State Consumer Disputes Redressal Commission
Aaram Hospital vs Jigishaben P Shah on 30 May, 2023
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE OF GUJARAT
COURT NO.2
Details DD MM YY
Date of Judgment 30 05 2023
Date of filing 29 10 2013
Duration 01 7 9
Appeal No. 2006 of 2013
APPELLANT: (1) Aaram Hospital,
Mota Mandir Road,
Kosamba, Mangrol Dist,
Surat.
(2) Dr. Jitendra L. Rana
Res: As mentioned above
VS
RESPONDENT: Jignishaben Pradeepbhai Shah
Station Road, Opp. City Point,
Kosamba, Taluka: Mangrol
Dist: Surat.
With
Details DD MM YYYY
Date of Judgment 30 05 2023
Date of Filing 05 03 2014
Duration 25 2 9
Appeal No. 941 of 2014
APPELLANT: Jignishaben Pradeepbhai Shah
Station Road, Opp. City Point,
Kosamba, Taluka: Mangrol
Dist: Surat.
VS
RESPONDENT: (1) Aaram Hospital,
Mota Mandir Road,
Kosamba, Mangrol Dist,
Rnm a20062013 Page 1 of 8
Surat.
(2) Dr. Jitendra L. Rana
Res: As mentioned above
CORUM: Mr. R.N. Mehta, Presiding Member
Appearance: Mr. N S Dave Ld. Advocate for Applicant Mr. M.K. Dudhiya Ld. Advocate for the Respondent (ORDER by Hon'ble Mr. R.N. Mehta, Member) [1]. These two appeals have been arisen out of order and judgment dated 18th October 2013 by the District Commission, Surat (Additional) in Complaint No. 259/2011 (old case no. 183/2004). The District Commission has directed opponents to pay Rs.63,000/- together with the interest @ 9% p.a., compensation of Rs.2,000/- and also cost of Rs.1,000/-. Being aggrieved by the said order, original opponents have preferred Appeal No. 2006 of 2013 and prayed for setting aside the order, whereas the complainants have preferred Appeal No. 941 of 2014 for enhancement of the compensation.
[2]. For the convenience, the parties are hereby addressed to its original nomenclature.
[3]. (3.01) Heard Mr. N S Dave, advocate for the original opponents, who submits that the District Commission, Surat, while passing impugned order, failed to consider evidence on record and therefore misdirected itself to conclude that there was negligence on the part of the opponents which is not only illegal, erroneous, perverse, contrary to facts but also evidence on record and therefore the order deserves to be set aside. The opponents also further submitted that the District Commission, Surat (Additional) has drawn illogical inferences from the documentary evidence available on record that lead to miscarriage of justice. The opponents also further submit that the District Forum grossly erred when sonography report carried out on 19/8/2003 is considered as sonography report dated 26/8/2003. It is also submitted that despite the treatment papers were on record, the District Forum observed that opponent has not produced it on record. The District Commission miserably failed to appreciate that the opponents have Rnm a20062013 Page 2 of 8 appellant applied for the witness summonses to Dr. Purvi Chauhan and also to Sandhya Mondal, however they did not appear before the Commission to give evidence and even then the District Commission, Surat drawn false inferences against the opponents. The appellants have therefore prayed for setting aside the order of medical negligence and to quash the order of compensation payable to complainant.
(3.02). Mr. M K Dudhiya, advocate for the original complainants submits that while passing the impugned order, the District Forum has allowed reimbursement of expenses only and not awarded any amount towards compensation for sufferings and permanent damage to patient's body. It is further submitted that District Forum has not consider it seriously that patient had to suffer lot because of perforation to her uterus, bladder and led to continuous bleeding. He also submits that District Forum has given sufficient reasons for holding negligence of the opponents and the same are based on sound principles of law and it cannot be interfered with lightly. He also submits that there is no standard proof or evidence placed on record by the opponent that complainant patient had taken treatment from unqualified lady for so called abortion as it alleged by the opponents. In absence of any such proof, it cannot be believed that patient had visited opponents with incomplete abortion as it claimed by the opponent. Although the complainant had specifically prayed for compensation separately in the complaint, the District Forum has not taken into consideration and also not gave any cogent reasons for not allowing the same. It is also submitted that when it is established on record that patient-complainant had to undergo multiple hospitalizations and surgery, the sum of Rs. 50000/- could have been awarded for sufferings and mental agony. Therefore complainants have legitimate right to claim compensation which can be done through enhancement of compensation by Rs. 50000/- and also to award cost.
