State Consumer Disputes Redressal Commission
Rano Devi vs Jiwan Jyoti Hospital on 7 February, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, CHANDIGARH
First Appeal No. 763 of 2015
Date of institution: 14.07.2015
Date of order reserved: 27.01.2017
Date of Decision: 07.02.2017
Rano Devi wife of Sh. Narinder Singh, resident of Village Amarpur Bela,
Tehsil Amarpur Bela, Tehsil Anandpur Sahib, District Rupnagar.
Appellant/Complainant
Versus
1. Jiwan Jyoti Hospital, through its Chairman, New Colony, Near
Tempu Union, Nurpur Bedi, Tehsil Anandpur Sahib, District Ropar.
2. Dr. Bhupesh, MD, Gyane of Jiwan Jyoti Hospital, New Colony, Near
Tempu Union, Nurpur Bedi, Tehsil Anandpur Sahib, District Ropar.
3. Dr. Naveen Kaplish of Jiwan Jyoti Hospital, New Colony, Near
Tempu Union, Nurpur Bedi, Tehsil Anandpur Sahib, District Ropar.
4. Dr. Sonia of Jiwan Jyoti Hospital, New Colony, Near Tempu Union,
Nurpur Bedi, Tehsil Anandpur Sahib, District Ropar.
5. Dr. H.S. Kohli of Jiwan Jyoti Hospital, New Colony, Near Tempu
Union, Nurpur Bedi, Tehsil Anandpur Sahib, District Ropar.
Respondents/Ops
First Appeal against the order dated 28.4.2015
passed by the District Consumer Disputes
Redressal Forum, Ropar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
First Appeal No. 763 of 2015 2
Present:-
For the appellant : Sh. Ashish Bakshi, Advocate
For the respondents : Sh. Harsh Chopra, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant (hereinafter referred as complainant) has filed the present appeal against the order dated 28.4.2015 passed by the District Consumer Disputes Redressal Forum, Ropar (hereinafter referred as the District Forum) in consumer complaint No.85 dated 17.7.2014 vide which the complaint filed by complainant was dismissed.
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against respondents/opposite parties (hereinafter referred as Ops) on the averments that after her conceivment, she was going to Op Nos. 1, 3 & 4 for treatment and various treatments were prescribed by them. She was admitted for delivery on 16.8.2012 and at that time, Ops assured that it is a case of normal delivery but after two hours Doctors Op Nos. 3 & 4 came to the husband of the complainant and told that case is serious and caesarean section is to be performed to save the life of the complainant and obtained his signatures on the blank consent letter. Op No. 5 gave Anaesthesia to the complainant and in the mean time her brother had also reached the hospital. After sometime Op Nos. 3 & 4 told that operation was conducted by Specialists but there was continuous bleeding from the operated organ, therefore, there is need of blood. The brother of the complainant requested Ops to provide First Appeal No. 763 of 2015 3 the blood to the patient and he is ready to pay for the same and then told to take the patient to an other hospital at Nawanshahr. Accordingly, they took the complainant to Raja Hospital, Nawanshahr. After examination of the complainant, they stated that the patient is serious and they advised that the complainant be taken to PGI, Chandigarh and accordingly, she was taken there where Doctors told that uterus of the complainant was removed by the Op Hospital and there is continuous bleeding from the operated organs and the life of the complainant is in danger. The complainant was treated in the PGI from 17.8.2012 to 12.12.2012 and a lot of amount was spent on her treatment. In fact Op Nos. 3 & 4 is just BAMS and not Gyane Specialist. Complaint was filed before SHO, Nurpurbedi but no action was taken. A complaint was also moved to Punjab Medical Council. Op Nos. 1 to 5 had removed the uterus against her wishes. It was pleaded that it is a case of medical negligence. The complaint was filed before the District Forum for compensation of Rs. 1 lac and Rs. 9 lacs as cost of the treatment.
