State Consumer Disputes Redressal Commission
Prince vs Dr R C Gupta on 4 January, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2013/1081 (Arisen out of Order Dated in Case No. of District State Commission) 1. Prince a ...........Appellant(s) Versus 1. Dr R C Gupta a ...........Respondent(s) BEFORE: HON'BLE MR. Vijai Varma PRESIDING MEMBER HON'BLE MR. Mahesh Chand MEMBER For the Appellant: For the Respondent: Dated : 04 Jan 2017 Final Order / Judgement RESERVED State Consumer Disputes Redressal Commission U.P., Lucknow. (1) Appeal No.761 of 2013 Dr. R.C. Gupta (Child Specialist), Clinic/Chamber- Skailark Complex, Chunniganj, Kanpur, Resident of 8/168, Arya Nagar, Kanpur Nagar. ...Appellant. Versus Prince( Minor) Son of Sri Santosh Kumar, Resident of Kasba Bidhuna, Behind Purana Mahila Hospital, Naveen Basti, East Bidhuna, District: Aurraiya. ....Respondent. (2) Appeal No.1081 of 2013 Prince( Minor) S/o Shri Santosh Kumar, R/o Kasba Bidhuna, Behind Old Women Hospital, Naveen Basti, District: Aurraiya Through its Natural Guardian Shri Santosh Kumar. ......Appellant. Versus Dr. R.C. Gupta (Child Specialist), Skylark Complex, Chunniganj, Kanpur. ....Respondent. Present:- 1- Hon'ble Sri Vijay Varma, Presiding Member. 2- Hon'ble Sri Mahesh Chand, Member. Sri Udai Vir Singh for Dr. R.C. Gupta. Sri Alok Sinha for the complainant. Date 13.1.2017 JUDGMENT
(Delivered by Sri Vijai Varma, Member) Appeal no.761 of 2013, Dr. R.C. Gupta vs. Prince and Appeal no.1081 of 2013, Prince vs. Dr. R.C. Gupta are cross appeals and therefore, are being taken up together for disposal. Appeal no.761 of 2013 is treated as the leading case in which original judgment be kept.
(2)Aggrieved by the judgment and order dated 8.3.2013, passed by the Ld. DCDRF, Kanpur Nagar in complaint case No.791 of 2009, the appellant Dr. R.C. Gupta has preferred the instant appeal no.761 of 2013 for setting aside the impugned order while the appeal no.1081 of 2013 has been preferred by the complainant Prince (Minor) for enhancement in the award of compensation.
The facts leading to these appeals, in brief, are that the respondent/complainant's son was suffering from fever in December, 2001, hence on the advise of the doctors at Bidhuna, the complainant took him to the OP Dr. R.C. Gupta at Kanpur where he was examined on 14.1.2002 and after writing the prescription for treatment asked him to come after 7 days. Even though, his son was suffering from serious ailments, the doctor did not diagnose the disease and also did not direct him for pathological tests. When he was against taken to the doctor on 22.1.2002, some medicines were prescribed for Malaria in addition to the medication already advised. Subsequently, as the patient's condition kept deteriorating, he was taken to Child Specialist at Etawah where the doctor stated that wrong treatment was given to the child and the child was suffering from Meningitis and he should be taken to hospital at Agra or Gwalior. The child was again taken to the OP doctor where he was examined on 29.1.2002 and OP asked the complainant to take the child to Madhuraj Nursing Home where it was found that the child was suffering from Brain T.B. and Meningitis and not Malaria and because of the wrong medication that the condition of (3) the child deteriorated and despite lot of treatment, he has been reduced to a living dead. It was because of the wrong treatment given by the OP doctor that the life of the child has been totally ruined. On the basis of such facts, a complaint was filed before the District Forum, Kanpur Nagar and the ld. District Forum below allowed the complaint and ordered for payment of Rs.2 lacs as compensation to the complainant within 30 days. Aggrieved by this order, appeal no.761 of 2013 has been preferred for setting aside the impugned order.
The main grounds of this appeal are that Dr. I.K. Sharma, Child Specialist at Etawah and Dr. B.N. Tripathi of Hallet Hospital, Kanpur were not arrayed as parties, even though they were necessary parties as per the assertion of the complainant. The appellant/OP as a medical practitioner is not liable simply because the things went wrong as no negligence was committed by the OP doctor. The Forum below has not appreciated and considered the evidence properly, therefore the impugned order is liable to be set aside. Besides the complaint filed before the District Forum, Etawah was time barred. Hence, on the aforesaid grounds it is prayed that the impugned order be set aside and the appeal allowed.
The complainant having been aggrieved with the impugned order filed appeal no.1081 of 2013 for enhancement of the compensation allowed by the Forum below.
