counsel for respondents No.1 & 2 had supported the order of the Forum below and as per him there was no medical negligence on the part of opposite parties in operating the deceased, Smt. Usha Kumar and he had placed reliance upon the affidavits of Dr. R.K. Chaudhary, Ex.OPW-1 and the various documents relating to treatment Ex. RC to RH and also relied upon the affidavit of Dr. (Mrs.) Meenakshi Makkar, Ex.OPW-2 and affidavit of Dr.Atul Sachdev of Government Medical College & Hospital, Sector-32, Chandigarh who had treated her in the said hospital. As per him, there is no medical negligence of any kind in the treatment of the patient i.e. in conducting operation of the deceased, Smt. Usha Kumar.
As per him Dr. Atul Sachdevas affidavit, it is clearly evident that the cause of death is post operative Pancreatitis cum sepsis and cardiorespiratory shock and he had given detailed reasons in para-4 of the affidavit and as per him Dr. Sachdeva has clearly deposed in the affidavit that the disease of pancreatitis does not relate to surgery and as such there was no negligence of any kind in operating Smt. Usha Kumari by the opposite parties and diagnosing the patient suffering from Menorrhagia fibroids uterus and the Forum below had rightly concluded that the complainants have failed to prove any medical negligence on the part of the opposite parties. His main thrust of arguments was to the effect that no expert evidence has been led in the present case to prove medical negligence on part of the opposite parties in the present case. Opposite parties No.1 & 2 have also filed written arguments which may be perused from pages No.207 to 229 of the complaint file.
15. Mr. Ratish Sharma, learned Counsel for the Insurance Company has also supported the order of the Forum below and as per him there is not an iota of evidence on record to prove medical negligence on the part of the opposite parties. He had also placed reliance upon the affidavits of Dr. (Mrs.) Meenakshi Makkar and Dr. Atul Sachdev in support of his plea and as per him in view of detailed averments made in these affidavits, no negligence can be attributed to the opposite parties in the present case and the complainants in the present case have not produced any expert evidence to prove the fact that the death of the deceased, Smt. Usha Kumar had occurred due to negligence on the part of the opposite parties in treating the patient/operating her. He had placed reliance upon the decision of the Honble Supreme Court in the case of C.P.Sreekumar (Dr.) Versus S. Ramanujam, II (2009) CPJ 48 (SC) and that of the Honble National Commission in the case of Ajay Kumar Gupta (Dr.) Versus Indira Gandhi Institute of Medical Sciences & anr., III (2008) CPJ 238 (NC).
There is no dispute about the legal proposition laid down in the judgment of the Honble Supreme Court as well as of the Honble National Commission.
16. After hearing the learned Counsel for the parties and after going through the record of the case minutely, we are of the considered view that there is no infirmity in the order of the For a below who had concluded that the complainants have failed to prove any medical negligence on the part of opposite parties No.1 & 2 and the finding to the effect that the expert evidence adduced by the opposite parties No.1 & 2 in support of their defence remains unrebutted on record. Reason being that in the present case there is no force in the contention of the learned Counsel for the appellants that since the sonography report does not depict any abnormality and as such the operating of the patient, Smt. Usha Kumari was an act of gross negligence on the part of the opposite parties in operating the deceased. There is no force in this contention since as per affidavit of Dr.(Mrs.) Meenakshi Makkar, this fact is clear as per averments made in her affidavit to this effect which is which is extracted below for ready reference:-
any lesion of the dimensions of two centimeters or less with inadequate heterogenicity is likely to be missed and more so when it is present in posterior wall of the uterus. As rightly said and taught in medical text Images (i.e. Scan films) are good servants (guide) but bad masters the report of it is always to be correlated by the Specialist concerned with his/her clinical findings of the particular patient.
Even this fact is clear from the record that this patient was treated earlier in Maple Leaf Hospital, Kangra for Fibroids Uterus and Ovarian Cyst, which hospital advised the patient to get the sonography done of the whole abdomen from Makkar Scanning Centra, Kangra and after going through the said report admitted her in their Nursing Home, but while filing complaint, no record pertaining to the treatment taken by her in the Maple Leaf Hospital, Kangra placed on record which also goes contrary to the pleas taken by the complainant in the present case as it has been withheld by the complainant in the present case. Even as per affidavit of Dr. Atul Sachdeva this fact is very clear that the cause of death in the present case was post operative pancreatitis cum sepsis and cardio-respiratory shock and the said doctor who had treated the patient in Government Medical College & Hospital, Sector-32, Chandigarh had clearly stated in his affidavit in para-4 thereof, which is extracted below for ready reference:-
4. That the pancreatitis is a disease of unknown cause and can occur to any individual at any time. It can occur in some post operative cases but in generally relating to surgery around pancreas. It can be serious in 15-20% cases. Sepsis can be a part of this disease. It is not relating to Adnexae surgery i.e. TAH done in the case of Smt. Usha Kumari.