3. Complaint was contested by Op Nos. 1, 3 & 4 only before the District Forum whereas Op Nos. 2 & 5 were ex-parte. Op Nos. 1, 3 & 4 in their written reply took the preliminary objections that the complaint was not maintainable in this Forum as complainant does not fall within the definition of the consumer; the complainant had not come to the Forum with clean hands and had suppressed the material facts. Op Nos. 3 & 4 are qualified Doctors and particularly respondent No. 4 is running a hospital in the name and style of Jeevan Jyoti Hospital in the area of Nurpurbedi, Tehsil Anandpur First Appeal No. 763 of 2015 4 Sahib, District Ropar and provided the maternity services alongwith caesarean and related services; the complainant approached their hospital on 16.8.2012 at about 10.00 a.m. as she was suffering with labour pain. Doctors tried their best to effect the normal delivery but suddenly complications arose as heart beat of the child was sinking and the child had passed the stool inside, therefore, normal delivery could have proved fatal for the life of the child. Therefore, caesarean was required without losing any time. These complications were explained to the complainant and her family including her husband. For the delivery Dr. Bhupesh (M.D. Gyane) from Nalagarh and Dr. Harjeet Singh Kohli (Anaesthetic, MBBS, DAC) from Anandpur Sahib were called for. The team of doctors took oral and written consent from the family of the patient and conducted the caesarean delivery and the patient delivered a healthy male child, however, after, the delivery, the patient suddenly suffered PPH (Postpartum Haemorrhage), which can never be attributed to any human mistake or negligence. Ops tried their level best to give the best treatment as per medical protocol but they failed to stop the bleeding with the medication and after taking the consent of the husband, who was explained its complication, 2nd surgery was performed as a last resort as it was necessary to save the life of the patient. During the treatment, the blood was transfused as per requirement, which was arranged by Ops of there own. After observing the condition of the patient and explaining the same to the husband of the patient, they had referred the patient to PGI, Chandigarh but family of the patient insisted to take him to Raja Nursing Home, Nawanshahr as they had First Appeal No. 763 of 2015 5 some better arrangements there and lateron the patient was got admitted in the PGI. The family of the patient demanded case history. It was not possible to get its photocopy during night, hence, Op No. 4 prepared its true copy in her hand but before she could complete the file, the notes were snatched by the family of the patient and incomplete copy was taken. The uterus was removed as PPH was not being controlled. After explaining the condition and emergency to the family members, the complainant moved application to SHO, Ropar and SMO, Ropar and Punjab Medical Council with the motive to harass him and Civil Surgeon, Ropar had constituted the inquiry and Dr. Mandeep Kaur, Gyanecologist, Dr. Shiv Kumar, Medical Officer and Dr. Sham Lal, Pharmacist and the team found the Doctors to be innocent. On merits also, the averments stated in the preliminary objections were reiterated. It was again reiterated that treatment was given as referred above according to the medical protocol and no medical negligence on their part. It was denied that complainant spent Rs. 10 lacs on her treatment. Complaint has been filed just to harass and extract money from Ops. It is without merit, therefore, it be dismissed.
4. Before the District Forum, the parties led their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence her affidavit Ex. CW-1, affidavit of Pawan Kumar Ex. CW-2, affidavit of Narinder Singh Ex. CW-3, prescription slips Exs. C-1 to C-4, Ultrasound report Exs. C-5 to 7, consent form Ex. C-8, bed head ticket Ex. C-9, Admission card/Summary of PGI First Appeal No. 763 of 2015 6 Ex. C-10, Laboratory charges bill Ex. C-11 to C-18, bill and prescription slip Exs. C-19 to C-150, summary of bill Ex. C-151, information under RTI Ex. C-152, complaint to Punjab Medical Council Ex. C-153. On the other hand, Op No. 3 had tendered into evidence his affidavit Ex. Op-1/2, certificate copies Ex. Op-1/2 to 7, consent form Ex. Op-1/8, letter of SSP Ex. Op-1/9, letter of SSP to PHRC Ex. Op-1/10, letter by Civil Surgeon Ex. Op-1/11, letter Ex. Op- 1/12, letter by Dr. Mandeep Kaur Ex. Op-1/13, patient bed head ticket Ex. Op-1/14, petition under Section 9 Ex. Op-1/15, reply to the petition Ex. Op-1/16, compromise Ex. Op-1/17, report of Mediation and conciliation Ex. Op-1/18, application by Gian Singh Ex. Op-1/ 19, application Ex. Op-1/20, proceedings by Panchayat Ex. Op-1/21, reply dt. 31.12.12 Ex. Op-1/22. Op Nos. 2, 4 & 5 had also tendered their sworn affidavit Exs. Op-2/1, Op-4/1 & Op-5/1.
6. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, complaint filed by the complainant was dismissed.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the learned counsel for the appellant Sh. Ashish Bakshi, Advocate and learned counsel for the respondents Sh. Harsh Chopra, Advocate.
9. It was argued by the counsel for the appellant/complainant that ops were not competent to give the treatment. They are just BAMS Doctors and were not competent to handle the Gynae case. However, counsel for the Ops stated that the First Appeal No. 763 of 2015 7 complainant had been visiting their hospital from conceivment and prescription slips have been placed on the record by the complainant herself as Exs. C-1 to C-7. Op No. 4 Dr. Sonia is Bachelor of Ayurvedic Medicine & Surgery, according to certificate Ex. Op-1/6 & Op-1/7. The District Forum has referred notification dated 30.10.1996 issued by Central Council of Indian Medicines, which reads as under:-
"Institutionally qualified practitioners of Indian Systems of Medicine (Ayurved, Siddha and Unani) are eligible to practice Indian Systems of Medicine and Modern Medicine including Surgery, Gynecology and Obstetrics bases on their training and teaching which are included in the syllabi of via courses of ISM prescribed by Central Council of Indian Medicine after approval of the Government of India."
According to which, the Doctor having degree in Bachelor of Ayurvedic Medicines and Surgery (Ayurvedacharya) are competent to prescribe the Allopathic medicines and competent to handle the delivery cases. Moreover, in this case as pleaded by the Ops, they had called for Dr. Bhupesh (M.D. Gyane) from Nalagarh and Dr. Harjeet Singh Kohli (Anaesthetic, MBBS, DAC) from Anandpur Sahib. The certificate of Dr. Bhupesh Gupta has been placed on the record as Ex. Op-1/4. He has taken a degree of Doctor of Medicines (M.D.) from Indira Gandhi Medical College, Shimla affiliated to Himachal Pradesh University and is registered with Himachal Pradesh Medical Council according to Certificate of Registration Ex. Op-1/5. So far as Dr. Harjeet Singh Kohli is concerned, his certificate is Ex. Op-1/2. First Appeal No. 763 of 2015 8 According to that, he has Diploma in Anaesthesiology and is registered with Medical Council, Punjab vide its Registration Certificate Ex. Op-1/3. In case the Doctor, who gave the Anaesthesia is sufficient qualification and is registered with Medical Council, Punjab and delivery was done by Dr. Bhupesh Gupta, who is Doctor of Medicines(M.D.), Obstetrics & Gynaecology then he is the competent Doctor to effect the delivery. The affidavit of Dr. Bhupesh Gupta has been placed on the record as Ex. Op-3/1. On the basis of this evidence, it cannot be said that the delivery case was not handled by competent Doctors, therefore, we do not see any substance in the objection raised by the counsel for the complainant that their delivery case was not handled by competent Doctors.
