State Consumer Disputes Redressal Commission
M/S Pragma Hospital Through Its Manager vs Manjit Kaur W/O Late Darshan Singh ... on 28 January, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1154 of 2010
Date of institution: 1.7.2010
Date of Decision:28.1.2014
1. M/s Pragma Hospital through its Manager, Bhatti Road, Bathinda,
Punjab.
2. Dr. Surinder Kansal, C/o M/s Pragma Hospital, Bhatti Road,
Bathinda, Punjab.
3. United India Insurance Company Ltd. through its Divisional
Manager, 54, Janpath Connaught Place, New Delhi - 110 001
.....Appellants/OP No. 1,2 & 5
Versus
1. Manjit Kaur W/o Late Darshan Singh Kainth
2. Sh. Harjinder Singh S/o Late Darshan Singh Kainth,
3. Kulvinder Singh S/o Late Darshan Singh Kainth,
All residents of House No. 15527, Street No. 1, Hazura Kapura Colony,
Bathinda, Punjab.
.....Respondents/Complainants
4. Dr. Akhilesh, R.M.O., Pragma Hospital, Bhatti Road, Bathinda,
Punjab.
5. Sh. Sanjeev, Pragma Hospital, Bhatti Road, Bathinda, Punjab.
...OP Nos. 3 & 4
Argued By:-
For the appellant : Sh. Vaibhav Narang, Advocate
For respondents No.1-3 : Sh. I.S. Brar, Advocate
For respondents No.4&5 : Dispensed with.
First Appeal against the order dated 18.3.2010
passed by the District Consumer Disputes
Redressal Forum, Bathinda.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
ORDER
Gurcharan Singh Saran, Presiding Judicial Member The appellants/Ops No. 1, 2 & 5 (hereinafter called "Ops No. 1, 2 & 5") have filed the present appeal against the order dated FIRST APPEAL NO. 1154 OF 2010 2 18.3.2010 passed by the District Consumer Disputes Redressal Forum, Bathinda(hereinafter called "the District Forum") in consumer complaint No.160 dated 21.7.2009 vide which the complaint filed by the complainant was allowed with the direction to Op No.1, 2 & 5 to jointly and severally pay a sum of Rs. 1,50,000/- as compensation and Rs. 5,000/- as litigation expenses.
2. The complaint was filed by the complainant against the opposite parties on the allegations that on 14.11.2008 Mr. Darshan Singh husband of complainant No. 1 and father of complainants No. 2 & 3 fell sick and was admitted with OP No. 1. OP No. 2 Dr. Surinder Kansal after checking the patient told that he was suffering from Dengu. The complainants requested that if he is competent and requisite facilities to treat these type of cases then he should commence the treatment otherwise he could refer the same to other hospital whereas OP No. 2 requested that he is competent to treat this type of case and accordingly, he was got admitted there. However, on 15.11.2008, the condition of the patient deteriorated. Ops asked the complainant to arrange two units of blood and the complainant arranged two blood donors, namely, Parminder Singh and Rajesh Kumar, who donated two units of blood at Civil Hospital, Bathinda and sent two units of blood to OP No. 1. However, Ops No. 2 & 3 started transfusing blood to the patient on the instructions of OP No. 2, despite the fact that they were not competent to handle the job as OP No. 2 was not personally present there. However, shortly thereafter, the condition of the patient deteriorated further and he started shivering, writhing in pain and gasping for breath. When the FIRST APPEAL NO. 1154 OF 2010 3 complainant expressed their concern with Ops No. 3 & 4 they mis- behaved with them and then they contacted OP No. 2 but he did not attend the phone. He came to the hospital after 1½ hour and told that the blood being transfused to Darshan Singh had caused reaction, therefore, he is in serious condition. The complainants requested him to make efforts to control the reaction. At 12.00 in the night, he was sent for CT Scan at Omega Scan Centre, Bathinda and he was put on Ambu-bag, instead of Ventilator and after bringing back from Omega Scan Centre the patient was taken to ICU of OP No. 1 where he was declared dead. The death of the patient occurred due to negligence and carelessness on the part of Ops especially OP No. 2 because OP No. 2 did not attend him nearly 1½ hour when transfusion of blood had started and that period was critical to save the patient. After the death, the complainant asked the Ops No. 1 & 2 to give them the treatment file but it was denied. When they submitted the claim against the Ops to