State Consumer Disputes Redressal Commission
Smt. Nidhi Jain vs Jeevan Anmol Hospital & Anr. on 26 November, 2024
FA- 199/15
FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024
FA-102/15
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Decision: 26.11.2024
FIRST APPEAL NO. :-199/2015
IN THE MATTER OF:
DR. ANANT KUMAR SINHA
C/O JEEVAN ANMOL HOSPITAL
R/O 54, UTTRANCHAL APARTMENTS
I.P. EXTENSION, NEW DELHI-92
(Through: Mr. Supantha Sinha alongwith Mr.Anil Kumar Mishra,)
.....Appellant
VERSUS
1. MRS. NIDHI JAIN
D/O SH. ADISHWAR JAIN
W/O SH. VIKAS DEEP JAIN
R/O 2325, SECTOR-15, SONEPAT, HARYANA
(Through: Mr. Vikas Deep, Advocate)
2. JEEWAN ANMOL HOSPITAL
MAYUR VIHAR PHASE-1
OPPOSITE PARTAP NAGAR
DELHI-1100091
(Through: Mr. Pradeep Kumar and Ms. Monica Kumar, Advocates)
3. UNITED INDIA INSURANCE COMPANY LTD.
CAPITAL CINEMA BUILDING
VIDHAN SABHA MARG,
PAGE 1 OF 34
FA- 199/15
FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024
FA-102/15
LUCKNOW U.P.226001
(Through: Ms. Nandita Saxena, Advocate)
...Respondents
WITH
FIRST APPEAL NO. :-139/2015
IN THE MATTER OF:
JEEWAN ANMOL HOSPITAL
MAYUR VIHAR PHASE-1
OPPOSITE PARTAP NAGAR
DELHI-1100091
(Through: Mr. Pradeep Kumar and Ms. Monica Kumar)
.....Appellant
Versus
1. MRS NIDHI JAIN
D/O SH. ADISHWAR JAIN
W/O SH. VIKAS DEEP JAIN
R/O 2325, SECTOR-15, SONEPAT, HARYANA
(Through: Mr. Vikas Deep, Advocate)
2. DR. ANANT KUMAR SINHA
C/O JEEVAN ANMOL HOSPITAL
R/O 54, UTTRANCHAL APARTMENTS
I.P. EXTENSION, NEW DELHI-92
(Through: Mr. Anil Kumar Mishra, Advocate)
3. UNITED INDIA INSURANCE COMPANY LTD.
CAPITAL CINEMA BUILDING
VIDHAN SABHA MARG,
LUCKNOW U.P.226001
(Through: Ms. Nandita Saxena, Advocate)
...Respondents
PAGE 2 OF 34
FA- 199/15
FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024
FA-102/15
WITH
FIRST APPEAL NO. :-102/2015
IN THE MATTER OF:
MRS. NIDHI JAIN
D/O SH. ADISHWAR JAIN
W/O SH. VIKAS DEEP JAIN
R/O 2325, SECTOR-15, SONEPAT, HARYANA
(Through: Mr. Vikas Deep, Advocate)
.....Appellant
Versus
1. JEEWAN ANMOL HOSPITAL
MAYUR VIHAR PHASE-1
OPPOSITE PARTAP NAGAR
DELHI-1100091
(Through: Mr. Pradeep Kumar and Ms. Monica Kumar)
2. DR. ANANT KUMAR SINHA
C/O JEEVAN ANMOL HOSPITAL
R/O 54, UTTRANCHAL APARTMENTS
I.P. EXTENSION, NEW DELHI-92
(Through: Mr. Anil Kumar Mishra, Advocate )
3. UNITED INDIA INSURANCE COMPANY LTD.
CAPITAL CINEMA BUILDING
VIDHAN SABHA MARG,
LUCKNOW U.P.226001
(Through: Ms. Nandita Saxena, Advocate)
...Respondents
PAGE 3 OF 34
FA- 199/15
FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024
FA-102/15
CORAM
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. By this Common Judgment, we shall dispose of the present appeal FA-
199/2015 alongwith connected appeals FA-139/2015 & FA-102/2015 arising out of the common Impugned Order dated 28.01.2015 in Complaint Case No. 1038/2011 titled 'Smt Nidhi Jain vs Jeevan Anmol Hospital & Ors' passed by the District Consumer Disputes Redressal Commission-East, Saini Enclave, Delhi-92 wherein the Complainant was as follows:
1) Smt. Nidhi Jain and the Opposite Parties were as follows:
1) Jeevan Anmol Hospital
2) Dr. A.K. Sinha ( Treating Doctor)
3) United India Insurance Company Ltd.
2. FA-199/2015 titled 'Dr. Anant Kumar Sinha Vs Smt Nidhi Jain' has been preferred by the by the Opposite Party No.2-Dr. A.K.Sinha praying to set aside the impugned order dated 28.01.2015.
