State Consumer Disputes Redressal Commission
1. National Insurance Co. Ltd. & Ors Sco ... vs 1. Sohan Singh Son Of Late Shri Laxman ... on 10 October, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No. 01 of 2012 Date of Institution: 03.01.2012 Date of Decision: 10.10.2012 1. National Insurance Co. Ltd. & ors SCO No.337-340, Sector 35-B, Chandigarh, through Smt. Rajvinder Kaur its Assistant Manager and ors. 2. Diamond Hospital (A unit of M/s Om Medical (P) Ltd. Palwal and ors. Appellants (Ops No.5&1) Versus 1. Sohan Singh son of late Shri Laxman Singh, resident of 5/8, Jawahar Nagar, Palwal, Tehsil and District Faridabad and others. Respondent (Complainant) 2. Dr. P.S. Yadav, Surgeon, Diamond Hospital, Palwal. 3. Dr. R.L. Goyal, Surgeon, Diamond Hospital, Palwal. 4. Dr. S.S. Bansal, Director of metro Heart Institute, Sector 16-A, Faridabad. Respondents (Ops) No.2 to 4) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri G.D. Gupta, Advocate for appellants. Respondents No.1 to 3 exparte. None for respondent No.4. O R D E R
Justice R.S. Madan, President:
Case called several times since morning but none put in appearance on behalf of the respondents. Respondents No.1 to 3 are already exparte vide order dated 08.08.2012. None has appeared on behalf of the respondent No.4 despite repeated calls since morning despite the fact that the case is fixed for arguments. It is already 1.00 P.M. As per the provision of the Consumer Protection Act, 1986, the complaints as well as the appeals are to be decided within the prescribed period. Thus, the non-cooperative attitude of the respondents is against the spirit of the Consumer Protection Act. Under these circumstances we do not think it appropriate to adjourn this appeal and therefore we proceed to decide the same after hearing the learned counsel for the appellants and going through the case file.
Challenge in this appeal is to the order dated 30.08.2011 passed by District Consumer Forum, Palwal whereby complaint filed by complainant (respondent No.1 herein) alleging medical negligence and deficiency in service against the opposite parties, was accepted on the following terms:-
12. In the light of the above discussion and observation, OP No.1 to 3 has been found guilty of negligence, carelessness and for rendering deficient medical services in the treatment of the minor son of the complainant. Since OP No-3 was given up by the complainant so, no liability can be foisted upon him & complaint against OP No.-4 is rejected. However, OP No.-1 & 2 can not be exonerated from their liability to compensate the complainant. OP No.-5 is the insurer of the OP No.-1, hence both are jointly & severally liable. As such OP No.1 & 5 are directed to compensate the complainant with a sum of Rs.two lacs & OP No.-2 is directed to pay Rs.one lac on account of compensation to the complainant with in 30 days from the receipt of copy of this order failing which the amount shall carry interest @ 8% p.a. from the date of filing of this complaint.
The case of the complainant before the District Consumer Forum was that his son Parmender Singh had suffered injuries in an accident on 21.8.2003 near Diamond Hospital, Palwal. He was immediately admitted in Diamond Hospital, Palwal and received injury on his right leg. The doctor on duty told the complainant that there was fracture in Rt. Femur and advised for operation. Firstly, the doctor on duty told that the operation was to be started immediately but after 2-3 hours, the complainant was informed that the concerned surgeon i.e. the opposite party No.2 would come on the next day i.e. on 1.9.2003 who would conduct the operation. On the next day, the operation was conducted by the opposite parties No.2 and 3 and a rod was inserted in the right leg of patient. However, after some time the condition of patient deteriorated upon which he was referred to Metro Hospital. According to the complainant, the opposite party No.1 charged about rupees one lac for operation and medicines. Opposite Party No.4 then started treatment of patient for the heart whereas as per the complainant, there was no problem of heart to his son prior to the accident. The patient remained on ventilator for a long period in the hospital of the opposite party No.4 and remained admitted upto 8.10.2003. But since the condition of the patient was not improved, the opposite party No.4 referred the patient to A.I.I.M.S. New Delhi. According to the complainant, the opposite party No.4 charged Rs.3,98,584/- from the complainant besides the complainant spent about Rs.1.50,000/- on purchasing the medicines. Complainant further alleged that the doctors at A.I.I.M.S. New Delhi told that the treatment given by the opposite parties to the patient was not proper and due to that reason the condition of patient became out of control and died on 09.10.2003. Thus, alleging it a case of medical negligence and deficiency in service on the part of the opposite parties, the complainant invoked the jurisdiction of the District Forum by filing complaint whereby he sought direction to the opposite parties to pay compensation of rupees seven lacs.
Upon notice, the opposite parties No.1 to 4 appeared and took the plea that the doctor on duty of the opposite party No.1, had started the emergency treatment required by the patient as there was fracture of right femur of patient for which immediate treatment was required. The opposite party No.1 had engaged Dr. P.S. Yadav i.e. the opposite party No.2 a renowned Orthopedics Surgeon and another Orthopaedic Surgeon Dr. R.L. Goyal (opposite party No.3) for surgery. It was denied that the operation was conducted on 01.09.2003. Thus, proper treatment was given to the patient. The complainant had not paid any bill to the opposite party No.1 and the hospital bill was not settled.