Deputy Commissioner, Bathinda, who forwarded the same for inquiry to Civil Surgeon, Bathinda, who constituted a Three Member Committee comprising of Dr. Ajit Pal Singh, Distt. Vaccination Officer, Dr. Inderpdeep Singh Sran, B.T.O. Civil Hospital, Bathinda and Dr. Harindr Pal Singh, M.D. Medicine, PHC Sangat and they observed the negligence on the part of Dr. Surinder Kansal, Dr. Akhilesh has caused the death of the patient. It was further alleged that OP No. 3 was not registered with Indian Medical Council, he was trained in Ayurveda System of Medicine whereas OP No. 4 was not legally competent and qualified for the job done by him. The report also noted that the complainants FIRST APPEAL NO. 1154 OF 2010 4 were legally authorised to get the photocopy of the treatment record of the patient, which OP No. 2 had refused, therefore, the Inquiry Committee apprehended that the treatment record might have been tampered with. Therefore, there is deficiency on the part of the complainant, hence, the complaint with the direction to the Ops to pay Rs. 10 lacs as compensation, Rs. 10,000/- spent on the treatment of the deceased and Rs. 5500/- as litigation expenses.
3. The complaint was contested by the Ops. Ops No. 1 & 2, who in their written statement have taken the preliminary objections that the complaint is not maintainable as there are many deficiencies in the Inquiry Report of the Doctors i.e. Dr. Inderdeep Singh Sran, BTO, Civil Hospital, Bathinda, who himself issued the blood should not be Member of the Inquiry Board why he should agree with the mistake at its own level during the cross matching of the blood. They strongly felt that Investigating Board was totally preoccupied to put the blame on the doctors as on very first day Dr. Ajitpal Singh told that they did not want to write against Doctors even without knowing about the details of the case. Moreover, authenticity of Dr. Ajitpal Singh as a fair inquiry officer is also questionable as after legal fight the kin of convicts has been able to secure the parole and Dr. Ajitpal Singh was recently demoted to the post of M.O. from SMO. Once the matter was referred to the Indian Medical Association then equally competent and experienced panel of Doctors from IMA, Bathinda, independently and critically analysed the whole and concluded that there was no medical negligence in the patient management and that the patient died because of the disease and related complications FIRST APPEAL NO. 1154 OF 2010 5 and not due to any lack of treatment. The complaint is bad for non- arrangement and mis-arrangement of parties. The proprietor of OP No. 1 Dr. Gursewak Singh Gill was insured with United India Ins. Co. Ltd.. The diagnosis of the disease and further its treatment and the complications subsequent to that are always a matter of fact and not of speculations and if the benefits of treatment have to go to the patient, its complications, untoward effects and unwarranted results can also go to the patient and these results cannot be garbed as negligence where the treating Doctor has tried its level best and used their highest degree of skill, care, knowledge, infrastructures, efforts and precautions and tried to avoid all complications, no experiment has been made by OP No. 2. The complainants were well informed about the quality infrastructure and hospital facilities available with the hospital, OP Nos. 1 & 2 has always maintained the highest standard of professional conduct and never allowed himself to be influenced by the motive of profit; the treatment given to the patient in the good faith after explaining the diagnosis, treatment, prognosis, benefits, losses and known complications etc., therefore, the dispute raised by the complainant is manifestly outside the purview of the Act; no warranty or guarantee was ever given by Ops No. 1 & 2 to the complainant about result of the treatment that Dr. G.S. Gill is Proprietor of OP No. 1 and that the patient Darshan Singh was admitted in the hospital. The clinical picture and investigations suggested viral illness (Dengu) and Urine was within normal limit and he was further advised for management. The option of referring to the higher hospital i.e. DMC or PGI, Chandigarh was also given. The FIRST APPEAL NO. 1154 OF 2010 6 