The grounds of the appeal no.1081 of 2013 filed by the complainant are that the Forum below has not granted (4) the relief sought for in the complaint for payment of the amount as prayed in the complaint as the condition of the child is extremely bad by the wrong prescription provided by the OP Dr. R.C. Gupta and therefore, the compensation awarded by the Forum below is not adequate. Hence, this appeal for enhancement in the amount of compensation.
In this case, it is not disputed that the complainant's son Prince was not treated by the OP Dr. R.C. Gupta. The point that is in dispute is that according to the complainant his son was not treated properly and it is because of the negligence in treatment by the OP doctor that his son's condition became very serious. On the contrary, according to the OP, no negligence was committed by him in treating the complainant's son, therefore, there is no deficiency in service committed by him.
So now, we have to see as to whether the complainant's son Prince was not properly treated by the OP doctor and therefore, the OP has committed deficiency in service, if so its consequences.
It is vehemently argued by the counsel for the OP doctor that when the child of the complainant was brought before him then after examining him, a prescription for medication was written by him. The child was treated by him as per his competence and experience in the medical field and that when again the child was brought before him on 22.1.2002 then the complainant was advised to get the blood tests etc. of the child done and the complainant was advised to revert back to him in the evening with the tests reports but the complainant did not return and kept his son (5) treated by different doctors. When the child was brought before him on 29.1.2002 then his condition was very serious, hence, he was advised to get him admitted in Madhuraj Nursing Home where he was treated after getting tests done as the child was being treated for T.B. and Meningitis. Hence, the C.T. Scan of the Brain was also got done and as per the advise of the Child Specialist Dr. O.P. Bhatt, the medication was provided. It is also argued by the ld. counsel for the OP doctor that he is a Senior Child Specialist engaged in the treatment of children for the last 45 years and that his competence and medical skill were never challenged. It is also argued that the disease of Meningitis was not because of the consequences of any wrong medication given by the OP doctor. It also argued that there is no expert opinion of any medical negligence committed by the OP doctor and in a complaint lodged by the complainant in Medical Council of India, the complainant had put up his case and there the complaint was found to be baseless. As there is no negligence of the OP proved by the complainant, therefore, the impugned order deserves to be set aside and the appeal allowed.
It is argued by the ld. counsel for the complainant that when the child was taken to the OP doctor for treatment then a medical prescription was written without any medical tests being done and that when subsequently also the child was again taken to the OP then medication for Malaria was given without any tests and therefore, the patient's condition became very serious as he caught the (6) Brain T.B. and Meningitis, making the life of the child hell. It is also argued by the ld. counsel for the complainant that when the condition of the patient did not improve after treatment provided by the OP, he was taken to the doctors at Etawah where the complainant was told that the wrong treatment was given to the child whereby his condition became very serious.
We find that with regard to the negligence committed by the OP doctor, there are twin serious grounds, first, that he was not advised medical tests etc. and secondly, his treatment was wrongly done by him. But in this regard, it is to be noticed that normally when a patient is taken to a doctor, he is prescribed medicines after examining him and if he considers medical tests necessary at that very time then he also prescribes those tests but simply because certain tests were not got done or directed to be got done when the patient was first examined by the OP doctor does not mean that the doctor treated him negligently. It is also noticeable that there is no evidence to show or prove that because of the wrong medication prescribed by the OP that the complainant's son caught serious disease like Brain T.B. and Meningitis. In fact, the complainant had also made a complaint in the Medical Council of India regarding the wrong treatment prescribed by the OP doctor where the OP has submitted his reply and the complainant has not been able to put before the Forum about the report of the Medical Council of India whereby it could be ascertained that the OP doctor was found negligent in providing the treatment or (7) prescribing a wrong treatment. On the contrary, it is the assertion of the OP doctor that he was not found negligent by the Medical Council of India. The fact that the complainant did not file the report of the Medical Council of India in a complaint made by him, only gives credibility to the contention of the OP doctor that he was not found guilty by the Medical Council of India. Besides there is no expert opinion in the matter proving the negligence or wrong medication by the OP doctor. Just because by the medication provided by the doctor, the condition of the patient did not improve or with the passage of time it worsened does not prove the negligence of the OP doctor in providing medication. In fact, there is no evidence given by the doctor at Etawah by Dr. I.K. Sharma, Child Specialist who according to the complainant had stated that there was wrong treatment provided by earlier doctor and that the condition of the patient had become very serious and refused to treat the child, therefore, it can not be believed that Dr. Sharma had categorized the medication provided by the OP doctor as a wrong one.