3. FA-139/2015 titled 'Jeevan Anmol Hospital Vs Nidhi Jain & Ors' has been preferred by the Opposite Party No.1-Jeevan Anmol Hospital praying to set aside the impugned order dated 28.01.2015.
4. FA-102/2015 titled 'Nidhi Jain Vs Jeevan Anmol Hospital & Ors' has been filed by the Complainant-Nidhi Jain seeking enhancement of compensation.
PAGE 4 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15
5. For the sake of clarity, the parties have been hereinafter referred to as per their denominations in FA No.199/2015.
6. The facts of the case as per the District Commission record are as under:
"The brief conspectus of facts of the present complaint are that the father of the complainant expired on 19/12/2009 leaving behind two legal heirs namely Smt Nidhi Jam, the complainant herein, and Shri Abhishek Jain, the brother of the present complainant. At the time of death, Sh. Adishwar Jain, the father of the complainant was in service of Central Warehousing Corporation and was earning about Rs.55,000/-p.m. On 19/12/2009 at about 04:00AM Sh. Adishwar Jain came to the Respondent No.I hospital with complaint of chest pain associated with ghabrahat and sweat and was admitted to the hospital under the observation of Respondent No.II. After preliminary investigations and ECG, he was diagnosed Acute Anterior Wall Myocardial Infraction It is alleged that from 04:30AM till 11:45AM he was not given proper treatment. It is alleged that the hospital had no infrastructure, special ward and requisite facilities to treat patients suffering from myocardial infraction due to which neither the father of the complainant was treated with angioplasty nor any diagnostic tests were done. He was not referred to another hospital. At about 11:45AM the patient became breathless and frothing from mouth. He was diagnosed to have Cardio-respiratory arrest without conducting any necessary diagnosis He was declared Dead at 12:45 PM. The complainant has alleged negligence and PAGE 5 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 deficiency in service on the part of the Respondent Nos.I & II. She has prayed for a compensation of Rs 12,00,000/- towards pecuniary damages for loss of earning and Rs 5,00,000/- towards pain and suffering along with interest #15% p.m. from the date of filing of complaint till realization.
Notices were issued to the respondents. All the respondents have contested the present complaint and have filed their respective written versions In the written statement filed by Respondent No.I, it has raised the plea of limitation, non-joinder of her brother, the other legal heir of her father Sh. Adishwar Jain and the United India Assurance Co. Ltd. as necessary parties to the present Complaint. It has denied the allegations of negligence levelled by the complainant.
In the written statement filed by Respondent No.II besides raising the plea of limitation, it has contended that the complainant is not a consumer as defined in the The Consumer Protection Act, 1986 and has no locus standi to file the present complaint The Respondent No.I has denied allegations of negligence in the treatment of Sh Adishwar Jain and has refuted that he was deficient in providing services to him.
In the written statement filed by Respondent No.III, the Insurance Company, it is submitted that the Respondent Hospital had taken a Professional Indemnity (Medical PAGE 6 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 Establishment) Policy for the period 17/05/2009 to 16/05/2010 to provide insurance protection to the doctors/ hospital against their legal liability and to pay damages arising out of negligence in the performance of their professional duties. It has also raised the plea that in view of the judgment of the Hon'ble Supreme Court in Martin Souza vs. Mohd Ishfaq Civil Appeal No. 3541 of 2002 wherein following the dictum of Jacob Mathew's case it has been held that the matter should be referred to a committee of doctors specialized in the field and it is only on their reporting prima face case of medical negligence that the notice should be issued. It has denied allegations of medical negligence and has also raised the plea of limitation.
Two applications one moved by the complainant for the impleadment of Dr. AK Sinha, the treating doctor, and the other application moved by the Respondent No.I for the impleadment of the United India Assurance Co. Ltd. as necessary parties to the present complaint were allowed vide Order dated 07/09/2012 and both Dr. A.K Sinha the treating doctor, and the United India Insurance Co. Ltd., were impleaded as necessary parties to the present complaint.
An application was moved on behalf of Respondent No II for the constitution of Medical Board for its expert opinion for examination of the present complaint for the allegations of medical negligence in view of the judgments of the Hon'ble Supreme Court in Jacob PAGE 7 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 Mathew vs. State of Punjab (2005) 6 SCC 1: Martin D'Souza vs. Mohd Ishfaq (2009)3 SCC 1, &, V. Kishan Rao vs. Nikhil Super Speciality Hospital & Anr (2010) 5 SCC 513.
Evidence by way of affidavit filed by the complainant and Respondent No.III only in support of their respective cases. No evidence by way of affidavit filed by Respondent Nos 1 & 11.
7. The District Commission, after taking into consideration the material available on record, passed the order dated 28.01.2015, whereby it held as under:
"Heard and perused the record.