platelet counts of the patient were checked and it decreased lateron upto 15000, therefore, it was necessary to administer the blood and attendants of the family were asked to arrange the blood. When the blood was being transfused the patient developed severe reaction and after few minutes and after that OP No. 3 stopped/severed PRP infusion. OP No. 2 advised OP No. 3 to give required injection and OP No. 3 to monitor patient's vitals. The patient's family was informed about the event. OP No. 2 had reached the hospital within 10 to 15 minutes and examined the patient and found that he was little anxious otherwise he was hemo-dynamically stable and obeyed the command. The patient's family voluntarily received unused blood and feed back form from OP No. 2, who advised the patient's family to report back to blood bank, Civil Hospital, Bathinda so that the un- used blood could be analysed to conform the exact cause of reaction. Thereafter, OP No. 2 remained with the patient throughout. He was also referred for CT Scan brain. On merits, it was again reiterated that the patient Darshan Singh Kainth was diagnosed to be a case of Dengu fever. Although the patient was advised to be taken to a higher institute but the patient family got the patient admitted with respondent No. 1 and after diagnosing it was found that the patient's family was to arrange two units of platelets rich plasma. It was further stated that OP Nos. 1 & 2 gave instructions to OP No. 3 and advised to start blood transfusion under their supervision. It was denied that Ops No. 3 & 4 are incompetent or un-qualified to handle the job because it has been approved by the Government of India that Ayurveda, Sidha and Unani had already certified and approved by FIRST APPEAL NO. 1154 OF 2010 7 Government of India. Ayurveda are directed/preferred to practice in the Indian System of Medicine and Modern Medicine Surgery and notification dated 18.6.2004 has already been issued. Even otherwise OP No. 3 is qualified BAMS doctor and has experience of transfusion of blood, therefore, on this account there was no deficiency. It has been stated that due to blood transfusion it reacted and caused the death of the deceased. There are number of deficiencies in the treatment by Dr. Ajit Pal Singh and ultimately, it was stated that there is no merit in the complaint and the same be dismissed.
4. Op No. 3 filed the written statement taking legal objections that the complainant does not have locus-standi or cause of action to file the complaint; the complainants are estopped to file the complaint by their act and conduct; complicated questions of facts and law are involved, therefore, the matter be relegated to the Civil Court and that the complaint is totally false, frivolous and vexatious and the same be dismissed. On merits, admission of Darshan Singh with OP No. 1 is a matter of record. He has further stated that he alongwith OP No. 4 started transfusing blood to the patient as per the instructions of OP No. 2 and never gave any treatment of his own. It was denied that they are not competent or un-qualified to handle this job. The Government of India has approved that Ayurveda, Sidha and Unani are eligible to practice in Indian Medical Systems and in Modern Medicine Surgery and in this regard a letter was issued by Director, Health and Family Welfare, Punjab, Chandigarh vide memo No. 21/19 2004-HB7/11124 dated 18.6.2004 and OP No. 3 is qualified BAMS doctor and had done number of blood transfusing FIRST APPEAL NO. 1154 OF 2010 8 cases and lateron OP No. 2 had also reached the hospital and himself took care of the patient, therefore, there is no negligence or deficiency in services on the part of the Ops. The findings recorded by the Civil Hospital, Bathinda holding the Ops negligent are incorrect because they himself had supplied the blood from their blood bank after matching and that Dr. Ajit Pal has recently been demoted from SMO to MO, therefore, his findings are not authenticate and ultimately, it was stated that there is no merit in the complaint and the same be dismissed.
5. OP No. 5 filed written statement stated that Dr. Gursewak Singh Gill of Pragma Hospital is insured with the Company vide Policy No. 040100/46/08/35/00000316 dated 24.4.2008 to 23.4.2009.
