National Consumer Disputes Redressal
Dr.B.Rai vs Shyam Sunder Gupta on 24 January, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3190 OF 2007 (From the order dated 2308.2007 in Appeal No.2734/01 of the State Commission, U.P.) Dr.B.Rai Petitioners(s) Versus Shyam Sunder Gupta Respondent(s) BEFORE : HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioners(s) : Mr.Hemant, Advocate Mr.Amrindra Kr.Chaubey, Advocate For the Respondent(s) : Mr.Sanjeev Nirwani, Advocate with Respondent in-person Pronounced on 24th January, 2012 ORDER
PER VINEETA RAI, MEMBER Dr.B.Rai (hereinafter referred to as the Petitioner) has filed the present revision being aggrieved by the order of the State Consumer Disputes Redressal Commission, U.P. (hereinafter referred to as the State Commission) in Appeal No.2734/SC/2001 in favour of Shyam Sunder Gupta (hereinafter referred to as the Respondent).
In his complaint before the District Forum, Respondent/Complainant had contended that he had gone to the Petitioners clinic on 27.07.1998 for treatment of Cholera and the Petitioner/doctor without any examination or diagnosis gave an intravenous injection of a very high dose whereupon Respondent became unconscious. Petitioner/doctor assured his family members that there was no cause for any worry and that the Respondents condition will improve.
However, as a result of this injection, a blood clot was formed in the Respondents leg. Petitioner/doctor thereafter charged him Rs.10,000/- on the pretext that he would treat the blood clot in the Respondents leg and also kept him in his clinic and when there was no improvement in the condition of the Respondent for 5 days, Petitioner/doctor referred him to one Dr.Sinha in Guptas Nursing Home, Jaunpur where the doctor after examination informed the Respondent that due to wrong administration of the injection through intravenous route instead of the intramuscular route, Respondent had developed this blood clot and he should immediately contact and seek the advice of Dr.B.S.Upadhyay who was a Government Physician. Dr.Upadhyay immediately got the Respondent admitted in a hospital and despite treatment there was no improvement because Gas Gangrene had developed as a result of the wrongly administered intravenous injection.
Respondent was, therefore, advised to go to a bigger hospital for his treatment and he was accordingly referred to Sanjay Gandhi Post-Graduate Institute, Lucknow and later to King Georges Medical College Hospital, Lucknow which again referred him to Noida Medical Centre, Noida where doctors after examination told him that due to the injection given through the intravenous route in his right leg the only treatment to deal with Gas Gangrene would be amputating it. Therefore, Respondents leg was amputated from the thigh. Alleging extreme medical negligence and wrong treatment by the Petitioner/doctor, Respondent sought compensation of Rs.4 lakhs, Rs.60,000/- for medical expenses and Rs.30,000/- for mental agony from the Petitioner/doctor. Petitioner/doctor, however, declined to pay him this compensation and, therefore, Respondent filed a complaint before the District Forum on grounds of medical negligence and deficiency in service and sought the above reliefs.
In his response to the complaint, Petitioner/doctor denied the above contentions and stated that he was a qualified Government doctor and was transferred from Machlishahar, Jaunpur to Varanasi in 1987 itself when the cause of complaint arose. Petitioner/doctor did not have any clinic in Machlishahar and the statement of the Respondent that he had visited his clinic for treatment of Cholera and an intravenous injection was given to him is false and concocted. Petitioner/doctor also denied that he had treated the Respondent for any ailment or subsequently for the blood clot or that he had referred him to Gupta Nursing Home.
Petitioner further denied that he had given any letter of reference for further treatment to Respondent and stated that he was also not aware of any facts as stated by the Respondent in his complaint.
The District Forum after hearing both parties and considering the evidence on record dismissed the complaint on the grounds that no credible evidence had been filed by the Respondent to prove that the intravenous injection was administered to him by the Petitioner/doctor or that the Petitioner had referred him to the clinic of Dr.Gupta following the development of a blood clot as a result of the intravenous injection. The referral slip of Dr.B.Rai referring him to another doctor filed in evidence by the Respondent, cannot be relied on because this document does not contain either the name of the patient or any date, nor does it state that any injection was administered to the patient. It only states that he was referring a case to Dr.Sinha at Gupta Nursing Home for deep vein thrombophlebitis. District Forum also took cognizance of a letter filed by the Petitioner/doctor in support of his case wherein the Chief Medical Officer, Varanasi had certified that the Petitioner/doctor had remained at headquarters in Varanasi from 14.07.1998 to 18.08.1998 and had not taken any leave during that period and, therefore, he could not have attended to the patient in Machlishahar, Jaunpur on 27.07.1998 as contended by Respondent.
District Forum further observed that the affidavits of 8 persons filed by the Respondent stating that he had been wrongly administered an intravenous injection by the Petitioner/doctor which resulted in the blood clot could not be relied upon because these were all identically worded affidavits and none of them indicated that they were personally present at the scene/time of the treatment. Further, none of the doctors who examined the Respondent subsequently had in the medical case-histories stated that the Petitioner/doctor had wrongly treated the Respondent. In view of these facts, the District Forum concluded that at the time when the Respondent was given treatment at Machlishahar, Jaunpur, Petitioner/doctor was posted at Varanasi Headquarters and therefore, he had not obviously treated the Respondent nor administered the IV injection resulting in the medical complaint.