As such, Dr. Atul Sachdev had clearly deposed that the cause of death in this case is not relating to Adnexae surgey i.e. TAH done in the case of Smt. Usha Kumar on which evidence of the expert and even the affidavit of Dr. R.K. Choudhary of R.K. Nursing Home goes un-rebutted in the present case since no expert evidence has been led to the effect that the death of deceased patient Smt. Usha Kumari had occurred due to negligence in treating/operating the patient in the present case, which was essential to be proved by the complainants in the present case in view of the judgment of the Honble National Commission in the case of Shibshree Bannerjee V. Pearless Hospital & B.K. Roy Research Centre & Ors. III (2009) CPJ 88 (NC) and the Honble Supreme Court in the case of Ins. Malhotra V. Dr. A. Kriplani & Ors., II (2009) CPJ 18 SC.
17. Even treatment record of the patient which is placed on record, Annexures OPW1/A to OPW1/E clearly depicts that day to day notings/condition of the patient was recorded in the treatment sheet by the doctors from time to time and even pathologidcal tests of the deceased viz. blood sugar, blood urea, serum creatinine, serum bilirubin, Hb etc. have been got conducted by the opposite parties in the hospital in the present case.
18. This fact has also come on record in the affidavit of Dr. R.K. Choudhary that their Nursing Home is functioning for the last 12 to 15 years and the present one is not the only operation of this kind done in the Nursing Home and many patients have been operated upon, treated and benefitted. He has further deposed that both the doctors are post graduates with vast professional experience of more than twenty-five years in the government jobs and later on in the private practice. However, no cross examination of this witness and other witnesses whose affidavits have been tendered by the opposite parties in the present case has been conducted by the appellants by calling them for the purpose. This fact is also evident from the treatment chart that anaesthesia which was administered was local one and it is not expected that the doctors who had treated the patient could not administer the anaesthesia as both the said doctors according to the affidavit, Ex.OPW.1 of Dr. R.K. Choudhary, R.K. Nursing Home, are post graduates with vast professional experience of more than twenty-five years in the Government jobs and later on in private practice as already stated supra. As such, there is no force in the arguments of the learned Counsel for the appellants that the doctors who had administered the anaesthesia was not competent to administer the same and as a result of his negligence the patient had developed breathlessness etc.
19. It is also evident from the record that the patient was asked by the doctors to come after some time but she herself consented for the operation which fact is evident from the consent given by Shri Madan Lal, husband of the deceased as per Annexure OPW1/E. This is also apparent from the perusal of this Annexure that complainant had himself requested for discharge of the patient in order to take her to CMC, Ludhiana and accordingly she was discharged on 16.7.2003 and thereafter taken to Government Medical College and Hospital, Sector-32, Chandigarh where she breathed her last on the same day.
20. In the present case, heavy onus lies upon the complainants to prove medical negligence which can be discharged by cogent evidence. Mere averment in the complaint which is denied by other side, is no evidence by which complainants case can be proved and in the present case this onus has not been properly discharged by the complainants and there is no reliable and convincing evidence placed on record to prove medical negligence in the present case as complainants in the present case have failed to discharge the onus which heavily lies upon them. Our view is supported by the judgments of the Honble Supreme Court in the case of C.P.Sreekumar (Dr.) Versus S. Ramanujam, II (2009) CPJ 48 (SC).
21. The broad principles on which medical negligence as a tort has to be evaluated, have been laid down by the Honble Supreme Court in the celebrated case of Jacob Mathew Vs. State of Punjab & anr., 2005 CTJ 1085 (SC) (CP) wherein the Bench finally concluded its opinion as follows:-
We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused 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. 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 the 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. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. 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 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.
(4) The test for determining medical negligence as laid down in Bolam case (1957)2 All ER 118 (QBD) holds good in its applicability in India.
22. The basic principle relating to medical negligence is known as BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam v. Frierr Hospital Management Committee (1957) 1 WLR 582, as follows:-
Where you get a situation which involves theuse of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.
A man need not possess the highest expert skill. It is well- established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
Bolams test has been followed after it was approved by the Honble Supreme Court in Jacob Mathews case, and number of other cases..
In Halsburys Laws of England the degree of skill and care required by a medical practitioner is stated as follows:
The practitioner must bring to his task a reasonable detgree 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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown, (1) that there is a usual and normal practice;
(2)that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had be been acting with ordinary care.
23. Honble Apex Court in para 41 in its recent judgment, in the case of Martin F.Dsouza Vs. Mohd. Ishfaq has observed as under:-
A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
24. No other point was urged.
Keeping in view the aforesaid facts and circumstances and evidence which has come on record and legal position explained above, we are of the considered view that there was no negligence on the part of opposite parties No.1 & 2 in carrying out the medical treatment/operating the deceased Smt. Usha Kumar who had been treated by the opposite parties No.1 & 2 with reasonable degree of skill, care and knowledge which is expected from a legal practitioner and there is no reason to differ from the order passed by the District Forum, Kangra at Dharamshala, in Consumer Complaint No.534/2003, dated 16.1.2009. Accordingly, while upholding the order of the District Forum, Kangra at Dharamshala passed in Consumer Complaint No.534/2003, dated 16.1.2009, this appeal is dismissed, with no order as to costs.
Copy of this order be supplied to the parties free of cost as per rules.
Shimla, Announced on July 20, 2011.
( Chander Shekhar Sharma ) Presiding Member ( Prem Chauhan ) Member