State Consumer Disputes Redressal Commission
Shree Ram Hosp. & Ors. vs Mohd. Kamil on 5 April, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
JUDGMENT RESERVED ON: 08.02.2021
JUDGMENT PRONOUNCED ON:05.04.2021
FIRST APPEAL NO. 611/2013
IN THE MATTER OF
M/S SHRI RAM SINGH HOSPITAL & ORS. .......APPELLANT
VERSUS
MOHD KAMIL ......RESPONDENT
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Mr. PRADEEP KUMAR, Counsel for the APPELLANT.
Mr. MUNAWAR NASEEM, Counsel for the RESPONDENT
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
[Via Video Conferencing]
1. The Appellant has preferred the present appeal under section 15 of the Consumer Protection Act, 1986 for quashing of the order dated 11.04.2013, passed by District Forum, Saini Enclave, East Delhi- 110092 in the Complaint bearing No. 89/2010 titled as "Mohd. Kamil V/S Shri Ram Singh Hospital".
2. Brief facts necessary for adjudication of the present appeal are that the Respondent approached the Appellant hospital on 05.03.2009, for the reason that the Respondent's daughter (hereinafter referred to as "the FA 611/2013 Page 1 of 12 patient") was suffering from abdominal pain. The patient was referred to Dr. Saurabh Kaushal, General Physician, who treated her for some time. However, since the patient could not be relieved of pain, Dr. Saurabh Kaushal referred the patient to the Gynecology department wherein she was treated by Dr. Seema Chopra. MRI of the abdomen was conducted on 18.05.2009 which reflected that there was hemorrhagic cyst in the left ovary measuring 15 X 15 X 13 mm.
3. The panel of doctors including Dr. Saurabh Kaushal and Dr. Seema Chopra along with Dr. Deepa Singh advised that the patient should undergo clinical correction by Laparoscopy to prevent further danger to life. The Respondent and the patient signed the consent letter and the patient underwent the treatment/operation which was conducted by Dr. Deepa Singh and Dr. Seema Chopra.
4. The Respondent was a member of Delhi Government Employees Health Scheme (hereinafter referred as "DGEHS") at the time of the treatment/operation. The Appellant Hospital was empaneled under the aforesaid policy. However, the Respondent was asked to deposit an amount of Rs. 20,000/-. The Respondent requested for the cashless/credit facility which was turned down and left with no other option, the respondent deposited an amount of Rs. 20,000/- with the appellant. A bill for Rs. 23,350/- was drawn along with Rs. 1,255/- for medicinal expenses.
5. After discharge from the hospital, the abdominal pain again persisted which was treated by Dr. Seema Chopra till 12.06.2009. However, since the respondent was not satisfied with the treatment provided by the appellant, the patient was then taken to Sant Parmanand Hospital for further treatment where she showed signs of improvement.
6. Alleging that the appellant hospital is liable for medical negligence since it failed to provide proper treatment to the patient and also the FA 611/2013 Page 2 of 12 failure of the appellant to provide cashless treatment in terms of the DGEHS, the Respondent approached the District Forum.
7. The Respondent alleged that there was no requirement for performing the surgery/operation as it did not cure the abdominal pain of the patient and the aftermath of which left three scars on the stomach of the patient. The District forum, in its order dated 11.04.2013 observed as under:
"It is also argued that procedure adopted by the OP has wrongly been recorded in the papers. There is contradictory stand apparent from the documents which have been provided by the OP to the complainant's daughter. The complainant has drawn our attention to the bill wherein 1079 Mayox operation has been recorded. The OP have filed on record along with the affidavit a list of hospital charges indicate other major operations, whereas 1111 is a Diagnostic Laparoscopy of which the charges have been mentioned as Rs 4000/- although there is a over-writing on the papers. Even if it is to be believed that it was a case of Diagnostic Laparoscopy then in that case charging of Rs-16,000/- amounts to over-charging the patient and in this case since the OP have an agreement with the GNCT of Delhi and the GNCT of Delhi have authorized through its circular which has been filed on record such payment shall be made on the production of the documents directly by the concerned department to which the member of the DGEHS belongs to. In the present case the Head of the institution (Deptt.) requested in view of the circular of GNCT of Delhi to the OP to sent the bills to the department and provide the complainant the cashless facilities of the treatment. It is an admission on the part of the OP that they have not provided the cashless facility to the complainant and the complainant was forced to deposit the entire amount of bill in cash. The OP have not only charged the complainant in access, what was legally due but have violated the terms of agreement, which they have with the Govt. of NCT of Delhi. Director DGHS may take note of this fact and FA 611/2013 Page 3 of 12 may institute appropriate proceedings against the OP for cheating the State.
