National Consumer Disputes Redressal
Dhiraj Solanki & Anr., vs Dr. Alka Goel & 2 Ors., on 31 May, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 429 OF 2013 1. DHIRAJ SOLANKI & ANR., S/o late Shri Rajbir Solanki, R/o D-130, Green Valley Apartment, Sector-18, Rohini, DELHI. ...........Complainant(s) Versus 1. DR. ALKA GOEL & 2 ORS., Block F-7, Flat No. 33, Sector-16, Rohini, DELHI - 110085. 2. M/S. SATYAM HOSPITAL (P) LTD., Through its MD, Shri Vijay Kohli, 64-65/A-4, Sector-16, Rohini, DELHI - 110085 3. MR./DR. RAM NARAIN TIWARI S/o Shri Raj Kumar Tiwari,
R/51 Budh Vihar,
Part-1, Near Rohini, DELHI - 110 085 4. DR. GAURAV BANSAL M.S. NAVJEEVAN HOSPITAL, A-12, PUSHPANJALI ENCLAVE, OPP. JAIPUR GOLDEN HOSPITAL RED LIGHT, OUTER RING ROAD, PITAMPURA, DELHI-110085. 5. JAIPUR GOLDEN HOSPITAL (THROUGHG ITS CMO) 2, INSTITUTIONAL AREA, SECTOR-3, ROHINI,DELHI-110085 6. DR. RENU AGGARWAL (GYNAECOLOGIST VISITING CONSULTANT NAVJEEVAN HOSPITAL) A-3/105, PRINTERS APPARTMENTS, SECTOR-13, ROHINI,DELHI. 7. DR. ANNU NAYYAR(RADIOLOGIST NAVJEEVAN HOSPITAL) 112, ENGINEERS ENCLAVE, PITAMPURA, DELHI 8. UNITED INDIAN INSURANCE COMPANY LIMITED, OFFICE NO.7,GF 150 BBC COMPLEX,KILOKRI RING ROAD, OPP. MAHARANI BAGH, NEW DELHI-110014 9. UNITED INDIA INSURANCE COMPANY LIMITED, OFFICE NO.54, JANPATH CONNAUGHT PLACE, NEW DELHI 10. ORIENTAL INSURANCE COMPANY LIMITED, ORIENTAL HOUSE A-25/27, ASAF ALI ROAD, NEW DELHI-110002 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT :
Dated : 31 May 2024 ORDER
For the Complainants : Mr. Dinesh Malik, Advocate
Mr. Akash Saini, Advocate
Mr. Retesh Malik, Advocate
For the Opp. Party-1 : Ex-parte
For the Opp. Party-2 : Mr. Sandeep Kapoor, Advocate
For the Opp. Party-3 : Mr. Bikki, AR
For the Opp. Party-4 : Nemo
For the Opp. Party-5 : Mr. Ravi Kant, Advocate
For the Opp. Party 6 : Mr. Anoop K. Kaushal, Advocate
For the Opp. Party-7 : Mr. Himanshu Sehrawat, Advocate
Mr. Avijit Mani Tripathi, Advocate
For the Opp. Party-8 & 9 : Mr. Maibam N Singh, Advocate
For the Opp. Party-10 : Ms. Akriti Goel, Advocate
1. Heard Mr. Dinesh Malik, Advocate, for the complainants, Mr. Sandeep Kapoor, Advocate, for opposite party-2, Mr. Bikki, AR, for opposite party-3, Mr. Ravi Kant, Advocate, for opposite party-5, Mr. Anoop K. Kaushal, Advocate, for opposite party-6, Mr. Himanshu Sehrawat, Advocate, for opposite party-7, Mr. Maibam N Singh, Advocate, for opposite party-8 &9 and Ms. Akriti Goel, Advocate, for opposite party-10.
2. Dhiraj Solanki and Ms. Radhika Solanki have filed above complaint for directing the opposite parties jointly and severally to pay (i) Rs.10025000/- as compensation; (ii) Rs.2250/- as medical expenses, incurred at Satyam Hospital, Rs.4900/- as medical expenses, incurred as Nav Jeevan Hospital and Rs.5000/- as medical expenses incurred at Jaipur Golden Hospital; (iii) Rs.20/- lacs, as the compensation for loss of companionship and life amenities, Rs.5/- as compensation for mental agony and suffering of complainant-1 and Rs.50/- as compensation for mental agony and suffering of complainant-2; (iv) Rs.20/- as punitive damages; (v) Rs.5/- as litigation costs; and (vi) any other relief which is deemed fit and proper in the facts of the case.