[4]. (4.01) I have perused record, read the order and considered the submissions canvassed by either parties. It is not in dispute that complainant had approached the opponents firstly on 19/8/2003. It is also not in dispute a sonography was done on that day and patient was advised for hospitalized to remove placenta. It is admitted position that patient was remained hospitalized till 23/8/2003. It is also further admitted the opponent doctor had examined patient again on 25/8/2003. It is rather case of the opponent Rnm a20062013 Page 3 of 8 doctor that on 25/8/2003, he had advised complainant to consult Gynec surgeon. It is also not disputed by the opponent doctor that patient was hospitalized at Dr. Gautam Patel's hospital and Sonography report of Dr. Rajni Patel was showing "Uterus is enlarged and gravid, product of conception seen in uterine cavity, no uterine or adnexial mass lesion seen." It is also admitted by the opponent doctor that Dr. Chellappan attended call from Dr. Gautam Patel for Septic peritonitis. From these circumstances, whether services of opponent doctor are negligent or not that is to be ascertained.
(4.02) The District Forum has observed in impugned order that the opponents have not produced treatment papers. On the other hand, the opponent doctor claims that treatment papers are already on record. Paper book produced by the opponent before this Commission shows that the complainant has produced entire file given by the opponent doctor. Scrutiny of these papers clearly suggests that it contains details as to medicines / injections etc. are administered and prescriptions given by the opponent doctor. In these documents, In none of these papers, I could find a paper which suggests the condition of the patient noted by opponent doctor on arrival. Needless to mention that it is common practice that is followed by almost all doctors, to make a note when a patient visits the doctor, about complaints at present, details of past history, his clinical findings / observations and his advice too. In the entire file there is no such record. From the opponent side, undated type written pages are produced. Even if it is taken as a doctor's note, contents of the said pages make it further clear that it must have been prepared subsequently because it is not the document which is written in usual course of practice. No doctor will write such things in case papers especially on the day of consultation.
In Sukesh Jain vs Dr. Mukesh Jain & others, (2009-4-CPJ-1(NC)) the Hon'ble NCDRC held as under:
"26. However, opposite party's notings themselves are not very clear as to which hand he operated on. Wrong documentation, no documentation and non-maintenance of documents of medical record itself is deficiency in service as far as doctors and hospitals are concerned. Medical Council of India has prescribed norms and internationally also medical records are expected to be well recorded and are to be safeguarded."
Therefore, if these typed written pages are discarded, there is no other document on record which explains the condition of patient on the day of Rnm a20062013 Page 4 of 8 admission. The first consultation assumes importance, because it is the case of the opponent that patient came to him with previous history of incomplete abortion attempted by unqualified lady. If it is proved on record that patient came with incomplete abortion, obviously the liability of the opponent doctor shall have to be reconsidered. It is also case of opponent doctor that patient had come with septic when consulted for the first time. The said facts are required to be proved by the opponent doctor. Mere production of so called case paper is not sufficient, the contents thereof is required to be proved by the opponent. In absence of any such document, the facts stated by the opponent cannot be relied upon even if it is stated on oath. Therefore finding of the District Forum cannot be faulted in this regard.
(4.03). It is the case of complainant that she had continued bleeding after the procedure carried out by opponent doctor. On the other hand, it is case of the opponent doctor that it was case of one month old uterine perforation. It is not disputed by either party that sonography was done on the first day of consultation. The complainant has placed on record copy of film of sonography and the opponent is also relying upon the same. The complainant is not competent to explain contents of film whereas the opponent doctor is more competent to explain the same. The opponent could have examined Dr. Tejas Patel (who visits opponent hospital as claimed by opponent doctor) to interpret the said film. In reply to complaint, the opponent states that report of sonography was given to complainant whereas in reply to interrogatory question (Q. 14) from the complainant, the doctor replied that report of cut section was not given because patient was hospitalized. The opponent could have taken out another copy of this sonography report, if first copy was handed over to complainant and if she had not produced it on record. It is admitted in the reply that patient had persistent bleeding during hospitalization in that case, it is obligatory on the part of the opponent doctor to explain reasons thereof. It is case of the opponent doctor that patient did not consented for procedure whereas the prescription of the opponent doctor suggests that medicines have been prescribed which is generally used for assisting uterus to contract! If no procedure is done at his end, why this was necessary is unanswered or unexplained. Thus, looking from another angle, the facts stated by the complainant seems to be more credible.