Before going into the merits of the plaint. two issues need to be decided:
(1) The plea of limitation raised by all the respondents to the present complaint & (2) An application moved on behalf of Respondent No. II for the constitution of a Medical Board for its expert opinion for examination of the present complaint for the allegations of medical negligence in view of the judgments of the Hon'ble Supreme Court in Jacob Mathew vs. State of Punjab 2005 6 SCC 1 Martin D'Souza vs. Mohd. Ishfaq (2009) 3 SCC 1, &. V. Kishan Rao vs Nikhil Super Speciality Hospital & Ans (2010) 5 SCC 513 prior to the issuance of notice to the doctor/hospital.
PAGE 8 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 With regard to the plea of limitation raised by all the respondents on an in depth scrutiny of the record it has transpired that the present complaint was filed an 16.22/2011 well within the stipulated period of two years reckoning from 19/12/2009 the date on which the cause of action had arisen to the complainant. The present complaint, thus, falls within the limitation period prescribed under Section 24A of the Consumer Protection Act, 1986. As such the plea of limitation raised by all the respondents is not tenable.
Coming to the issue mentioned supra as Seriatim No. (2), on perusal of the record it is not in dispute that the father of the complainant was brought to the Respondent Hospital on 19/12/2009 with complaint of chest pain associated with ghabrahat and since 04:00 AM and was admitted to the respondent hospital on 19/12/2009 at around 05.30AM vide Admission No.22212. It is also not in dispute that he was attended to Is Respondent No.II-Dr. AK Sinha, MBBS, DTCD. Chest Specialist who diagnosed him to be suffering from Acute Anterior Wall Myocardial Infraction The father of the complainant had cardio-respiratory arrest at about 12.05PM and was declared dead at 12 PM on 19/12/2009. In order to decide the application of the Respondent No. II we have thoroughly scrutinized the documents placed on record by the parties to the present lis. Dr. Anant K Sinha, the Respondent has filed on record alongwith his Witten Statement "Case Summary PAGE 9 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 of the patient Sh Adishwar Jain as Annexure R-1 Paper Nos. 12 and 13 of his written statement. The Case Summary issued by Dr. Anant K Sinha on 14/06/2013 bears his signature and seal/stamp disclosing the fact that he is merely a MBBS, DTCD Chest Specialist. It is, thus, and admission by Respondent No.II that is a holder of only a Bachelor of Medicine and Surgery alongwith a Diploma in Tuberculosis and Chest Diseases (DTCD) and does not possess any post graduation specialization especially in the field of Cardiology so as to possess the specialized skill to handle cases of myocardial infraction and what to say of cases of Acute Myocardial infraction. It is further stated by Respondent No.II in Para 2 of the said Case Summary that after admission immediately he was treated as a case of Acute Coronary Syndrome and shifted to Intensive Care Unit and the primary emergency treatment for the same had started in the Casualty itself. This leaves no room for doubt that Dr. Anant K. Sinha who was only a physician was well aware of the condition of the patient now deceased and the fact that the situation warranted immediate medical attention of an expert and competent cardiologist. Not an iota of evidence has been placed on record by the Respondent No.II that after he had diagnosed the father of the complainant to be suffering from Acute Anterior Myocardial Infraction he had without losing any time called for any cardiologist of the Hospital competent to handle the case for further specialized treatment to meet the medical exigency nor had he taken steps to shift him PAGE 10 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 to the Intensive Coronary Care Unit of the Hospital. Instead he kept the deceased under his treatment and shifted him to Intensive Care Unit only. Further no cogent documentary evidence has been placed on record by the Respondent Hospital to show that it was having a well qualified and competent team of Cardiologists and a separate Cardiology Wing fully equipped with all infrastructure and paraphernalia to treat cardiac patients and to meet all types of medical emergencies relating to cardiology. Taking into consideration the facts, observations and discussion made supra, there is not a scintilla of doubt that the Respondent Hospital was neither having any cardiologist on its roll/panel nor was it having any exclusive Cardiology Wing to treat cardiac patients. Further, in the present case. Dr. Sinha has failed to place on record any cogent documentary evidence to show that he ever informed the relatives/attendants about the deteriorating condition of the deceased and the fact that he needed to be shifted to some other hospital for treatment. He has also failed to substantiate his contention that after consultation with the relatives/attendants of the deceased Cardiac Ambulance of Escorts Hospital was arranged for shifting him to that hospital but the same was cancelled as the relatives of the patient changed their mind. Infact, there is not an speck of evidence to show that Respondent No.II had ever suggested even faintly to the relatives/attendants of the deceased about the limitations of the Respondent Hospital and the fact that PAGE 11 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 it was not an ideal place for treatment of patients suffering from myocardial infraction. On the contrary, he continued to treat the patient and thus, by has conduct he conspired with the Respondent Hospital in its unfair practice of swindling money out of the pockets of the patients on the pretext of giving treatment to them in utter disregard of the precious human lives with which they were playing to satisfy their monetary greed.