3. The complainants stated as follows:-
(a) Mrs. Kaamini Solanki (the patient), aged 34 years, was the wife of complainant-1 and mother of complainant-2. The patient was T.G.T. (Physical Education) and was posted in Guru Harkishan Public School, Punjabi Bagh, New Delhi on the post of T.G.T. (Physical Education) since 22.01.2008 and was drawing salary of Rs.21232/- per month at the relevant time. Delhi High Court, vide order dated 28.10.2015 passed in Writ Petition (C) No.1004 of 2015, directed to provide benefits of 6th Pay Commission Recommendation with retrospective effect since 2006. Due to which revise salary has become Rs.41000/- per month.
(b) The patient was pregnant for about two months and was under regular check-up and consultation of Dr. Alka Goel, Gynaecologist (OP-1). She suffered from high grade fever and pain in lower abdomen. Complainant-1 took the patient on 13.05.2013 to the residence-cum-clinic of Dr. Alka Goel (OP-1). After check-up, she referred the patient to Satyam Hospital (OP-2), where she was consultant gynaecologist. Complainant-1 took the patient to Satyam Hospital (OP-2) where she was admitted at 11:00 hours on 13.05.2012. In Satyam Hospital (OP-2), ultrasound of the patient was done at 15:45 hours, which showed miscarriage of foetus, which was dead and uterus was enlarged. Dr. Ram Narain Tiwari (OP-3) talked with Dr. Alka Goel on telephone and informed her about the condition of the patient. Dr. Alka Goel (OP-1) told that she was coming within 15-20 minutes. Complainant-1 also contacted Dr. Alka Goel (OP-1) on phone and she told that she was in the way and would reach within 15 minutes. Even after passing one hour, Dr. Alka Goel (OP-1) did not reach, then complainant-1 asked the doctors and the owner of Satyam Hospital to call another gynaecologist but the hospital staff again told that the patient was of Dr. Alka Goel, who was coming within 20 minutes. The staffs totally ignored the request of complainant-1. Complainant-1 also made several mobile calls to Dr. Alka Goel (OP-1), who all the times used to assure that she was coming but did not come. Ultimately Satyam Hospital (OP-2) discharged the patient on 13.05.2012 at 20:00 hours by making endorsement as "Left Against Medical Advice" (LAMA).
(c) Complainant-1 then took the patient to Navjeevan Hospital on 13.05.2012 at 21:00 hours, where the gynaecologist again conducted ultrasound, which showed "Free fluid in peritoneal cavity mild amt. in pelvis with internal echoes. Uterus -shows 10 weeks 6 days foetus in uterine cavity. Foetus cardiac activity absent. Placenta is anterior choviedecidual. Separation present." The doctor after examining the report referred the patient to Jaipur Golden Hospital (OP-5), where she was admitted on 14.05.2012 at 00:01 hour and the patient was declared dead on 14.05.2012 at 00:59 hours.
(d) Complainant-1 then filed a complaint against Dr. Alka Goel (OP-1) before various authorities. Complainant-1 sought for information under RTI regarding registration of Dr. Alka Goel and Dr. Ram Narain Tiwari (OP-3). RTI information was supplied by Delhi Medical Council that Dr. Alka Goel (OP-1) was not registered with Delhi Medical Council and Dr. Ram Narain Tiwari (OP-3) was BAMS. The complainant then lodged FIR No.368/2012, PS K.N. Katju Marg, Outer District under Section 304-A IPC on 27.10.2012. In which, after investigation, the police submitted charge sheet under Section 304-A, 419, 420, 465/120-B/34 IPC, r/w Section 27 Delhi Medical Council Act against Dr. Alka Goel, Ram Narain Tiwari, Vijay Kohli, Dr. Gaurav Bansal, Dr. Ashwani Kumar Singh and cognizance was taken, vide order dated 20.10.2015.
(e) Complainant-1 also made a complaint before Delhi Medical Council. Delhi Medical Council after holding inquiry, vide order dated 10.06.2014, found Dr. Alka Goel (OP-1), Dr. Vijay Kohli and Dr. Guarav Bansal (OP-4) as guilty of profession misconduct. Delhi Medical Council wrote a letter dated 12.03.2015 to the Directorate of Health Services, Delhi, who in turn, vide order dated 16.06.2015 took action against Nav Jeevan Hospital.