10. It was further argued that when the patient was admitted, it was said that it will be normal delivery, lateron surgery was conducted and the signatures of the patient/complainant were taken on blank papers and no record regarding blood transfusion was produced by Ops. Whereas it was argued by the counsel for the Op that no doubt that when the patient was admitted, they expected normal delivery but it was not possible, then caesarean section was advised to save the patient and the child and with the consent of the complainant/attendant was taken and caesarean section was done but the complainant suffered from PPH and to control it, uterus was removed and as a last resort but PPH was not controlled. As an emergency case, patient was referred to PGI, although attendant of the patient stated that they are taken the patient to Raja Hospital, Nawanshahr where they had some arrangement but seeing the First Appeal No. 763 of 2015 9 condition of the patient even that hospital did not admit the patient and from there, it was taken to PGI where the patient remained admitted and ultimately, the patient got normal after a prolonged treatment. Consent of the patient as well as her husband was taken before caesarean section was done. The same is Ex. C-8 and similar copy is Ex. Op-1/8 and condition No. 7 & 10 are important, which reads as under:-
"xxxx xxxx xxxx xxxx
7. It has also been explained to me that with every operation/delivery/procedure-bleeding, post partum haemorrhage, infection, inflammation etc. Standard complications which can create havoc to the individual. Also that it will performed operation/delivery stands a chance to fail without force warning. The cause of failure may not be related to the operation/delivery/medical procedure.
xxxx xxxx xxxx xxxx
10. I further consent to the administration of such drugs, infusins, plasma expanders or any other treatment or procedure deemed necessary. It has explained to me that this Hospital does not have a facility of the Blood Bank. I accept the risk involved in arranging blood from recognised Blood Banks and in transit to this hospital, in certain circumstances. It is understood and agreed that the attending physician or his associate assistants shall be responsible only for the performance of their own individual professional acts, and that the blood typing and selection of compatible blood are the First Appeal No. 763 of 2015 10 responsibilities of those who actually performed the necessary laboratory tests. It has been fully explained that blood transfusion is not always successful in producing a desirable result, and that there is a possibility of ill-effect, such as transmission of infectious Hepatitis. AIDS etc. or blood impairments."
It relates to every type of risk and emergency and that they do not have the blood bank. Therefore, in case consent of the patient/attendant i.e. her husband was taken then it cannot be said that caesarean was conducted without the consent of the complainant/her husband. It has been further explained by the Ops that the child in the womb passed a stool inside and the heart beat of the child was sinking, therefore, surgery was necessary. It is for the Doctor to check what is appropriate at the relevant time. There is no evidence on behalf of the complainant that caesarean section was not required. Surgery notes have been given in the patient file Ex. Op-1/14 wherein it has been observed as under:-
"Pt. Came ċ labour pains on augmentation. Pt. went into obstructed labour ċ severe fetal distress after taking due consent of husband and family members emg. LSCS perform & baby delivered in good cond. After ½an hrs surgery, the pt. went into PPH wasting no time after explaining husband and relatives about hysterectomy done to save relief of mother. In due course pt. was given adequate blood transfusion to maintain vital."First Appeal No. 763 of 2015 11
Therefore, in case there was obstructed labour and fetal distress then LSCS was required. Therefore, we do not agree with the plea taken by the complainant that LSCS was not required.
11. Another preposition is not stopping of bleeding. It has been pleaded by the Ops that after delivery the patient suddenly suffered PPH, which is a very rare disease and that cannot be attributed to any human mistake or negligence. The abovesaid surgery note is clear that the patient went into PPH and wasting no time after explaining husband and relatives hysterectomy was done to save the mother. Therefore, the preposition of PPH is referred in the surgery notes. Therefore, in case hysterectomy was done, it was done in the interest of the patient. When the complaint was filed by the complainant against Ops, the Civil Surgeon, Rupnagar had constituted a Committee of Board of Doctors consisting of Dr. Mandeep Kaur, Gyanecologist, Dr. Shiv Kumar, Medical Officer and Dr. Sham Lal, Pharmacist and the report submitted by Dr. Mandeep Kaur, one of the Member is Ex. Op-1/13, who in their report stated that the Doctors on the basis of their certificates were duly competent to handle the Gynae case and operation was conducted after getting the consent from the patient/her husband and when the condition of the patient was serious, the patient was referred to PGI. Report was also sought from the PGI and they in their letter dated 11.2.2015 had sought the following information:-
1. What were the PV findings (as indication for caesarean section was mentioned as obstructed labour with fetal distress) First Appeal No. 763 of 2015 12 at the time of admission and at the time of decision for caesarean section?