In his application for the constitution of a Medical Board, Respondent No.II has placed reliance on the judgments of the Hon'ble Supreme Court in Jacob Mathew s State of Punjab (2005) 6 SCC 1; Martin F. D'Souza vs. Mohd. Ishfaq (supra) and V Kishan Rao vs Nikhil Super Speciality Hospital and Another 2010 CTJ 868 (Supreme Court) (CP) It is significant to mention here that Respondent No.II has tried to read the judgment of V.Kishan Rao vs Nikhil Super Speciality Hospital and Another (supra) wherein the other two judgments as mentioned above were referred to buttress his claim but on an indepth study of the judgment of V. Kishan Rao vs. Nikhil Super Speciality Hospital and Another (supra) it has been observed that the judgment of Martin F. D'Souza vs. Mohd. Ishfaq (supra) wherein the judgment of Jacob Mathew vs. State of Punjab (2005) 6 SCC 1 was relied upon has been overruled by the Hon'ble Apex Court and has further gone to hold that there cannot be a mechanical or strait jacket approach that each and every case of alleged medical PAGE 12 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 negligence must be referred to experts for opinion. Expert Opinion is needed to be obtained only in appropriate cases of medical negligence and the matter may be left to the discretion of the Consumer Forums especially when retired Judges of the Supreme Court and High Courts are appointed to head the National Commission and the State Commissions. It is pertinent to mention here that each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. The Respondent No.II has tried to mislead this Forum by relying upon an extract of the judgment which gave strength to his contention and not reading the judgment as a whole. Taking into consideration the observations and discussion made supra, we arrive at an inference thar the Respondent No.II has failed to act in a prudent manner as he did not possess the requisite and specialized skill to handle the case of the deceased which he professed to have possessed Indeed, he had failed to observe the protocol of the medical profession while treating the deceased. In these circumstances, it is not necessary that cases must be referred for expert evidence, when the negligence on his part is apparent on the face of the record. In these circumstances, the judgment of V. Kishan Rao vs Nikhil Super Speciality Hospital and Another (supra) will be of no aid to the PAGE 13 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 Respondent No.II and the application moved by Respondent No.II is dismissed in view of the above, the contention raised by the hospital of reference of the present complaint to a panel of doctors specialized in the field prior to the issuance of notices to the hospital/doctor is, thus, not tenable.
A stitch in time would have saved the life of the deceased. Had the doctor trounced his greed and taken a judicious decision to shift the deceased from the Respondent Hospital to a hospital equipped with all facilities to meet cardiac exigencies and to put him under the treatment and care of an expert cardiologist he would have saved a precious human life as in such situations every second gone without proper treatment counts heavily on the life of the patient. It is significant to mention here that human beings tend to submit their lives to the best of the judgment of their treating doctors without verifying his or her credentials on the belief that they are supposed to be qualified enough to meet any medical exigency arising out during the treatment for which they were approached and if such person, to whom the patient feels that he is the only one who can save their lives on earth after the God does not observe the professional ethics he is supposed to follow then such treating doctor requires the severest of the punishment for violating the conjectural oath and the ethics of the medical profession. The above facts leave no room for doubt that the role played by the treating PAGE 14 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 doctor in the treatment of the deceased is exceptionally unjustifiable and inexcusable.
Hospitals undertaking treatment, when they are not having well qualified and competent doctors on its roll/panel and not well equipped, for their sole monetary gain should not be allowed to play with the lives of the people and the administration should very heavily come down upon them and take every possible stringent action to nail their malpractices by revoking the license of such establishments, may it be private hospitals or nursing homes or other hospitals. This be made a mandatory precondition for the grant of license that hospitals or nursing homes should be well equipped with all indispensable equipments etc necessary to meet any medical exigency. We strongly feel that such doctors should be debarred from practicing as a doctor by the Medical Council of India by revoking their registrations for lifetime so as to preclude them from playing with the lives of the individuals. This is not only one case where inefficiency and negligence have come to the light of the courts. It is high time that the Medical Council should take stringent action against the erring members of the medical fraternity who have made this noble profession a means of extorting money from the masses who avail the services of the medical fraternity in their hour of distress.
Reverting back to the fact of the present complaint it is pertinent to mention here that the allegation of the PAGE 15 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 Respondent No. II with regard to the complainant being a heavy smoker is also without any basis as it has not been supported by any entry to this effect while writing the history of the patient at the time of admission into the res hospital.
With regard to the contention that the relief claimed by the complainant cannot be granted to her in puce meal as she has claimed her 50% share & no complaint has been filed by the other legal heir of the deceased, Sh. Abhishek Jain, the brother of the complainant here. In the case in hand though the present complaint has been filed by Smt. Nidhi Jain, the aggrieved daughter of the deceased only but it is not out of place that her brother, Sh. Abhishek Jain, is equally distressed as Smt Nidhi Jain and both of them have been deprived of the affection of their father and the vaccum created is their lives by the death of their father due to the malpractice of the Respondent Nos.I & II. As such even though Sh. Abhishek Jain is not a co-complainant in the present complaint, he is equally entitled to relief alongwith the complainant being the other legal heir of the deceased. He is further restrained from filing any other complaint on the same facts and with the same cause of action as involved in the present complaint.