(f) Against the order of Delhi Medical Council dated 10.06.2014, complainant-1, Dr. Alka Goel (OP-1) and Dr. Guarav Bansal (OP-4) filed their separate appeal before Medical Council of India. All the three were taken together. Ethics Committee found that investigation report at Nav Jeevan Hospital entail that the patient was having abnormal coagulation due to liver dis-function but she did not receive proper management for it and Dr. Renu Agarwal (OP-6) concealed the fact of perforation and did not perform her duties as a doctor. Dr. Anu Nayyar (OP-7), in ultrasound report dated 13.05.2013, did not mention the cause of free fluid in abdomen of the patient. Recommendation of the Ethics Committee was approved by Executive Committee in its meeting dated 04.06.2015/21.09.2015. Medical Council of India, vide order dated 23.10.2015, allowed the appeal of complainant-1 and held Dr. Renu Agarwal (OP-6) and Dr. Anu Nayyar (OP-7) also as guilty of professional misconduct and dismissed the appeals of Dr. Alka Goel (OP-1) and Dr. Guarav Bansal (OP-4).
(g) Dr. Alka Goel was not eligible to write herself as "gynaecologist". She has illegally denoted herself as gynaecologist and consultant at Max Hospital. The patient was admitted in Satyam Hospital (OP-2) at 11:00 hours on 13.05.2012. Dr. Ram Narian Tiwari (OP-3) was BAMS and was not enrolled with Delhi Medical Council, even then, he was posted as Resident Medical Officer at Satyam Hospital. He stated before Delhi Medical Council and he had administered all the treatment as per instruction of Dr. Alka Goel. Infact he did nothing for more than four hours. Ultrasound of the patient was done at 15:45 hours, which showed miscarriage of foetus, which was dead and uterus was enlarged. After ultrasound report, it was diagnosed that the patient was critical and every hour was important to save her life. Satyam Hospital discharged the patient at 20:00 hours with endorsement "Left Against Medical Advice". For eight hours, they waited Dr. Alka Goel (OP-1), who in various phone calls assured that she was coming within 15-20 minutes but did not come although on her own reference the patient was admitted in Satyam Hospital, where, she was visiting consultant. OP-1 to 3 committed grave negligence in treating the patient.
(h) The patient was admitted in Navjeevan Hospital at 21:00 hours on 13.05.2012. Dr. Anu Nayyar (OP-7) conducted fresh ultrasound report but did not mention the cause of free fluid in abdomen of the patient. The investigations in Nav Jeevan Hospital entail that the patient was having abnormal coagulation due to liver dis-function but she did not receive proper management for it by Dr. Gaurav Bansal (OP-4) and Dr. Renu Agarwal (OP-6), who also concealed the fact of perforation and did not perform her duties as a doctor. The opposite parties committed gross negligent in treating the patient, which resulted in her death.
(i) Initially the complaint was filed on 18.12.2013, against Dr. Alka Goel, Satyam Hospital and Dr. Ram Narain Tiwari. Thereafter, the complainants filed IA/1254/2016, for amendment of the complaint along with Amended Complaint, which was allowed on 03.02.2016. The complainants filed IA/1275/2017 for impleading opposite parties-8 to 10, which was allowed vide order dated 19.07.2017. Right to file written reply in the complaint of Dr. Gaurav Bansal (OP-4) was closed vide order dated 21.12.2016 and United India Insurance Company Limited (OP-8 & 9) on 04.07.2018.