It has been observed that these days corporate culture has overtaken the basic fundamentals of the service to the humanity by the doctors and the hospitals. They are indulging in unscrupulous procedures just for the purpose of making money at the cost of patient. In the present case the young girl of 18 years of age who was unmarried at the time of the alleged operation was subjected to surgical procedure leaving three permanent scars on her abdomen when there was no necessity of performing any kind of surgery as the cyst in question could have been treated conventionally and it was not necessary for saving the life as has been observed by the panel of doctors of Safdarjung Hospital. Doctors of the OP hospital may have been tempted to do the surgical intervention so as to be in the good book of the hospital administration for adding more finance to the kitty of the hospital. The Lal Path Lab- Report is a clear indication of the incompetency of the doctors who have performed the surgery. They could not be able to remove the cyst from the ovary of the complainant's daughter. This is another reason for us to hold that the OPs driven by greed of earning more money have undertaken a procedure which was not at all warranted in the case of the daughter of the complainant. The irritating cyst was not removed daughter of the complainant. The irritating cyst was not removed and the hospital have charged much more than what was prescribed. This is a clear case of, not only of medical negligence, but also of unfair medical practices.
We hold the OPs guilty of medical negligence as well as unfair trade practice The three permanent scars on the body of the daughter of the complainant will keep on reminding her throughout life what has been done by the doctors when she was young and unmarried. The Sant Parmanand Hospital has categorically mentioned that she was not suffering from TB and they have specifically noted on their prescription that anti TB treatment is not to be taken. Taking all the facts and circumstances into consideration, we allow this complaint and award a FA 611/2013 Page 4 of 12 compensation of Rs.5 Lacs to the complainant and his daughter named Naushin Kamil. This shall be recovered jointly and severally from the OPs. If it is not paid within 45 days the complainant shall be entitled for interest @9% over this amount till it is finally paid. We further award a cost of litigation of Rs 6000/- to the complainant."
8. Aggrieved by the order of the District Forum, the Appellant filed the present appeal. The Respondent filed reply to the appeal and the arguments in the case were finally heard.
9. The learned counsel for the Appellant submitted that (a) the order of the district forum is against the facts and material on record and is based on conjectures and surmises as it failed to appreciate the basic principle relating to medical negligence i.e. the BOLAM Rule; (b) that the District forum on no occasion came to conclusion that there was no proper treatment given by the Appellant or the operation was not necessary for the patient; (c) that the Appellant hospital has conducted the entire treatment as per the DGEHS rates and no overcharging was done; (d) that Appellant was made responsible for medical negligence without perusing any medical opinion against the contention and no record shows that alternate treatment was available for the same.
10. Per contra, the counsel for the Respondent contended (a) that the respondent was informed that the patient required immediate surgery operation otherwise it could be fatal for the patient; (b) that the counsel for Respondents also relied upon the findings of the District Forum wherein it has been held that "As per the record available it does not seem to be a life saving procedure"; (c) that the Appellant failed to provide Credit facility as per the DGEHS.
11. We have perused the material available on record as well as the impugned judgment. There are two issues involved in the present FA 611/2013 Page 5 of 12 appeal which needs adjudication, firstly, whether the appellants can be held liable for medical negligence in the given facts and circumstances and secondly, whether the appellants failed to provide the credit facility as per the agreement entered into with the Govt. of NCT of Delhi i.e. the Delhi Government Employees Health Scheme.
MEDICAL NEGLIGENCE
12. The counsel for the Appellants has contended that there was no medical negligence on the part of the appellant since the treatment/operation was conducted by expert medical staff with the practice which was prevalent at the time of the conducting of the operation. The laparoscopy done was to eliminate the abdominal pain caused due to the hemorrhagic cyst.
13. Before delving into the merits of the case, we deem it appropriate to the case of Jacob Matthew v. State of Maharashtrareported at (2005) 6 SCC 1, wherein the Hon'ble Apex Court has discussed in detail as to what constitutes medical negligence in tort and also under the criminal law. The relevant paragraphs have been reproduced below:
"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".
(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 FA 611/2013 Page 6 of 12 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) 1 WLR 582 : (1957) 2 All ER FA 611/2013 Page 7 of 12 118 (QBD)] , WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out in para 19, p. 19 herein.]] holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word "gross" has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly".
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence."
14. From the aforesaid dicta of the Hon'ble Apex Court, it can be deduced that in order to hold a medical professional liable for Medical Negligence, it needs to be established that the care and caution which FA 611/2013 Page 8 of 12 a normal prudent person could have undertaken, was not taken by him/her. Moreover, just because the Medical Professional chose one option/treatment/procedure and not the other, cannot be the sole ground for establishing the culpability of the Medical Professional if it is proved that the said medical practice was acceptable at the time when the operation was conducted.