Further, in the case in hand, in view of the indemnity under the Professional Indemnity (Medical Establishment) Policy taken by the Respondent Hospital PAGE 16 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 for the period 17/05/2009 to 16/05/2010 from the Respondent No. III which applies specifically to claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission or negligence in professional service rendered or which should have been rendered by the insured or qualified assistants named in the schedule or any nurse or technician employed by the insured, the present compliant of the complainant is covered by the indemnity clause as the negligence of the respondent hospital and the treating doctor has resulted in the death of Sh. Adishwar Jain, the father of the complainant. As such the Respondent No.III is liable to compensate the complainant and her brother on behalf of the Respondent Hospital.
Taking into consideration the observations and discussion made supra we hold the Respondent Nos.I & II guilty of medical negligence, unfair trade practice and deficient in providing services to the father of the Complainant. We award a compensation of Rs.5,00,000/- to be payable by the Respondent No.III on behalf of the Respondent No.I and this amount shall be shared equally by both the complainant and her brother, Sh. Abhishek Jain. We, further, direct the Respondent No.II to pay Rs.1,00,000/- to the complainant and her brother, Sh. Abhishek lain which is also to be shared equally by both of them. This shall act as a deterrent to the incompetent doctors not to indulge in treating PAGE 17 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 patients when they do not possess the requisite skill. The respondents shall comply with the order within 45 days from the date of this order. If this amount is not paid within 45 days from the date of the order the complainant and her brother shall be entitled to interest @10% pa. on the amount of compensation so awarded till it is finally paid to the complainant and her brother. Compensation claimed by the complainant on the ground of loss of future earning is not allowed to her as she is married and has no concern with the future earning of her father as no party can be allowed to make unjust enrichment.
Copies of the order be supplied to the parties as per rule.
Let the copy of this order be sent to The Medical Council of India for taking steps for the cancellation of the registration of the hospital as well as of the doctors. A copy should also be sent to the Chief Secretary, Govt. of NCT of Delhi and also to the Ministry of Health, Govt. of India for necessary follow up action at their end. We direct that the action taken by The Medical Council of India and the Government shall be intimated to this Forum within two months from the date of this judgment."
8. Aggrieved by the aforesaid decision of the District Commission, the Appellant/Opposite Party No.2-Treating Doctor, has preferred the present Appeal submitting that the District Commission arrived at the conclusion of negligence without considering proper evidence, PAGE 18 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 rendering the order arbitrary and untenable in the eyes of law. Secondly, it is submitted that the District Commission failed to appreciate the necessity of obtaining an expert medical opinion, given that the core issue pertains to medical negligence which demands specialized knowledge for arriving at a conclusion. It is further submitted that only a medical expert or a medical board can adequately determine medical negligence, and the Commission should have referred the matter to such board accordingly. Thirdly, it is submitted that the District Commission disregarded the Bolam Rule, as established in Jacob Mathew's case. Additionally, it is submitted that the District Commission erred in awarding compensation to a non-party, despite the Appellant's objections.. Fourthly, it is submitted that the District failed to observe that the burden to prove negligence lies on the Respondent/Complainant and the Respondent failed to furnish any expert opinion, resultantly failing to prove any negligence. Lastly, it is submitted that the treatment provided by the Appellant was as per the standard medical protocol and no negligence can be carved out on the part of the Appellant. Pressing the aforesaid submissions, the Appellant has prayed that the Impugned Order be set aside.
9. Vide order dated 31.08.2016, the Counsel for the Complainant /Respondent No.1-Nidhi Jain has submitted that she does not wish to file a reply to the present appeal. However, short written submissions have been filed by the Complainant/Respondent No.1 in the connected matter FA 102/2015 titled "Nidhi Jain Vs Jeevan Anmol Hospital" wherein it is alleged that the Opposite Party No.1-Hospital did not have the requisite facilities/infrastructure to treat the patient. Therefore, the most important treatment like angioplasty was not given to the patient. Secondly, it is submitted that the patient was not referred to any cardiologist/hospital equipped with the necessary facilities to treat the patient. It is further PAGE 19 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 submitted that the Appellant/Opposite Party No.2 is not a cardiologist but a general physician and was not competent to treat the patient. Lastly, it is submitted that valuable time was lost as the patient was not given any lifesaving/supportive therapy like angiography, diagnosis using echocardiogram as the Opposite Party No.1-hospital did not have the requisite facilities. Pressing the aforesaid contentions, the Respondent has prayed that the Appeal be dismissed with heavy costs.