Opposite party No.2 did not file his written statement and his defence was struck off vide order dated 4.5.2010. Opposite Party No.3 was given up on the statement of the complainant.
Opposite Party No.4 in his reply stated that the patient was admitted in their hospital on 01.09.2003 following road traffic accident leading to fracture right femur for which he was operated right side. The patient was admitted in the hospital with shortness of breath and chest discomfort. He was incubated outside and on reaching hospital, he was in gross pulmonary oedema with SO2 50% and Bradyeardia. His ECHO revealed poor I.V. systolic dysfunction with LVF 20% (? Myocarditis. During course of treatment he developed surgical emphysema for which he required B/L intercastal drainage tube. His x-ray chest revealed B/L consolidation. He also developed paralytic ileus which recovered after treatment. His tip culture revealed proteus for which treatment was given. The patient received antibiotics according to sensitivity report. The patient was kept on ventilator of lonotropic support. After the accident, the son of the complainant had become paralysis patient, his condition deteriorated and the opposite party No.4 had provided best treatment to the son of the complainant. Opposite Party No.5 denied all the allegations levelled by the complainant. Thus, it was prayed that the complaint merited dismissal.
Both the parties adduced evidence in support of their respective claims. On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted complaint and issued direction to the opposite parties as noticed in the opening para of this order.
Aggrieved against the order of the District Consumer Forum, the opposite parties 1 and 5 have come up in appeal.
Heard.
There is delay of 53 days in filing of the instant appeal the condonation of which has been sought by moving an application. The application is supported with an affidavit of Shri Rajwinder Kaur, Assistant Manager, National Insurance Co. Ltd. Regional Office-II, SCO No.337-338, Sectotr 35-B, Chandigarh. While dealing with the application for condonation of delay, it is not disputed that the delay cannot be condoned on the ground of equity and generosity, but at the same time it is to be taken into consideration that in case of any legal infirmity is committed by the District Consumer Forum while passing the impugned order which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law. Reference is made to the observation made by the Honble Supreme wherein it has been held that when the substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words Sufficient Cause have to be interpreted to advance the cause of justice. The Honble Apex Court in case cited as State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 has held as under:-
11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression sufficient cause should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
In the instant case the District Consumer Forum has passed the impugned order without appreciating the facts of the case and therefore, we think it a fit case to condone the delay. Hence, the delay of 53 days in filing of the present appeal is condoned.
It is contended by the learned counsel for the appellants that after the operation of the patient, he was shifted to ICU for further better management but after some time, the doctor on duty found breathlessness in the patient and the patient was immediately incubated and medically managed. The patient was put on ventilator for maintaining the saturation and managing the patient. The patient was brought in the hospital with multiple injuries suffered by him in the accident and his femur bone and left leg were fractured and patient was professionally and medically treated by the well qualified orthopedic. He was given better treatment during the period the patient remained with the opposite parties. But unfortunately, the patient developed heart problem, and the doctors had given best possible treatment to the patient and subsequently prom ply referred to higher institute for better management.
In our view the contention raised on behalf of the appellants is supported by the facts and circumstances of the case. From the record it is established that the doctor who had conducted the operation, had exercised reasonable degree of skill and knowledge and they were expert to protect the life of the patient and to stabilize his condition in emergency situation. Thus, in our view it is not a fit case to attribute any medical negligence and deficiency in service on the part of the opposite parties. It is well settled law that the basic principles have to be proved for attributing medical negligence against the treating doctor. The Honble Supreme Court in case cited as Kusum Sharma and others versus Batra Hospital & Medical Research Centre and others, 2010 ACJ 1444, has observed as under:-
(1) 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.
(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 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.
Honble Supreme Court in case cited as MARTIN F. DSOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC) has observed that:-
49. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.
In para No.47 of MARTIN F. DSOUZAs case (Supra) it has been held 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 straightway liable for medical negligence by applying the doctrine of res ipsa loquitur.
No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
In case cited as Mohd. Abrar versus Dr. Ashok Desai and others, 2011 CTJ 613 (CP) (NCDRC) Honble National Commission has observed as under:-
The medical practitioners cannot be treated as magicians or demi-Gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practitioner and there was clear material available to foresee the injury.
The ratio of the above mentioned cases fully applies to the facts of the present case. Complainant has not produced any expert evidence to prove any medical negligence against the treating doctor. Mere affidavit submitted by the complainant cannot be taken a cogent and convincing evidence against the treating doctors unless and untill it is supported with the opinion of some expert doctor. District Consumer Forum has failed to take into account the above stated facts of the case. Hence, the impugned order cannot be allowed to sustain.
Accordingly, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal and Rs.2,95,285/- deposited on 06.02.2012 as per the order of State Commission, be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 10.10.2012 President B.M. Bedi Judicial Member