6. The parties were allowed by the learned District Forum to lead their evidence.
7. In support of his allegations, the complainant had tendered into evidence affidavit of Harjinder Singh Ex. C-1, affidavit of Gurmit Singh Ex. C-2, summary report Ex. C-3, inquiry report Ex. C-4, requisition form Ex. C-5, complaint dt. 10.12.08 Ex. C-6, complaint Ex. C-7, payment receipt Ex. C-8, bills Exs. C-9 to C-14, payment receipts Exs. C-15 to C-17. On the other hand, opposite party No. 3 had tendered into evidence affidavit of Akhilesh Ex. R-1, copy of memo dt. 18.6.2004 Ex. R-2. Opposite parties No. 1, 2 & 5 had tendered into evidence copy of ins. policy Ex. R-3, certificates Exs. R-4 to R-14, scientific literature Exs. R-15 to R-24, certificates Exs. R-25 to R-27, report of IMA, Bathinda Ex. R-28, affidavits Ex. R-29 to R-31.
FIRST APPEAL NO. 1154 OF 2010 9
8. After going through the allegations in the complaint, written statements filed by the OPs, evidence and documents brought on the record, the learned District Forum vide impugned order held that OP No. 1, 2 & 5 are negligent because they did not make it sure to match the blood before transfusing to the patient and were directed to pay Rs. 1.50 lacs as compensation and Rs. 5,000/- as litigation expenses.
9. Feeling aggrieved with the order passed by the learned District Forum, the appellants/opposite parties No. 1, 2 & 5 have filed the present appeal.
10. We have heard the learned counsel for the appellants Sh. Vaibhav Narang, Advocate and learned counsel for respondents No. 1 to 3 Sh. I.S. Brar, Advocate.
11. In the grounds of appeal, it has been contended that the deceased Darshan Singh, aged 54 years was admitted with appellant No. 1 and platelet counts of the patient progressively decreased to 50000 in the morning of 14.11.2008 then to 35000 in the morning of 15.11.2008 and then to 15000 in the afternoon of 15.11.2008, therefore, the patient was advised two units of platelets rich plasma and patient's family themselves arranged the blood from Civil Hospital, Bathinda and handed over to Dr. Akhilesh, RMO wheras the main treating Doctor OP No. 2 gave instructions to Dr. Akhilesh, who started transfusing the blood with the help of staff and after few minutes the patient started shivering, writhing in pain and gasping for breath and immediately appellant No. 2 was informed and he also advised Dr. Akhilesh to give required injection and to monitor FIRST APPEAL NO. 1154 OF 2010 10 patient's vitals and intimation was also given to the attendants of the patients and lateron he was shifted to ICU and CT Scan brain was done and CT Scan of Brain on endotracheal tube with ambu bag respiration which revealed normal study but after sometime patient started having hypotension and resuscitated further with I/V fluid & Inotropes. The patient had bradycardiac arrest at 1:10am on 16.11.2008 and 1.45 am he was declared dead. Although the Doctors of Civil Hospital, Bathinda gave the report against the appellant but another inquiry party i.e. IMA, Bathinda was instituted, who have examined the appellant but these facts have not been properly appreciated by the learned District Forum when the blood group was matched by the Civil Hospital, Bathinda. In case the blood has reacted then appellant cannot be held responsible for that, therefore, the findings so given by the learned District Forum are liable to be set-aside.
12. As stated by the counsel for the appellant as per the directions of Deputy Commissioner, Bathinda, a Board of the Doctors was constituted to make inquiry with regard to the negligence of Mr. Darshan Singh and the inquiry report of Civil Hospital is Ex. C-4 headed by Dr. Ajitpal Singh, Dr. Inderdeep Singh Sran and Dr. Harinderpal Singh, who in their inquiry was stated that appellant No. 2 did not supervise the transfusion of the blood and left at the mercy of the staff and in case the disease of the patient was not being properly analysed upto the knowledge of appellant No. 2 then they have been referred to some better institution, therefore, in this inquiry report, appellant Nos. 1 & 2 have been held responsible. FIRST APPEAL NO. 1154 OF 2010 11
13. The counsel for the appellant has referred to the report of the IMA, Bathinda. The same is on the record as Ex. R-28 observed that appellant No. 2 doctor continued the treatment of the patient on the line of Dengu fever although Dengu Serology was negative but in 90% cases fever remained un-diagnosed. Appellant No. 2 is M.D. Chest and T.B., M.B.B.S. having Diploma in Critical Care, therefore, was competent to give treatment to the patient. The blood was immediately stopped, therefore, it was wrongly observed by the Doctor of Civil Hospital that it was stopped after ½ hour. It was also held that Dr. Surinder Kansal had reached after 40 minutes to the hospital whereas he had reached within 15 minutes. The proper facilities were available with appellant No. 1, therefore, there was no need to refer to any higher institution. Dr. Akhilesh is B.A.M.S. and is competent to transfuse the blood and ultimately, to their conclusion it was held that patient died because of disease and related complications (Acute febrile illness, thrombocytopenia and anaphylaxis reaction of blood).
