State Consumer Disputes Redressal Commission
1. Dr. Tirath Ram Mittal, Medical ... vs 1. Parkash Kaur Wife Of Shri Budh Ram, ... on 9 January, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.480 of 2006 Date of Institution: 14.02.2006 Date of Decision: 09.01.2012 1. Dr. Tirath Ram Mittal, Medical Officer, Community Health Centre, Mandi Dabwali, District Sirsa. 2. New India Assurance Co. Ltd. having its Regional Office at S.C.O. 36-37, Sector 17-A, Chandigarh through Shri Anil Chawla, Admn. Officer, duly constituted attorney. Appellants (Ops No.2 & 3) Versus 1. Parkash Kaur wife of Shri Budh Ram, Resident of Village Tappi, Tehsil Dabwali, District Sirsa. Respondent (Complainant) 2. Senior Medical Officer, Community Health Centre, Mandi Dabwali, District Sirsa. Respondent (OP-1) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Vikas Kumar, Advocate for appellant No.1. Shri P.S. Saini, Advocate for appellant No.2. Shri G.I. Sharma, Advocate for respondent No.1. None for respondent No.2. O R D E R
Justice R.S. Madan, President:
Challenge in this appeal is to the order dated 06.01.2006 passed by District Consumer Forum, Sirsa in complaint No.843/2002 whereby appellants-opposite parties have been held negligent in treating complainant Parkash Kaur.
The brief facts of the present case as set up by the complainant (respondent No.1 herein) in her complaint before the District Forum are reproduced as under:-
Complainant felt pain in her abdomen on 30.05.2002, she was taken to General Hospital, Dabwali where she was examined by opposite party No.2 (Dr. Tirath Ram Mittal) and diagnosed her a patient suffering from cholelithiasis and advised for surgery. Complainant was admitted in the aforesaid hospital on 02.06.2002 and was operated upon by Dr. Tirath Ram Mittal. She was discharged from the hospital on 11.06.2002 in good condition. Complainant again felt pain in her abdominal area, she was immediately taken to Hospital at Bikaner where she was treated by Dr. Sandeep Jain, M.C. sho diagnosed the patient and advised for ultrasound-sonography. Accordingly, ultrasound was got conducted which showed the Gall bladder wall thick and multiple calculus in organ lumen with distel shadwin. Thus, according to the complainant the doctors of General Hospital, Dabwali had not performed the operation of gall bladder stone and also not intimated about this to the complainant or her attendants. Thus, the complainant alleged it a case of medical negligence and deficiency in service against the opposite parties and by filing complaint before the District Consumer Forum, sought direction to the opposite parties to pay compensation of rupees three lacs jointly and severally and litigation expenses of Rs.5,000/-.
Upon notice, the opposite parties No.2 and 3 appeared and contested the complaint. Opposite Party No.2 in his written statement took the plea that the complainant was advised operation from Medical College level hospital. The complication regarding not removal of the gall bladder containing stone had also been mentioned in the Discharge Slip as well as in the bed head ticket. The USG report had confirmed that the complainant was suffering from Cholelithiasis and then the opposite party No.2 had advised surgery for removing the gall bladder containing stones. The abdomen of the complainant was opened for removal of the gall bladder containing stone but it was found that the infundibulax part of the gall bladder was enlarged hard and adherent to the common bile duct, hepatic artery and partal vein. The opposite party No.2 had attempted for dissection but the same proved futile. Therefore, cholecystectomy was abandoned as further dissection could have led to injury to the blood vessels, which may have to prove fatal to the life of the patient at the operation table itself. Thus, in order to safe the life of complainant, abdomen was stitched without removing gall-bladder containing stone and the complainant was advised to get herself operated for gall-bladder in Medical College level hospital. Pot operative period in the hospital remained satisfactory. Stitches were removed on 11.06.2002 incision had healed and the patient was discharged in satisfactory condition. Discharge Slip was given to the complainant on the same day and complete bed head ticket was also given to the complainant at her request. All the facts about not removal of gall-bladder mentioned in the Discharge Slip and in the bed head ticket. Thus, denying any kind of deficiency in service on his part the opposite party No.2 prayed for dismissal of the complaint.
Opposite Party No.3 while contesting the complaint denied the allegations of the complainant and prayed for dismissal of the complaint.