10. Vide order dated 31.08.2016, the Counsel for the Respondent No.2/Opposite Party No.1-Hospital has submitted that Appeal filed by him i.e. FA-139/2015 may be treated as the reply to the present appeal wherein it is submitted that the District Commission failed to appreciate that the Opposite Party No.1-hospital is duly empanelled with the CGHS and no overcharging was done by the hospital and as such the CGHS rate were charged from the deceased/attendant and same is also evident from the bill annexed with the Appeal. Secondly, it is submitted that there was no occasion for the District Commission to come to conclusion that there was no proper report given by the Opposite Party No.1-hospital which is otherwise wrong as the case sheet/treatment record reveals that proper treatment and proper consent was taken by the treating doctor at all the levels of the treatment. Lastly, it is submitted that District Commission failed to appreciate the basic principle relating to medical negligence as contained in the "Bolam Rule".
11. Respondent no. 3/Opposite Party No.3-Insurance Company has filed its reply and has refuted therein any involvement in the original consumer dispute. It is submitted that the professional indemnity policy given by the Respondent No.3 solely covers Opposite Party No.1-Jeevan Anmol Hospital and not the Appellant/Opposite Party No.2-Dr. A.K. Sinha. Secondly, it is submitted that if any professional negligence is held against the Appellant-Dr. Anant Kumar Sinha, then such negligence is PAGE 20 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 not covered under the policy as the Appellant-Dr. Anant Kumar Sinha is not insured by the Respondent No.3-Insurance Company.
12. We have perused the material available before us and heard the counsels for the parties.
13. For the sake of clarity, the parties have been hereinafter referred to as per their denominations in FA No.199/2015.
14. The first question that falls for our consideration is whether the District Commission erred in holding the Appellant negligent, owing to the fact that the Appellant was not a cardiologist.
15. A bare perusal of the Impugned Order divulges that the District Commission has arrived at the conclusion that since the Appellant was not a cardiologist and the Respondent No.2-Hospital was not a cardiac hospital, the Appellant is liable for medical negligence in so much so that the Appellant did not refer the patient to a cardiologist/hospital with requisite facilities to treat Myocardial Infarction. The Impugned Order further contains an observation that the patient was admitted in the Respondent.No.2-Hospital at 4:00 AM and considerable time was wasted by the Appellant by not referring the patient to an adequate facility. However, we are not in consonance with the view taken by the District Commission. Here, it is to be noted that the a perusal of the document titled "Admission Record" clearly reflects the time of admission of the patient as 5:30 A.M. A further perusal of the record reflects that when the patient was bought to the Respondent No.2-Hospital, at around 5:30 A.M.in the morning, at that time the Appellant was the duty doctor. In our thoughtful opinion, a doctor owes a duty of care towards the patient and is duty-bound to attend to a patient in medical exigency, and as such, the Appellant-doctor in no manner could have refused to treat the patient.
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16. In this regard, the Hon'ble Apex Court in a celebrated judgment titled as Jacob Mathew v. State of Punjab and Anr (2005) 6 SCC 1 has observed as under:
"28. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation, and a quivering physician cannot administer the end-dose of medicine to his patient.
29. If the hands are trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason--whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort toward saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society."
17. Here, we deem it crucial to remark that the Appellant-doctor had no choice but to treat the patient presented before him in an acute emergency. The medical practitioner cannot leave the patient to his own fate in the case of PAGE 22 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 emergency and should make all possible efforts to save the patient, even if the chances of success dip down low. In our opinion, if a medical practitioner is made to face unnecessary litigation for merely attending to a patient in an emergency situation, then a medical professional would feel better advised to leave a patient in need of urgent medical attention, to his own fate.
18. The Hon'ble Apex Court Jacob Mathew (supra) has further held that simple lack of care, an error of judgment or an accident, is not a proof of negligence on the part of a medical professional. The Court held as under:
"48. 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". 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 PAGE 23 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 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."
19. What is to be gleaned from the aforesaid decisions is that a simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. To establish a claim for medical negligence, it is imperative to meet the following criterion i.e. firstly, the patient was owed a duty of care. Secondly, that duty was breached by a deviation from accepted standards of care. Thirdly, the patient suffered damages and fourthly, the damages suffered were a direct result of the medical provider's breach of duty.
20. At this point, we deem it pertinent to remark that every procedure related complication cannot be considered a result of malpractice unless it was caused by medical negligence. To constitute a procedure related injury in a medical facility, the injury must have been the direct result of a medical provider's failure in providing an acceptable level of care. For instance, a doctor failed to diagnose or misdiagnosed a condition that affects the PAGE 24 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 patient or the patient caught hospital acquired infection, or the doctor used a defective implant, the patient was overmedicated, or prescribed a medication that conflicted with another medication and/or the patient's condition was not assessed or managed correctly etc.
21. In order to carve out any negligence on the part of the treating doctor, it is crucial to analyze the conduct of the Appellant-doctor in the backdrop of the factual matrix of the present case.