4. Dr. Alka Goel (OP-1) filed written reply stating that she did MBBS from Lady Harding Medical College, University of Delhi in the year 1987 and registered with Medical Council of India, vide Registration Certificate No.MCI/8008 dated 19.04.1989 and Delhi Medical Council vide Registration Certificate No.49220 dated 19.08.2010. She worked as Junior Resident Doctor in Department of Obstetrics and Gynaecology, St. Stephen Hospital Delhi and Resident Doctor in Department of Obstetrics and Gynaecology, Jaipur Golden Hospital, New Delhi. She also worked with Dr. (Mrs.) S.N. Basu and Dr. Rakesh Taneja. She had vast experience in Obstetrics and Gynaecology and was carrying out profession as a Family Physician & Gynaecologist. The patient was getting treatment from her since 2011 and fully knew her qualification. The patient had two girls child, both were born caesarean. The patient with her husband came to her clinic on 12.05.2013 at 14:30 hours with the complaint of high grade fever. The patient had early pregnancy, as such, OP-1 prescribed mild medicines for fever and advised for bed rest and charged Rs.200/-. On 13.05.2012 around 7:00 hours (Sunday), complainant-1 called her on phone and asked for medicines for fever to the patient. On inquiry, complainant-1 informed that yesterday, the condition of the patient was improved and they also attended anniversary function of Mr. Atul Pratap Singh, his brother-in-law at Gurgaon till late night and came back to their house around 3:00 am on 13.05.2012. OP-1 advised to give 'crocin'. At about 10:00 hours, they came to her residence. The patient was looking 'dehydrated' and was having high fever. After examining, she prescribed medicine 'Niftassr' and Inj. 'Rantac' and asked to admit the patient at Satyam Hospital, as in view of high fever in early pregnancy, the patient could have landed up in 'missed abortion', which could be managed safely in hospital. The patient was admitted at Satyam Hospital at 13:30 hours on 13.05.2012. During admission in Satyam Hospital, she received calls from the hospital's staff, the doctor on duty and complainant-1 regarding update of the condition of the patient. She was not called to attend the patient by anyone nor she told that she was coming. OP-1 was neither "Doctor on Duty" nor "attending doctor" of the patient. As informed by Satyam Hospital, the patient went out from Satyam Hospital at 18:20 hours on 13.05.2012, while walking in LAMA. From the documents attached with the complaint it appears that the procedure for 'Dilatation & Curettage" (D & C) seems to be performed in Nav Jeevan Hospital, which resulted in uterine perforation, excess bleeding, sepsis and the death. After death, complainant-1 did not claim for Post Mortem. She had "Professional Insurance Policy" with Docland Insurance, affiliated with United India Insurance Company Limited at the relevant time. Complainant-1 lodged FIR on false allegations. She came to know about the death of the patient in July, 2013, through Investigating Officer of the police, namely SI Ramesh Thakur. The complaint is liable to be dismissed against her.
5. Satyam Hospital (OP-2) filed its written version stating that it was 20 bedded nursing home, equipped with ultra-modern and advanced medical gadgets and amenities. OP-2 had one advanced and one small Operation Theatre, Intensive Coronary Care Unit, Intensive Care Unit and Out Door Patient Unit. OP-2 retained qualified and experienced doctors from different fields and nursing staffs. OP-2 was licenced by Directorate of Health Services and adheres norms and specifications fixed for running nursing home. The patient was admitted in OP-2 Hospital at 13:15 hours on 13.05.2012. The patient availed the services of OP-2 for paramedical assistance and process of investigation on instruction of OP-1. In terms of the prescription of the consultant doctor, ultrasound of lower abdomen of the patient was conducted around 15:00 hours, which revealed that the patient was carrying pregnancy. Report of ultrasound was shared with the consultant doctor on telephone. The patient was under high grade fever and pregnancy was carrying as such only priority was to control the fever. OP-2 denied that complainant-1 ever solicited the functionary of OP-2 to call other gynaecologist to attend the patient. As informed by medical staff of OP-2, the patient went out from Satyam Hospital at 18:00 hours on 13.05.2012, while walking in LAMA, which has been recorded in her treatment file. Complainant-1 came to OP-2 around 20:00 hours on 13.05.2012 and asked for discharge summary, so that further line of treatment of the patient could be coined after noting the previous line of treatment, then Discharge Summary was given, in which, also LAMA has been noted. The Patient was under the treatment of OP-1 as such, she was not attended by OP-3 during her admission in the hospital OP-2. OP-2 has not committed any negligence and the complaint liable to be dismissed.
6. Ram Narain Tiwari (OP-3) filed his written reply stating that he did Bachelor of Ayurved and Medical Science (BAMS) from Kameshwar Singh, Darbhanga Sanskrit University in the year 1981. BAMS included modern medicine, modern surgery, gynaecology, mid-wifery, Eye and Ent, meteria-medica, pharmacology, pathology, bacteriology, forensic medicine, toxicology, preventive and social medicine and child disease. He was registered with Ayurvedic and Unani Medical Council, Bihar, vide Registration No.3019 dated 28.02.1983. Earlier he was employed in Saroj Hospital, Rohini, Delhi during 10.11.1998 to 31.05.1999. He was employed in OP-2 from about three months prior to the incident under the supervision of Dr. Vijay Kumar Kohli, MD. His job was only to administer and aid the treatment prescribed by the attending specialist doctors in the hospital. The patient was admitted in OP-2 Hospital at 13:15 hours on 13.05.2012 along with prescription of OP-1. OP-3 followed the procedure of administering medicines on the instruction of OP-1 to the patient. Dr. Mahesh Garg conducted ultrasound of lower abdomen of the patient around 15:45 hours and in the report 'missed abortion' was noted. Report of ultrasound was shared with consultant doctor OP-1 on telephone. On which she told that she would be visiting the hospital. Complainant-1 also talked with OP-1. OP-3 tried best at his level to call OP-1 but OP-1 did not turned up. The complaint is liable to be dismissed against him.