Rnm a20062013 Page 5 of 8(4.04) To prove the case of previous attempt of incomplete abortion, the opponent has produced on record copy of case paper of Dhanvantri Nursing Home. There is no name of doctor is mentioned in the case paper. None has signed it. Even if presuming for the sake of argument that the said case paper written by Dr. Purvi Chauhan, even then it is for the opponent to prove it on record. The opponent had applied for summons which was issued but witness refused to give evidence itself suggests that facts may not be true and it might have been obtained by false representation. The District Forum was right when it held that the facts cannot be believed because there is no affidavit from Dr. Purvi Chauhan. It is most surprising that the opponent has produced a copy of affidavit of Sandhyaben Mondal on the record of this Commission, however it is not found in the record of District Forum and therefore it might not have been considered. This affidavit is prepared on a stamp paper purchased on 27/08/2013 i.e. to say almost after ten years! Deponent was nurse at Kosmba Marium Hospital and she deposed that complainant had been to hospital on 19/8/2003 and she had complaint of incomplete abortion and had consulted Dr. Purvi Chauhan who gave reference and therefore I referred her to opponent doctor. There is one more reason to disbelieve this fact. In reply to interrogatory, the opponent doctor himself has said that he had occasion to work for 15 years at Marium hospital! In such a case, it is most likely that nurse might have agreed to give affidavit under influence of her superior officer in charge. The District Forum has rightly observed in its judgment that details of Dr. Chauhan and Sandhya Mondal produced at belated stage. I, therefore, do not believe that what Sandhya Mondal states is correct.
(4.05) The opposite party has produced on record a reference letter dated 23/8/2003 addressed to Civil Hospital wherein it has been mentioned that he is referring case of uterine perforation for further management but no where it is mentioned that it is also a case of "incomplete abortion". The date is important because the complainant states the opponent gave discharge whereas the opponent says they went away voluntarily. If the doctor had written reference letter of the same date it can be presumed that because reference was made he gave discharge to patient. Patient may not be aware about her serious condition on that day and had taken discharge but just after two days, she was taken to Dr. Patel where emergency procedure was Rnm a20062013 Page 6 of 8 carried out. Therefore it cannot be believed that patient had quarreled with staff and asked for discharge. The opponent has stated in reply that he is ready and willing to file affidavits of staff but not placed on record. Thus, from the documents on record, facts stated by the complainant seem to be credible and District Forum has rightly appreciated it.
(4.06). It is not in dispute that condition of the patient deteriorated during hospitalization since bleeding continued and thereafter discharge from the hospital. When the complainant has established prima facie case of negligence, burden shifts to the opponent to prove that there was no negligence on their part and the doctor was diligent in his duty to render treatment. The opponent doctor failed to prove that complainant had visited him with incomplete abortion and there was no fault on his part. In the circumstances, the findings of District Forum cannot be said erroneous. The findings of the District Forum regarding negligence is also cannot be faulted. It is well known that the person making assertive statement has to prove it. In the instant case, the doctor failed to prove that it was case of "incomplete abortion" done by unqualified lady whereas on the another hand it is admitted position that when patient was given discharge there was product of placenta which was not removed at all and the complainant had to undergo procedure through other doctors. When the opponent failed to prove that product of placenta was there due to incomplete procedure in past, obviously the facts stated by complainant is proved on record that doctor did not removed complete products of placenta during procedure carried out by him. Thus it is clear case of negligence.
[5]. So far, enhancement of compensation is concerned, it is true that complainants have placed on record bills and vouchers for the expenses incurred. However, District Forum has not considered the physical pain, mental agony which complainant had undergone for period of about six months and living normal life with some restrictions and therefore award of Rs.2000/- is not adequate compensation. While awarding compensation it is to be remembered that reasonable amount is to be given considering all other aspects. In the instant case, it is rather accepted by the doctor that DNC is a procedure where hospitalization is not necessary. Even then the patient had to remain hospitalized frequently till she is completely cured. Now this hospitalization might have caused inconvenience to all other family Rnm a20062013 Page 7 of 8 members (like her husband) and they are also entitled for compensation. It is also true that she had suffered inconvenience for limited period and after treatment she lives normal life. Uncertainly of life is known to all and everybody has to face uncomfortable incidents unexpectedly. There is no hard and fast rule to award compensation or any exact mathematical formula which would ascertain stress or agony in monetary terms. But since sufferance to more than one person, I would like to award Rs.25000/- towards harassment and mental agony and would like to modify order to that extent.
In the result following final order is passed.
ORDER Appeal no. 2006 of 2013 is hereby dismissed whereas Appeal no. 941 of 2014 is hereby partly allowed.
The order of the District Forum, Surat (Additional) in Complaint no. 259/2011 is hereby modified to the extent that opponents are directed to pay to the complainants the sum of Rs. 25000/- towards compensation for harassment and mental agony and rest of the order is maintained. This order is to be complied within 60 days failing which it shall carry interest @10 % p.a. from 1/8/2023.
There shall be no order as to cost.
The office is directed to send free copies of this order to the parties at the earliest. The office is also further directed to refund the statutory amount that was deposited in Appeal No. 2006 of 2013 to appellant together with interest accrued thereon. The advocate for the appellant is directed to furnish bank details of appellant so as to enable the office to refund statutory amount through RTGS / NEFT.
This order is pronounced on this 30th day of May 2023.
Mr. R N Mehta Member Rnm a20062013 Page 8 of 8