22. Adverting to the facts of the instant case, it is clear from the record that on 19.02.2009, the patient was admitted to the hospital at 5:30 AM with complaints of chest pain associated with anxiety and sweating. The patient was promptly attended by the Appellant-doctor, and was diagnosed with acute coronary syndrome. The patient was immediately transferred to the Intensive Care Unit (ICU), and treatment was initiated in the casualty department, including the administration of beta blockers, aspirin 300 mg, clopidogrel 300 mg, Flavedon MR, PPI, Emset, and and oxygen inhalation. Serial electrocardiograms (ECGs) and Troponin- T tests indicated acute anterior wall myocardial infarction. Consent for thrombolysis with streptokinase ('STK') by Son-Abhishek Jain was obtained, and the patient underwent thrombolysis at approximately 8:15 AM.
23. From the extensive reading of medical literature on the subject, it has come to our knowledge that as per the standard medical protocol, thrombolytic therapy is recommended to be started as early as possible in patients with acute myocardial infarction. It has further come to our knowledge that the injection of Streptokinase can be administered by a doctor having MBBS degree. The Appellant being a chest specialist was therefore, competent to administer the said treatment. A perusal of the record reflects that as per PAGE 25 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 the standard medical protocol, the Appellant started infusing Streptokinase to the patient.
24. A subsequent echocardiogram (ECHO) performed by Dr. Ajay Karol revealed severe akinesis in the apical, interventricular septum (IVS), and anterior inferior areas, with a partially compensated left ventricular ejection fraction (LVEF) of 28±2%. At approximately 11:30 AM, the patient experienced breathlessness, exhibiting a pulse rate of 100/min, blood pressure of 140/90 mmHg, and bilateral wheeze with crepitation, indicating heart failure with pulmonary edema. The patient's relatives were again informed of the deteriorating condition and the immediate threat to life. Injection Lasix 40 mg was administered along with Efcorlin 200 mg, and a Dobutamine drip was initiated.
25. At around 12:30 PM, the patient suffered a sudden cardiorespiratory arrest.
Despite all resuscitative measures, including cardiopulmonary resuscitation (CPR), intubation, administration of adrenaline and atropine, and defibrillation (DC shock), the patient could not be revived and was declared deceased at 12:45 PM.
26. The aforesaid conduct demonstrates the preparedness and commitment to patient well-being through immediate admission, diagnosis, and initiation of treatment in the casualty department. The patient was properly thrombolysed and all appropriate medical procedures were followed during the treatment. Therefore, it is clear that the patient was treated as per standard medical protocol and there was no deviation from the standard medical procedure.
27. Another plea has been raised by the Respondent No.1 that the Appellant failed to refer the patient to a cardiologist/cardiac facility.
28. Here, we deem it appropriate to refer to decision of The Hon'ble Apex Court in C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam (2009) 7 PAGE 26 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 SCC 130 , wherein it was held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence as under:
"37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 :
2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia."
29. It is pertinent to note here that the Respondent No.1 has not assailed the treatment as provided by the Appellant-doctor. It is not the case of the Respondent No.1 that the Appellant-doctor provided wrong treatment to the patient nor any specific allegation pointing towards any discrepancy in the treatment or diagnosis of the disease, has been made by the Respondent No.1, to carve out negligence on the part of the Appellant. As regards the contention of the Respondent No.1 that the Appellant failed to refer the patient to a cardiologist/cardiac facility, the Appellant has submitted that the patient has to be kept under observation of a period of 1-2 hours after administration of Streptokinase and transportation/transfer during such period is dangerous. Here, we deem it crucial to remark that shifting a patient without offering him basic/primary treatment or stabilising his condition or confirming the availability of beds or treatment in another hospital can be equally fatal to the life of the patient and can amount to medical negligence.
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30. Recently, the Hon'ble Apex Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others (2021) SCC Online SC 673 held as under:
"11......Ordinarily an accident means an unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated. The learned counsel has also referred to the decision in Martin F.D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 wherein it is stated that simply because the patient has not favourably responded to a treatment given by doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitor. It is further observed therein that sometimes despite best efforts the treatment of a doctor fails and the same does not mean that the doctor or the surgeon must be held guilty of medical negligence unless there is some strong evidence to suggest that the doctor is negligent.
14.Having noted the aforesaid decisions , it is clear that in every case where a mishap or accident takes place, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception."
31. In the instant case, it is pertinent to remark here that the Respondent no.1/Complainant had led no evidence of experts to prove the alleged medical negligence except her own affidavits. The experts could have proved if the Appellant-doctor should have referred the patient directly for PAGE 28 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 angiography without primary treatment, and as such whether the Appellant providing treatment to the patient was deficient or negligent in service. A perusal of the medical record produced does not show any omission in the manner of treatment.