7. Dr. Renu Aggarwal (OP-6) filed her written version stating that she did MBBS from Medical College, Rohtak in 1988 and Post-Graduation which includes Diplomat of Obstetrics & Gynaecology of ICMCH. She was registered with Delhi Medical Council, vide Registration No.1574. She worked at St. Stephens Hospital, Holy Family Hospital, Gouri Hospital, Jeewan Hospital, Ashram Chowk, Bhagwati Hospital, Satom Hospital, Navjeevan Hospital, Delhi from past 7-8 years. She received a call from Navjeevan Hospital, Delhi on 13.05.2012 in evening to attend the patient. Dr. Gaurav Bansal (OP-4) had started treatment by giving IV Fluids & antibiotics to stabilize the patient and directed for some tests. She attended the patient at Navjeevan Hospital, at 21:20 hours on 13.05.2012. On physical clinical examination, she found that the patient was in poor condition, in shock and there was bleeding from vagina. USG finding was of 'missed abortion'. On PV examination, the foetus appeared to be sixteen week to eighteen weeks size. As the patient was in shock, she told Dr. Gaurav Bansal (OP-4) and complainant-1 that no gynaecological/obstetric intervention could be done at that belated stage and advised to refer the patient to higher centre for further management. She discharged professional duty with ethical parameters and standard protocol of clinical examination. She remained in Navjeevan Hospital till 21:35 hours and thereafter, she went to Bhagwati Hospital, Sector 13, Rohini, Delhi to attend another delivery. At that time, she had Professional Indemnity Insurance Policy from United India Insurance Company Limited. She has challenged the order of Medical Council of India in Writ Petition (C) No.11835 of 2015, which was pending. The complaint is liable to be dismissed against her.
8. Dr. Anu Nayyar (OP-7) filed her written version stating that she did MBBS, DMRE MD (Radiology). She conducted ultrasonography of the patient on 13.05.2012 at 21:30 hours in Navjeevan Hospital. She found uterus bulky, ten week and six days foetus in uterine cavity; foetal cardiac activity was absent. Mild amount of free fluid in peritoneal cavity with internal echoes. Placenta is anterior and choriodecidual separation was present. She gave report accordingly. There is no allegation of negligence against OP-7 in the complaint. She has been impleaded as Medical Council of India, vide order dated 23.10.2015, held her guilty for committing negligence. She has challenged the order of Medical Council of India before Delhi High Court in Writ Petition (C) No.11129 of 2015, in which, order of Medical Council of India has been stayed and the writ petition is pending. The complainants did not make any allegation against her in the complaint before the police or Delhi Medical Council. She was impleaded in the complaint on 02.02.2016, while the cause of action arose on 13.05.2012. Section 24-A of the Consumer Protection Act, 1986 provides 2 years limitation for filing the complaint from the date of cause of action. No application for condonation of delay has been filed and the complaint is liable to be dismissed.
9. Oriental Insurance Company Limited (OP-10) filed its written reply stating that Dr. Anu Nayyar, Radiologist in Navjeevan Hospital (OP-7) was insured by it with a sum of Rs.5000000/- for a period of 30.03.2013 to midnight of 29.03.2017 with retrospective effect from 30.03.2013. At the time of alleged incident dated 13.05.2012, this policy was not effective.
10. The complainants filed rejoinders to the written replies filed by the respective opposite parties. In rejoinder filed to the reply of Dr. Anu Nayyar, it has been stated that the police has submitted supplementary charge sheet against Dr. Anu Nayyar on 25.04.2016 on which cognizance was taken on 21.07.2015. The complainants filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Dhiraj Solanki and documentary evidence. The complainant filed documentary evidence vide Diary Nos. 30049 and 30050 on 16.10.2015. Opposite party-2 filed the Affidavit of Evidence of Dr. Vijay Kumar Kohli and documentary evidence. Opposite party-6 filed Affidavit of Evidence of Dr. Renu Agarwal and documentary evidence. Opposite party-7 filed Affidavit of Evidence of Dr. Anu Nayyar and documentary evidence. OP-10 filed Affidavit of Evidence of Bipin Kumar. The complainants, OP-6, OP-7 and OP-10 filed their written arguments.