District Consumer Forum vide order dated 06.01.2006 accepted complaint and issued direction to the opposite parties given below:-
The complainant in the present case claimed a sum of Rs.three lacs on account of physical and mental harassment pain and agony inconvenience etc and on account of financial loss, expenditure incurred on treatment and medicine transportation etc. Hence, keeping in view the totality of the case we award Rs.two lacs as compensation on these counts. We direct the respondents to pay a sum of Rs.two lacs to the complainant within a period of six weeks. The aforesaid amount of award shall be paid by the respondent No.3 New India Assurance Company Ltd branch office Mandi Dabwali District Sirsa because the Op No.2 has insured all his acts of treatment and operation of patient with New India Assurance Company. Therefore, we direct the respondent No.3, New India Assurance Company to make the compliance of the order within stipulated period of six weeks failing which the complainant shall be entitled to recover the aforesaid amount with interest @ 9% per annum from the date of institution of the present complaint till its realization with costs of proceedings to the tune of Rs.2500/-. We order accordingly. No order as to costs at this stage.
Aggrieved against the order of the District Consumer Forum, the opposite parties No.2 and 3 have come up in appeal.
We have heard learned counsel for the parties and perused the case file.
As per the allegations levelled by the complainant in her complaint were that the doctors of Civil Hospital, Dabwali had neither performed the operation of the gall bladder stone nor intimated the complainant and her attendants regarding the condition of the dissection performed upon the complainant.
On behalf of the appellants-opposite parties it is contended that the complainant was admitted in General Hospital, Dabwali on
02.06.2006 for surgery. Surgery was performed for removal of the Gall Bladder containing stones but when the abdomen of the complainant was opened for removal of Gall Bladder containing stones, it was noticed that surgery may prove fatal to the life of patient at the operation table itself and for that reason cholecystectomy was abandoned without removal of Gall Bladder containing stones in order to save the life of the patient (complainant). However, the complainant was advised to get herself operated for Gall Bladder in Medical College Hospital. Post operative period in the hospital remained satisfactory.
It is further contended that in the Discharge Slip (Ex.C-5) it was clearly mentioned that Gall Bladder could not be removed due to the complications as mentioned in the foregoing paras. In support of their arguments learned counsel for the appellants referred to Discharge Slip Ex.C-5, the relevant part of which is reproduced herein below:-
Operation:
Patient was admitted with diagnosis of Choletithiasis (Gall Bladder Stones) on opening abdomen, the infundibular region of gall bladder was hard and thickened. It was adherent to the common Bile duct posteriorly. All attempts to separate failed. So cholecystectomy could not be done. Post operative period was uneventful. Sutured removed. Incision healed. Patient discharged in satisfactory condition.
Our attention was further drawn towards the BED HEAD TICKET Ex.R-2, wherein the treating doctors have mentioned that:-
.Attempts for dissection proved futile. ? Ca Gall Bladder cholecystectomy abandoned..
In view of the aforesaid documents it cannot be said that the treating doctors had not disclosed to the complainant and her attendants about the treatment given by them. Rather, it is fully established on the record that the treating doctors at General Hospital, Dabwali had conducted the operation of the complainant by exercising their skill. Thus, it cannot be a case of any kind of medical negligence and deficiency in service on the part of the opposite parties. The basic principles which have been discussed by the Honble Supreme Court with respect to the medical negligence have been given in the judgment cited as Kusum Sharma and others versus Batra Hospital & Medical Research Centre and others, 2010 ACJ 1444, reproduced herein below:-
(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.
In the above cited judgment, Honble Supreme Court has clearly observed that the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
Further inference can be drawn from the judgment rendered by Honble Supreme Court in case cited as MARTIN F. DSOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC) wherein it has been 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. Merely that the opposite party No.2 (treating doctor) could not remove the gall bladder of the complainant, cannot be treated as a case of medical negligence. The plea of the complainant that the treating doctors had not told them about non-removal of the gall bladder has been proved false in view of the Discharge Slip Ex.C-5 and BED HEAD TICEKT Ex.R-2, wherein it is so recorded. District Consumer Forum erred for not appreciating the facts of the case in its true perspective. 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 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 09.01.2012 President B.M. Bedi Judicial Member