32. As discussed above, the sole basis of finding the Opposite Party negligent is by way of res ipsa loquitor which would not be applicable herein keeping in view the treatment record produced by the Appellant. For the application of the maxim res ipsa loquitur no less important a requirement is that the res must not only bespeak negligence, but pin it on the Opposite Party. Merely treating the patient in an emergency situation cannot be the ground for carving out negligence on the part of the treating doctor. The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the ailments in all probability.
33. The next issue that falls for our consideration is whether the District Commission erred in observing that no medical opinion is required in the present case.
34. Upon examination of the comprehensive medical records, it is irrefutable that established protocols for managing acute coronary syndrome were strictly followed. A review of the medical record confirms that the family- attendants of the patient were comprehensively informed of the patient's critical condition and poor prognosis. All necessary procedures, including thrombolysis, were undertaken solely after securing documented informed consent.
35. It is pertinent to remark here that the District Commission had made a specific observation that the treatment record nowhere mentions that the patient was a heavy smoker. However, it is to be noted that a perusal of pg-59 of the treatment record makes a clear mention that the patient had a history of heavy smoking, consuming approximately 30 cigarettes per day.
PAGE 29 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 A bare perusal of pg-63 of the treatment record further divulges that the relatives were promptly informed of the critical condition of the patient and informed consent was obtained from son of deceased-patient.
36. Furthermore, the Appellant has submitted that the patient could not be immediately shifted as there are cases of patients dying during transportation and generally normally invasive procedures are avoided and no fresh procedures are attempted for 24 hours after STK administration. On the other hand, the Respondent No.1 has submitted that the patient should have been referred for angiography immediately after the patient was diagnosed with Myocardial Infarction. In our thoughtful opinion, the aforesaid issue required specialised knowledge to determine the appropriate course of action and the District Commission erred by not seeking an expert opinion on the aforesaid issue.
37. Lastly, we deal with the issue whether the conduct of the Appellant and the Respondent No.2 caused the death of the patient and whether such conduct amounts to medical negligence.
38. Here, it is pertinent to refer to the decision of the Hon'ble Apex Court in Civil Appeal No. 1658 Of 2010 titled as "Bombay Hospital & Medical Research Centre Vs. Asha Jaiswal & Ors" decided on 30.11.2021, hereunder as:
"29. Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 it was observed that the doctor cannot be held liable for medical negligence by applying the doctrine of res ipsa loquitur for the reason that a patient has not favourably responded to a treatment given by a doctor or a surgery has failed. There is a tendency to blame the doctor when a patient dies or suffers some mishap. This is an intolerant conduct of the family members to not accept the PAGE 30 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 death in such cases. The increased cases of manhandling of medical professionals who worked day and night without their comfort has been very well seen in this pandemic. This Court held as under: -
"40. 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 straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally oury to the patten since the protesi resure in ation of the professional would be at stake. A single failure may cost him dear in his lapse.
42. 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 penalised for losing a case provided he appeared in it and made his submissions."
39. In another judgment reported as Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others (2010) 3 SCC 480 , a complaint was filed attributing medical negligence to a doctor who performed the surgery but while performing surgery, the tumour was PAGE 31 OF 34 FA- 199/15 FA-139/15 DR.ANANT KUMAR SINHA V. NIDHI JAIN & ORS D.O.D.: 26.11.2024 FA-102/15 found to be malignant. The patient died later on after prolonged treatment in different hospitals. The Hon'ble Apex Court held as under:
"47. The ratio of Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118] is that it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when 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. Secondly, 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 point of time on which it is suggested as should have been used.
78. It is a matter of common knowledge that after happening of 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. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Penal Code, 1860 has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Penal Code give adequate protection to the professionals and particularly medical professionals."
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40. A pursual of the medical record produced does not show any omission in the manner of treatment. The patient received appropriate thrombolytic therapy, and all necessary medical protocols related to informed consent were followed throughout the course of treatment. The hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence.
41. Therefore, in view of the aforesaid discussion, we opine that no medical negligence can be carved out in the present case. Accordingly, the FA- 199/2015 stands allowed and the order dated 28.01.2015 passed by the District Consumer Disputes Redressal Commission, East, Saini Enclave, Delhi-92, is set aside.
42. Consequently, in view of the finding that no medical negligence is established, FA-139/2015 titled 'Jeevan Anmol Hospital Vs Nidhi Jain & Ors' filed by the Opposite Party No.1-Jeevan Anmol Hospital praying to set aside the impugned order dated 28.01.2015 also stands allowed.
43. As regards the connected matter FA-102/2015 titled 'Nidhi Jain Vs Jeevan Anmol Hospital & Ors' filed by the Complainant-Nidhi Jain seeking enhancement of compensation, it is to be noted that as per the aforesaid discussion, no negligence is established. Therefore, in view of the same, the question of enhancement of compensation does not arise. Consequently, FA-102/2015 filed by the Complainant stands dismissed with no order as to costs.
44. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
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45. Copy of the judgment be placed in all three files.
46. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
47. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER(JUDICIAL) Pronounced on :
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