11. We have considered the arguments of the parties and examined the record. Initially the complaint was filed on 18.12.2013, against Dr. Alka Goel, Satyam Hospital and Dr. Ram Narain Tiwari (OP-1 to 3). Thereafter, the complainants filed IA/1254/2016, for amendment of the complaint along with Amended Complaint, which was allowed on 03.02.2016. Dr. Gaurav Bansal, Jaipur Golden Hospital, Dr. Renu Agarwal and Dr. Anu Nayyar were added in the amended complaint as OP-4 to 7. Dr. Gaurav Bansal, Dr. Renu Agarwal and Dr. Anu Nayyar (OP-4, 6 and 7) were working in Navjeevan Hospital, where the patient was admitted at 21:00 hours on 13.05.2012 and attended by Dr. Gaurav Bansal (OP-4), who started treatment by giving IV Fluids & antibiotics to stabilize the patient and directed for some tests and fresh ultrasound. OP-4 also sought for gynaecological consultation from Dr. Renu Agarwal (OP-6), who attended the patient at Navjeevan Hospital, at 21:20 hours on 13.05.2012. On physical clinical examination, she found that the patient was in poor condition, in shock and there was bleeding from vagina. USG finding was of 'missed abortion'. Therefore, she advised for referring the patient to higher centre. Dr. Anu Nayyar (OP-7) conducted fresh ultrasound of the patient in Navjeevan Hospital and gave report on 13.05.2012 at 21:30 hours as "Uterus bulky, ten week and six days foetus in uterine cavity; foetal cardiac activity was absent. Mild amount of free fluid in peritoneal cavity with internal echoes. Placenta is anterior and choriodecidual separation was present". Thereafter, the patient was discharged and admitted in Jaipur Golden Hospital (OP-5) on 14.05.2012 at 00:01 hours, where she was declared dead on 14.05.2012 at 00:59 hours. Cause of action against OP-4, 6 and 7 arose on 13.05.2012 and against OP-5 arose on 14.05.2012. The complaint against them was filed on 03.02.2016. In the amended complaint, the complaint has stated that cause of action arose on 13.05.2012, 10.06.2014, when Dr. Gaurav Bansal and Dr. Renu Agarwal were found guilty Delhi Medical Council and on 23.10.2015, when Dr. Anu Nayyar was found guilty by Medical Council of India.
12. In the present case, death of the patient occurred on 14.05.2012, as such cause of action for filing the consumer complaint arose on 14.05.2012. The complaint filed on 03.02.2016 as against OP-4 to 7, was time barred. Section 24-A of the Consumer Protection Act, 1986 provides two years limitation from the date of cause of action for filing of the complaint. Section 24-A the Consumer Protection Act, 1986 authorises the Commission to condone the delay but no application has been filed for condoning the delay. Cause of action for filing consumer complaint is the date of act of negligence or the when the negligence is noticed by the complainant as held by Supreme Court in V.N. Srikhande Vs. Anita Sena Fernandese, (2011) 1 SCC 53. Section 9 of the Limitation Act, 1963 provides that once limitation started to run, it cannot be postponed. Supreme Court in Vidya Drolia Vs. Durga Trading Company (2021) 2 SCC 338 and Secunderabad Cantonment Board Vs. B. Rama, (2021) 5 SCC 705 has taken similar view. Therefore complaint against OP-4 to 7 is liable to be dismissed as time barred.
13. Supreme Court in L.J. Leach & Company Ltd. Vs. Jardine Skinner & Company, AIR 1957 SC 357, Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil, AIR 1957 SC 357, Vishwambhar Vs. Laxi Narayanan (2001) 6 SCC 163 and Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd., 2022, SCC OnLine SC 1128, held that if amended claim is barred by limitation on the date of amendment, normally such amendment should not be allowed. If the amendment is allowed then issue of limitation should be decided in respect of such amended claim.
14. According to the complainants, complainant-1 took the patient on 13.05.2013 to the residence-cum-clinic of Dr. Alka Goel (OP-1). After check-up, she referred the patient to Satyam Hospital (OP-2), where she was consultant gynaecologist. Complainant-1 took the patient to Satyam Hospital (OP-2) where she was admitted at 11:00 hours on 13.05.2012. In Satyam Hospital (OP-2), ultrasound of the patient was done at 15:45 hours, which showed miscarriage of foetus, which was dead and uterus was enlarged. Dr. Ram Narain Tiwari (OP-3) talked with Dr. Alka Goel on telephone and informed her about the condition of the patient. Dr. Alka Goel (OP-1) told that she was coming within 15-20 minutes. Complainant-1 also contacted Dr. Alka Goel (OP-1) on phone and she told that she was in the way and would reach within 15 minutes. Even after passing one hour, Dr. Alka Goel (OP-1) did not reach, then complainant-1 asked the doctors and the owner of Satyam Hospital to call another gynaecologist but the hospital staff again told that the patient was of Dr. Alka Goel, who was coming within 20 minutes. The staffs totally ignored the request of complainant-1. Complainant-1 also made several mobile calls to Dr. Alka Goel (OP-1), who all the times used to assure that she was coming but did not come. Ultimately Satyam Hospital (OP-2) discharged the patient on 13.05.2012 at 20:00 hours by making endorsement as "Left Against Medical Advice" (LAMA).