15. Returning to the facts of the present case, the Appellants herein conducted the Diagnostic Laparoscopy on the respondent's daughter i.e. the patient. During the course of the proceedings before the District Forum, the opinion of the Medical Board was called for from the Safdarjung Hospital. The opinion has been reproduced as follows:
"The patient Nausi Kamil was suffering from pain abdomen for last 3-4 months. From investigation and record provided, the board is of the opinion that Diagnostic laparoscopy could be done in this case. However as per records available it does not seems to be life saving procedure in this case. It is a surgical practice to send aspirate/ tissue obtained during surgery for laboratory/ histopathological examination and the same was done in this case."
16. The opinion of the Medical Board reflects that the there was an alternate method/procedure available in the given facts and circumstances, since the words "Could Be" have been used. The District Forum has also placed reliance on the said words in order to establish the liability of the Appellants.
17. Applying the dicta of the Apex Court in Jacob Mathews (supra) as discussed above, merely because the Appellants chose either of the procedure available at the time of the surgery/treatment of the patient cannot be made the ground to hold the Appellants liable for Medical Negligence. The record is crystal clear that the respondent was made aware of the procedure to be followed and even the consent forms FA 611/2013 Page 9 of 12 were also got signed from the respondent as well as the patient. Hence, it can be said that the appellants took care and caution which a person of ordinary prudence would have taken.
18. Consequently, in terms of the aforesaid discussion, the findings of the District Forum to the extent where Appellants have been held to be liable for Medical Negligence is set aside.
LIABLITY WITH RESPECT TO CASHLESS FACILITY
19. The appellants have also challenged the impugned order on the ground that the District Forum erred in holding that the appellants failed to provide cashless facility in terms of the DGEHS, whereas in fact, it was the respondent who failed to provide/file the necessary documents with the appellant/hospital.
20. It is evident from record that the Respondent was a T.G.T. (Teacher) in Delhi Govt. School i.e. employee of Directorate of Education, Govt. Of NCT of Delhi and having a valid medical facility card No. 165003 under Delhi Govt. Employees Health Scheme (DGEHS) at the time when the Operation/treatment took place. The appellant hospital has also entered into an agreement with the Govt. of NCT of Delhi and is an empaneled hospital for the DGEHS.
21. Clause 9.6 of the DGEHS (Annexure B page 16) provides for cashless treatment facility which is reproduced as follows:-
"9.6-cashless treatment facility as per entitlement is recognized in panel private hospital/diagnostic Centre in Delhi will be available to serving employees in emergent conditions on production of valid DGEHS card. These hospitals will be sending the bills to the concerned department (where employee is serving) for making payments which have been made within 60 days as per terms and condition of the agreement entered with these hospitals/diagnostic centres. The itemized bills will have to be accompanied."FA 611/2013 Page 10 of 12
22. The perusal of the record reflects that a mere bald statement has been made by the appellants herein that the respondent failed to provide the relevant document. The copy of the DGEHS card has been filed along with the complaint, filed before the District Forum, the genuineness of which has not been challenged by the appellants. We are not able to understand that if the respondent was having the relevant document being a bonafide employee of the Govt. of NCT of Delhi, why would he not file it to claim the benefits of the DGEHS. It was for the appellants to prove that there was some omission on the part of the respondent and a bald statement cannot take place of the proof.
23. Consequently, we hold the appellant no. 1 liable for the Deficiency of Services given the fact that despite having entered into an express agreement with the Govt. of NCT of Delhi, it failed to honour the obligations as enunciated in the contract of providing cashless services to the respondent. The Appellant No. 2 and 3 being Doctors with the appellant No. 1 cannot be made liable for the deficiency on the administrative side of the appellant no.1.
24. In terms of the aforesaid discussion, we set aside the order of the District Forum to the extent of the Medical Negligence of the Appellants, however, the appellant no. 1 is held liable for Deficiency in providing its services to the respondent.
25. Consequently, we direct that the appellant no.1 alone shall pay an amount of Rs. 5,00,000/- as compensation for mental harassment and agony caused to the respondent for its deficient service along with the litigation cost to the tune of Rs. 10,000/-. The said amount is payable on or before the 30.06.2021, failing which the appellant no. 1 will be liable to pay an interest @ 9% p.a. on the said amount calculated from 30.06.2021 till the actual realization of the amount.
FA 611/2013 Page 11 of 1226. Applications pending, if any, stands disposed of in terms of the present judgment.
27. A copy of this judgment be provided to all parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
28. File be consigned to record room along with the copy of judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
05.04.2021 FA 611/2013 Page 12 of 12