2. Partogram of the patient.
3. Why was labour augmented?
4. At the time of caesarean section was she given prophylactic oxytocics (oxytocin, methergin or prostaglandins)?
5. Anaesthesaid records at the time of surgery (caesarean section and hysterectomy) are required.
6. Post-operative records-monitoring records, vitals, urine output.
7. Baby weight at the time of birth is required.
8. It is mentioned in the record which were sent for the board that half an hour after surgery (caesarean section), vaginal bleeding started. Where was the patient when bleeding started, inside OT or she had been shifted out of OT?
9. What were the operative findings at the time of hysterectomy?
10. Was there any hemoperitonium?
11. What was the source of bleedings? Was the uterus atonic or bleedings was traumatic?"
and its reply was sent to the PGI and they sent their report vide letter No. EV(9)PGI-MS/MA-63/2015 dated 6.4.2015 and they in their opinion stated "based upon the reply given by the concerned doctors, the opinion of the medical board members is that the management given by the Doctors at that time appears to be appropriate."
However, to meet that evidence, no expert evidence has been First Appeal No. 763 of 2015 13 examined by the complainant to prove that Op Doctors were negligent in their act in any manner.
12. A specific point was raised by the counsel for the complainant in the grounds of appeal that in case the complainant was suffering from PPH, it was necessary that the patient should be given drug (Uterotonic) after the birth of the child. The patient file Ex. C-9 referred that injection. In its reply Dr. Bhupesh Gupta has stated that patient was given Uterotonics (Pitocin, Prostadin), which are corroborated from the patient bed head ticket Ex. C-9. Therefore, it cannot be said that Uterotonics were not given to the patient to stop the bleeding.
13. Counsel for the complainant referred to the judgment of the Hon'ble Supreme Court CLT 2008(1) 426 "Samira Kohli Vs. Prabha Manchanda (Dr.) & Anr." and the Hon'ble National Commission CLT 2009(3) 273 "A.K. Mittal (Dr.) Vs. Raj Kumar" and Hon'ble Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad CLT 2011(3) 152 "B. Shashikala (Dr.) Vs. Kattam Ramakishan". All these judgments have been given after considering the facts of those relevant cases. Each case is to be appreciated on the basis of facts of that case and then to decide whether any case of medical negligence is made out. The basic judgment in this regard is "Bolam v Friern Hospital Management Committee", (1957) 2 ALL ELR 118, which was accepted by the Hon'ble Supreme Court as laying down correct tests in cases of medical negligence, in which it was observed that negligence in law means failure to do some act which a reasonable man in the First Appeal No. 763 of 2015 14 circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do. It was further held that Doctor is not guilty of negligence if he acted in accordance with practice accepted as proper by responsible body of medical man skill in a particular art." Further it was held by the Hon'ble Supreme Court in the judgment of "Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others", 2010(3) SCC 480 and issued the guidelines that the following principles must be kept in mind while deciding whether the medical professional is guilty of medical negligence:-
"I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. First Appeal No. 763 of 2015 15 IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary First Appeal No. 763 of 2015 16 harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
In case, we appreciate the facts of the present case, we are of the opinion that LSCS was conducted upon the complainant when it was emergency and it was required and after obtaining required consent from the patient/husband. After the delivery, the patient suffered from PPH and as per the facts stated above, every possible effort was made by the Doctors and even 2nd surgery was conducted to stop the bleeding but it also could not stop the bleeding and seeing the condition of the patient to be serious, she was referred to PGI, which is a premier institute peferring the patient to premier institute is not a case of medical negligence, otherwise, Ops were qualified to treat the patient as per the certificates of their qualification placed on the record referred above. Therefore, no case of medical negligence is First Appeal No. 763 of 2015 17 made out against the Ops. District Forum has given the correct findings. We affirm the same.
14. Sequel to the above, we do not see any merit in the appeal and the same is dismissed with no order as to costs.
15. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
16. Order be communicated to the parties as per rules.
February 07, 2017. (Gurcharan Singh Saran) as Presiding Judicial Member