15. Dr. Alka Goel stated that the patient was getting treatment from her since 2011 and fully knew her qualification. The patient had two girls child, both were born caesarean. The patient with her husband came to her clinic on 12.05.2013 at 14:30 hours with the complaint of high grade fever. The patient had early pregnancy, as such, OP-1 prescribed mild medicines for fever and advised for bed rest and charged Rs.200/-. On 13.05.2012 around 7:00 hours (Sunday), complainant-1 called her on phone and asked for medicines for fever to the patient. On inquiry, complainant-1 informed that yesterday, the condition of the patient was improved and they also attended anniversary function of Mr. Atul Pratap Singh, his brother-in-law at Gurgaon till late night and came back to their house around 3:00 am on 13.05.2012. OP-1 advised to give 'crocin'. At about 10:00 hours, they came to her residence. The patient was looking 'dehydrated' and was having high fever. After examining, she prescribed medicines 'Niftassr' and Inj. 'Rantac' and asked to admit the patient at Satyam Hospital, as in view of high fever in early pregnancy, the patient could have landed up in 'missed abortion', which could be managed safely in hospital. The patient was admitted at Satyam Hospital at 13:30 hours on 13.05.2012. During admission in Satyam Hospital, she received calls from the hospital's staff, the doctor on duty and complainant-1 regarding update of the condition of the patient. She was not called to attend the patient by anyone nor she told that she was coming. OP-1 was neither "Doctor on Duty" nor "attending doctor" of the patient.
Dr. Vijay Kumar Kohli filed the Affidavit of Evidence and documentary evidence on behalf of OP-2 and stated that the patient was under anti-natal care of Dr. Alka Goel. The patient visited Dr. Alka Goel on 12.05.2012 and consulted her for abdomen pain and fever. The patient again visited Dr. Alka Goel on 13.05.2012 at 12:30 hours. On examination Dr. Alka Goel prescribed some medicine and test and advised for admission in Satyam Hospital. The patient visited OP-2 hospital along with OPD Slip of Dr. Alka Goel and was admitted at 13:15 hours on 13.05.2012. As directed by OP-1, Dr. Mahesh Garg conducted her ultrasound of lower abdomen at 15:45 hours, which showed 10 week pregnancy & missed abortion. Complainant-1 and Dr. Alka Goel were informed about ultrasound report. Dr. Alka Goel told that she would talk with the husband of the patient for further treatment after subsiding the fever. The patient was under high grade fever as such only priority was to control the fever. After knowing about missed abortion, complainant-1 was anxious and wanted to do "dilation and curettage" (D & C) immediately and was repeatedly calling OP-1, who was telling to wait till subsiding the fever. Complainant-1 told OP-1 that he was taking his patient to Navjeevan Hospital. Thereafter, they left the hospital while walking without information, which was noticed by the staff at 18:20 hours. He denied that complainant-1 ever solicited the functionary of OP-2 to call other gynaecologist to attend the patient. As informed by medical staff of OP-2, the patient went out from Satyam Hospital at 18:00 hours on 13.05.2012, while walking in LAMA, which has been recorded in her treatment file. Complainant-1 came to OP-2 around 20:00 hours on 13.05.2012 and asked for discharge summary, so that further line of treatment of the patient could be coined after noting the previous line of treatment, then Discharge Summary was given, in which, also LAMA has been noted. The Patient was under the treatment of OP-1 as such, she was not attended by OP-3 during her admission in the hospital OP-2. The patient availed the services of OP-2 for paramedical assistance and process of investigation on instruction of OP-1.