14. Even the abovesaid report also confirms the view that cause of death of Darshan Singh was also reaction of the blood, therefore, we are to check it what has been done by the appellant and what has not been done by them, which may constitute medical negligence? Certainly, the problem came to the patient while transfusing the blood. Two units of blood were taken from Blood Bank of Civil Hospital, Bathinda. It is presumed that blood has been matched by the Doctor while issuing the blood bottle from the Civil Hospital but there is no definite report in this regard. But it was the FIRST APPEAL NO. 1154 OF 2010 12 duty of the treating Doctor to check whether it has any reaction to the body of the patient or not before starting transfusing the blood but it was not checked. There are allegations of the complainant that even despite demand the medical record of the patient has not been placed on the record by the appellant/Ops No. 1 & 2. The perusal of the file of the District Forum reveals that the Ops/appellants No. 1 & 2 has not placed on the record the hospital record whether any such test was done and moreover it, it was done by OP No. 3 in the absence of appellant/OP No. 2, who was treating Doctor and managing the treatment of the patient. Although op No. 3 may be competent for transfusing but in case some critical problem while transfusing the blood has arisen whether he was competent or not; its answer has not been given by the Ops. Although it has been stated that appellant No. 2 had reached between 15 minutes but again the record of the complainant (appellant) was relevant to check it at what time the Doctor had reached to manage the patient when the inquiry report of the Civil Hospital reveal that he had reached in 40 minutes. It has also been stated by the Ops that when the problem had arisen, OP No. 2 had given directions to OP No. 3 to give some injection but it has not been explained in the written statement what type of injection was given and again the record of the patient to refer it what type of injection was given to the patient to check it whether it was rightly given or not. It has been further stated that the platelet counts had come done upto 15000 and after transfusing the blood it had raised to 36000 but at the same time the counsel for the appellant has stated that as and when they came to know that the blood had FIRST APPEAL NO. 1154 OF 2010 13 reacted they had stopped immediately transfusing the blood and again to corroborate this fact the Ops have withheld the record, therefore, the Ops/appellants have not brought on the record the matching of the blood group with the blood bank and after that in the hospital before transfusing the same to the patient to be doubly sure that the same group of the blood was being transfused to the patient. The record has been withheld by the appellants to check whether after reaction of the blood, what was the management of the Doctor to check its reaction and moreover, the main doctor appellant No. 2, who was managing the patient was not present and blood was transfused in his absence. Although OP No. 3 may be competent to transfuse the blood but it has not been explained whether he was competent to manage the patient in case of reaction of the blood. Again record has been withheld by the Ops/appellants that what type of treatment was given after they came to know the reaction of the blood, therefore, the report of the Medical Council IMA, Bathinda exonerating the appellant cannot be admitted when it does not reply to these queries on the basis of record. The expert evidence is admissible only when otherwise the case of the parties is not clear. Here the appellants were deficient at number of points stated above and patient's life has taken away due to negligence of the appellants, therefore, we are of the opinion that the findings so recorded by the learned District Forum holding the appellants to be negligent and deficient in their services is writ large, therefore, we affirm the findings so recorded by the learned District Forum.
FIRST APPEAL NO. 1154 OF 2010 14
15. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
16. The arguments in this appeal were heard on 16.1.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
17. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to respondents No. 1 to 3 in equal share by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
18. Remaining amount shall be paid by the appellants to respondents No. 1 to 3 within 30 days from the receipt of the copy of the order.
19. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
January 28, 2014. (Vinod Kumar Gupta)
as Member