Aggrieved by this order, Respondent filed an appeal before the State Commission which allowed the appeal by concluding that the Petitioner/doctor was guilty of medical negligence. The State Commission relied on the reference slip of the Petitioner/doctor wherein his address was given as Machlishahar, Jaunpur and it was stated that the patient was suffering from deep vein thrombophlebitis and was referred to Dr.Sinha for expert examination. The State Commission observed that while it is true that the patients name and date was not given in the reference slip but the said slip belonged to the Petitioner (Dr.B.Rai) and at no point of time has the Petitioner/doctor stated that these were not his writing and signatures. Thus, it would be reasonable to conclude that it was the Petitioner/doctor who treated the Respondent. The State Commission also placed reliance on the affidavits filed by different persons confirming the Respondents complaint against the Petitioner/doctor because according to the State Commission there was no evidence that they were doing so under the thumb of the Respondent. The State Commission has noted that the treatment of the Respondent for Gas Gangrene at various other health institutes i.e. Sanjay Gandhi Post-Graduate Institute, Lucknow, King Georges Medical College, Lucknow and Noida Medical Centre, Noida are not in dispute and it has been confirmed that the right leg had to be amputated because of Gas Gangrene. Taking all these facts in their entirety, there was no doubt that it was because of medical negligence of the Petitioner/doctor who had given an intravenous injection instead of intramuscular injection, that the Respondent developed Gas Gangrene and lost his leg. The State Commission, therefore, directed the Petitioner to pay the Respondent Rs.3,60,000/- as compensation within a period of 2 months failing which interest @ 4% from the date of complaint was to be applicable till realization.
Hence, the present revision petition.
Learned Counsel for both parties made oral submissions. Counsel for Petitioner essentially reiterated the facts as stated by him before the Fora below and stated that it was clear from the documentary evidence of the Chief Medical Officer, Varanasi who is an independent and unbiased witness that the Petitioner/doctor was not even posted in Jaunpur on the date of the incident and that he was in headquarters at Varanasi during this period. Jaunpur is at a distance of about 100 Kms. from Varanasi and the Petitioner/doctor who is Government doctor did not have a clinic there. Counsel for Petitioner emphasized that the reference slip though it does carry the signature of the Petitioner/doctor cannot be linked to the present case since it does not carry any date, name of the patient or mention that any intravenous injection was given. It is for the Respondent to explain how he obtained this paper and was misusing it for his own advantage. The State Commission erroneously believed the affidavits filed by various witnesses produced by the Respondent based on hearsay evidence since none of them was present at the time of the treatment and therefore, had no personal knowledge of the same. These affidavits were prepared by the Respondent to help his own case since they all had identical wording and content. Counsel for Respondent reiterated that it was the Petitioner/doctor who had given him the intravenous injection and the State Commission had rightly placed due credence on the reference slip which was admittedly in the name of the Petitioner/doctor carrying his address at Machlishahar, Jaunpur along with his Registration number and diagnosing the medical condition of the patient and referring him to Dr.Sinha in Gupta Nursing Home. Counsel for Respondent further stated that it would be too much of a co-incidence that this case could pertain to any other patient with identical medical ailments. The present revision petition has, therefore, no merit and deserves to be dismissed.
We have heard learned Counsel for both parties and have gone through the evidence on record.
The fact that the Respondent had developed Gas Gangrene as a result of an intravenous injection is not in dispute nor is it in dispute that he was given treatment at Gupta Nursing Home, Jaunpur and thereafter referred to Sanjay Gandhi Post-Graduate Institute, Lucknow and King George Medical College, Lucknow where after preliminary examination he was referred to Noida Medical Centre, Noida. It is also not in dispute that at Noida Medical Centre, Noida the doctors after due examination concluded that due to faulty intravenous injection, the right leg of the Respondent which had developed Gas Gangrene had to be amputated.
However, we find force in the contention of the Counsel for Petitioner/doctor that there is no documentary evidence on record to prove that this injection was administered by the Petitioner/doctor to the Respondent. The reference slip relied on by the Respondent and accepted by the State Commission admittedly does not have any details regarding the name of the patient and the date when he was examined. There is no evidence in the reference slip or any other proof that an intravenous injection was given to the Respondent by the Petitioner/doctor as a result of which deep vein thrombophlebitis developed. On the other hand, the certificate of the Chief Medical Officer, Varanasi stating that the Petitioner was posted at Varanasi at the time of the incident and that he had not left the Hospital at Varanasi cannot be rejected without any proof that it was a wrong certificate. We have also gone through the affidavits filed by 8 different persons in support of Respondents case and we agree with the finding of the District Forum that since they are identically worded and do not indicate at any place that anyone of these persons was personally present at the time when the Respondent was treated at the Petitioners clinic and allegedly given the intravenous injection for treatment of Cholera lacks credibility and thus has little evidentiary value.
To sum-up, for the reasons stated above, we are unable to conclude that it was the Petitioner/doctor who had wrongly administered an intravenous injection to the Respondent because of which a blood clot was formed in his leg leading to its amputation. We, therefore, set aside the order of the State Commission and restore the order of the District Forum.
Learned Counsel for Petitioner has stated that in compliance with the orders dated 24.10.2007 of this Commission, 50% of the awarded amount of Rs.3,60,000/- was deposited in the District Forum and as per the order of this Commission, Respondent was permitted to withdraw the same which he has done. Counsel for Petitioner has stated that purely on compassionate grounds, the Petitioner has no objection if this amount is not recovered from the Respondent. Ordered accordingly.
The revision petition stands disposed of on the above terms.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/