The ld. counsel for the complainant has cited the case of Hon'ble NCDRC in II(2016) CPJ 348 (NC), Manika Roy (Dr.) Anr. vs. B.L. Chitlangia (Dr.) & Ors., in which the Hon'ble NCDRC has concluded that the Doctor should be aware of symptoms of appendicitis and dangers of the delay in treatment - Patient was admitted in late night, thus emergency USG scan should have been sought on urgent basis to rule out the causes of acute abdomen- It was negligence which became fatal - Deficiency in (8) service proved. On the basis of this case, it is argued by the ld. counsel for the complainant that the OP Dr. R.C. Gupta did not go for pathological tests whereby there was delay in diagnosing the disease and therefore, he has committed deficiency in service but the facts of the case cited above are totally different because the Hon'ble NCDRC has opined the necessity of being aware of symptoms of Appendicitis and dangers of delay in treatment which is not the case at hand. Besides in the case cited above, there was a proximate cause or substantial cause contributing to speticemic shock and death. Besides the affidavits of medical experts were filed in support of the medical negligence committed by the doctor concerned but in the instant case there is no evidence to prove that there was causal connection between the delay in diagnosis of the disease and the worsening of the condition of the patient. As discussed above, there is no expert opinion. There is no opinion of the Medical Council of India nor the affidavit/opinion of Dr. I.K. Sharma to prove the negligence of the OP doctor. It is also not proved in the instant case that the delay in diagnosing the disease was attributable to the OP doctor as the complainant had taken his child to different doctors before he was admitted in Madhuraj Nursing Home. Therefore, under the facts and circumstances of this case, the finding of the aforesaid cited case are not applicable.
The ld. counsel for the OP doctor has cited the case in (2009) 3 SCC 1, Martin F. D'Souza vs. Mohd. Ishfaq, wherein it is held by the Hon'ble Supreme Court that the (9) matter with regard to medical negligence case should first refer the matter to a competent doctor or committee of doctors specialized in the relevant field and when such a doctor or committee reports that there is a prima facie case of medical negligence, only then issue notice to the doctor or hospital concerned - Courts and Consumer Fora are not experts in medical science and therefore, they should not substitute their own views over that of specialists. It is also held in the case cited above that 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.
From the aforesaid ruling, it is clear that an opinion of the medical expert was necessary in the case which was not there, hence the medical negligence of the OP doctor could not be proved.
The fact is that the negligence of the OP doctor is not proved by the complainant whereby it could be ascertained that because of the wrong or negligent treatment by the OP doctor the child had to suffer a lot. It is a sorry state of affair that the child suffered and his condition became very serious so as to make his life hell presently and one may sympathize with such condition of the child but by itself i.e. condition of the child the OP doctor can not be found guilty unless his negligence was proved which in the instant case is not there. The conclusion drawn in this regard by the Forum below is erroneous appreciation of evidence and against the established norms and precedents (10) of medical cases. There has to be a strong evidence to prove the negligence of a doctor which we are afraid is not there in the instant case. Therefore, there is no deficiency in service on the part of the OP doctor in this case.
With regard to the issues raised by the OP doctor that the Forum at Etawah did not have the jurisdiction and that it was time barred, it is to be noted that the complaint was first lodged at District Forum, Aurraiya and a permission was granted by the District Forum, Aurraiya to file the case before the District Forum, Kanpur Nagar. Therefore, the case was filed at Kanpur Nagar. So it is clear that the complainant has already filed the case first in the year 2005 where the Forum had condoned the delay and that thereafter, the case was permitted to be filed at District Forum, Kanpur Nagar. Hence, there is no substance in the argument of the ld. counsel for the OP doctor that the case was time barred or the Forum below had no jurisdiction to decide the matter.
On the basis of the discussions made hereinabove, we are of the view that the appeal no.761 of 2013, filed by the OP doctor deserves to be allowed and the order passed by the Forum below set aside. Since we have concluded that the appeal no.761 of 2013 is liable to be allowed and the order of the Forum below set aside therefore, there is no question of enhancement in the compensation and hence, appeal no.1081 of 2013 is liable to dismissed.
ORDER The Appeal no.761 of 2013, Dr. R.C. Gupta vs. Prince is allowed and the impugned order dated 8.3.2013, (11) passed by the Ld. DCDRF, Kanpur Nagar in complaint case No.791 of 2009 is set aside. The Appeal no.1081 of 2013, Prince vs. Dr. R.C. Gupta is accordingly, dismissed.
No order as to costs. Certified copy of the judgment be provided to the parties in accordance with rules. Let a copy of this judgment be placed on the records of the Appeal no.1081of 2013.
(Vijai Varma) (Mahesh Chand) Presiding Member Member Jafri PA-II Court No.5 [HON'BLE MR. Vijai Varma] PRESIDING MEMBER [HON'BLE MR. Mahesh Chand] MEMBER