16. Although Dr. Alka Goel stated that she was neither "Doctor on Duty" nor "attending doctor" of the patient but from the affidavit of Dr. Vijay Kumar Kohli and documentary evidence i.e. hospital record of Satyam Hospital, it is proved that Dr. Alka Goel was treating doctor of the patient. According to the complainants, the patient was admitted in Satyam Hospital at 11:30 hours, however, from the hospital records as filed by the complainants along with Rejoinder, it is proved that the patient was admitted at 13:15 hours (1:15 PM) (not 11:30 AM) on 13.05.2012. The complainants did not make any allegation against Ram Narian Tiwari, except his professional qualification to administer modern medicines. Ram Narian Tiwari and medical staff of Satyam Hospital administered the medicines as prescribed by Dr. Alka Goel on the prescription slip or on telephone and followed other instructions of Dr. Alka Goel.
17. Delhi Medical Council in the order dated 10.06.2014 found that Dr. Alka Goel, claimed herself as gynaecologist without having Post Graduate degree, she has wrongly noted herself as Visiting Consultant of Max Hospital, she failed to mention her registration number, in the prescription dated 13.05.2012 and in spite of the fact that the patient was admitted under her, she did not visit the hospital, in spite of several calls, which are violation of Regulation 1.2.1, 1.4.1, 2.4 and 7.20 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. Ram Narian Tiwari was practicing allopathic modern medicine, without holding recognized medical qualification as per Schedule First, Second and Third of Medical Council Act, 1956 and also he was not registered with Medical Council Delhi. Medical Council of India in its order dated 23.10.2015 affirmed the order of Delhi Medical Council and also held Dr. Vijay Kumar Kohli as guilty of appointing Dr. Ram Narain Tiwari in Satyam Hospital and allowing him to practice in modern medicines.
18. The orders of Delhi Medical Council or Medical Council of India do not record any finding in respect of negligence committed by OP-1 to 3 during treatment of the patient on 13.05.2012 from 13:15 hours to 18:00 hours as stated by OP-1 and 2 or 20:00 hours as stated by the complainants. Medical Council of India in the order dated 23.10.2015 came to the conclusion that there was some instrumentation procedure was carried out in the labour room/operation theatre of Navjeevan Hospital resulting into perforation. So far as professional misconduct committed by OP-1 to 3, they have been awarded punishment for it. But whether violation of the provisions of Medical Council Act, 1956 or Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 amounts to negligence in the present case?
19. Dr. Alka Goel and Satyam Hospital (OP-1 and 2) took the plea that although ultrasound report dated 13.05.2012 at 15:45 hours, showed missed abortion, but as the patent was suffering from high grade fever, they gave priority to lower down the fever and then to adopt the procedure for "dilation and curettage" (D & C). But after knowing of 'missed abortion', complainant-1 was anxious and wanted to do D & C immediately and was repeatedly calling OP-1, who was telling to wait till subsiding the fever. Complainant-1 told OP-1 that he was taking his patient to Navjeevan Hospital. Thereafter, they left the hospital while walking without information OP-2, which was noticed by the staff at 18:20 hours. Dr. Alka Goel (OP-1) did MBBS in the year 1987 and registered with Medical Council of India, vide Registration Certificate No.MCI/8008 dated 19.04.1989 and Delhi Medical Council vide Registration Certificate No.49220 dated 19.08.2010. She worked as Junior Resident Doctor in Department of Obstetrics and Gynaecology, St. Stephen Hospital Delhi and Resident Doctor in Department of Obstetrics and Gynaecology, Jaipur Golden Hospital, New Delhi. She also worked with Dr. (Mrs.) S.N. Basu and Dr. Rakesh Taneja. She had vast experience in Obstetrics and Gynaecology and was carrying out profession as a Family Physician & Gynaecologist. She was fully qualified to attend the patient. There is nothing on record to prove that the medicines prescribed by her were inappropriate for the patient. She decided to lower down the fever first and then adopt further procedure for D & C. This may be an error in judgment and not negligence.
20. Supreme Court in Jacob Mathew v. State of Punjab (2005) 6 SCC 1, held that negligence is the breach of a duty caused 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage". Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. These principles were consistently applied in Kusum Sharma Vs. Batra Hospital & Medical Reserch Centre, (2010) 3 SCC 480, Arun Kumar Manglik Vs. Chirau Health & Medicare Private Ltd., (2019) 7 SCC 401, Maharaja Agrasen Hospital Vs. Master Rishabh Sharma (2020) 6 SCC 501 and Harish Kumar Khurana Vs. Joginder Singh, (2021) 10 SCC 291.
O R D E R
In view of the aforesaid discussions, the complaint is dismissed on merit as against opposite parties 1 to 3 and dismissed as time barred as against opposite parties 4 to 10.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER