State Consumer Disputes Redressal Commission
Community Health Centre vs Harjinder Singh on 31 January, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.418 of 2006
Date of institution : 20.3.2006
Date of decision : 31.1.2012
1. COMMUNITY HEALTH CENTRE, KHEM KARAN, TRHOUGH DR.
HARJAP SINGH MAHAL, SENIOR MEDICAL OFFICER, RAJOKE,
CAMP AT KHEM KARAN, TEHSIL PATTI, DISTRICT AMRITSAR
PRESENTLY ASSISTANT CIVIL SURGEON, AMRITSAR.
2. DR. AMARBIR SINGH, CHIEF MEDICAL OFFICER, P.H.C. RAJOKE,
KHEM KARAN, DISTT. AMRITSAR, PRESENTLY, MEDICAL
OFFICER, CHAWINDA DEVI RURAL HOSPITAL, TEHSIL &
DISTRICT AMRITSAR.
3. DR. ANUJEET KAUR, ASSISTANT DOCTOR, CHC, KHEM KARAN,
DISTT. AMRITSAR, PRESENTLY MEDICAL OFFICER, CHAWINDA
DEVI RURAL HOSPITAL, TEHSIL AND DISTRICT AMRITSAR.
4. MRS. BALJIT KAUR, STAFF NURSE, CHC, KHEM KARAN, DISTT.
AMRITSAR, PRESENTLY AT CHC, GHARYALA, TEHSIL PATTI,
DISTRICT AMRITSAR.
5. DR. PAWAN BHAGAT, ANAESTHETIC, COMMUNITY HEALTH
CENTRE, KHEM KARAN, TEHSIL PATTI, DISTRICT AMRITSAR
PRESENTLY SENIOR RESIDENT, DEPARTMENT OF
ANAESTHESIOLOGY, GOVT. MEDICAL COLLEGE, AMRITSAR.
.......APPELLANTS
VERSUS
HARJINDER SINGH S/O JAIMAL SINGH, RESIDENT OF VILLAGE
GAZZAL, TEHSIL PATTI, DISTRICT AMRITSAR.
......RESPONDENT
First Appeal against the order dated 6.12.2005 of
the District Consumer Disputes Redressal Forum,
Amritsar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : Shri Updip Singh, Advocate. For the respondent : None.
JUSTICE S.N. AGGARWAL, PRESIDENT:
VERSION OF THE RESPONDENT:
Harjinder Singh respondent was the husband of Raj Kaur (now deceased) (in short "the patient"). Five children were born from the wedlock of the First Appeal No.418 of 2006. 2 respondent with the patient, namely, Jatinder Singh, Sandeep Kaur, Varinder Singh, Manpreet Singh and Ramandeep Kaur. The patient had normal delivery at the time of birth of her children. The respondent was a poor person. He and the patient decided to have family planning operation. For this reason, the respondent and the patient went to the Community Health Centre, Khem Karan (appellant No.1). The respondent and the patient approached Dr. Amarbir Singh, Chief Medical Officer appellant No.2 who advised the respondent that the patient should undergo family planning operation after depositing the requisite fee for rendering medical services.
2. It was further pleaded that the patient was admitted in the appellant hospital on 6.5.2004 under the control of appellant no.2. On the same day i.e. on 6.5.2004 appellant No.2 with the help of appellants No.3 to 5 operated the patient.
3. It was further pleaded that after the operation on 6.5.2004 the patient remained in the appellant hospital but appellants No.2 to 4 never bothered to attend to her or to give her post operative surgery attendance for whole of the night i.e. on the night intervening 6.5.2004 and 7.5.2004. No clinical tests were conducted before or after the operation. The appellants had also not taken the advice of the physician regarding the general condition of the patient before operating the patient. Appellant No.5 was also negligent in administering the anaesthesia without anaylising the laboratory test notes recorded on the file of the patient.
4. It was further pleaded that on 7.5.2004 in the morning appellants No.2 and 3 resumed the duties after coming from Amritsar. It was brought to their notice by the respondent that the patient was feeling uneasy. However appellants No.2 and 3 never bothered to check up the patient but assured the respondent that her health was normal and she would be discharged on the next morning. For whole of the day on 7.5.2004 the patient felt uneasy and in the later hours of the evening, the respondent told appellants No.2 and 3 that the patient was having problem in respiration. He was not heard. Rather appellants No.2 and 3 preferred First Appeal No.418 of 2006. 3 to go back home without checking the patient. They also talked to the respondent with harsh words.
5. It was further pleaded that at about 11.00 in the night on 7.5.2004 the patient started feeling difficulty in respiration. At that time she was not attended by any Staff Member. With great efforts, the respondent contacted Dr. Roshan Lal at his residence who gave the telephone number of appellant No.2 and told the respondent to talk to him. The respondent gave a telephonic call to appellant No.2 at Amritsar and told him about the seriousness of the patient. Appellant No.2 along with appellant No.3 reached the hospital at about 1.30 A.M. in the night. They examined the patient and declared her dead and handed over the dead body to the respondent. The death of the patient has occurred due to the medical negligence of the appellants.
6. It was further pleaded that at the time of handing over of the dead body of the patient, the respondent requested appellants No.2 and 3 to give him the medical reports and treatment chart of the patient but appellant No.2 told the respondent to come after 2/3 days. The respondent again went to appellants No.2 and 3 two-three days thereafter to collect the medical reports and treatment chart but they again put off the matter on one pretext or the other and pleaded lame excuses.
7. It was further pleaded that on 23.6.2004 the respondent obtained the order from the court of Judicial Magistrate, Patti for the supply of medical reports/treatment chart of the patient to the respondent. This order was shown by the respondent to appellants No.2 and 3. He was again told to come after three- four days. The respondent again visited the hospital four days thereafter on which appellants No.2 and 3 handed over the said reports of the patient. It clearly revealed that the medical record was not prepared by appellants No.2 and 3 at the time of medical treatment. Rather it was fabricated when they had to supply it to the respondent under the court orders.
First Appeal No.418 of 2006. 4
8. It was further pleaded that after getting the medical record/treatment chart of the patient from appellants No.2 and 3, the respondent consulted many doctors who opined orally that there was medical negligence on the part of the appellants for conducting dysfunctional uterine bleeding meaning thereby the heavy blood loss during menstrual periods but actually D.U.B. was diagnosed after the lab. test. However in the case of the patient no lab. test was got conducted by appellants No.2 and 3. Moreover no treatment was given. No blood was transfused to the patient. It means, therefore, that appellant No.2 had diagnosed the patient without any lab. test or lab. report. It was dangerous to the life of the patient in normal condition.
9. It was further pleaded that appellant No.2 has taken the plea that the patient had complained of excessive bleeding for five months. At the same time, appellant No.2 has written that Hb of the patient was 10.2 grams. It means, therefore, that the patient was not anemic at the time of her admission in the appellant hospital. Moreover the patient was having 7 months' old daughter with her. It could not be possible if the patient was having excessive bleeding for 5 months. Appellant No.2 was also given reports of B.T. and C.T. which means bleeding time and clotting time. Appellant No.2 had written B.T. as 2'.6" and C.T. as 4'56". It was normally written in minutes and seconds and the manner of writing of BT & CT by the appellants was totally concocted and fictitious. Moreover the original test reports were on the file as there were no lab. tests. It also revealed that these reports were false and were prepared later on just to save the skin from legal liability.
10. It was further pleaded that the medical negligence on the part of the appellants was very obvious for the reason that the patient was admitted in the appellant hospital on 6.5.2004. She was operated on the same day. She died in the hospital itself on 8.4.2004 at 1.40 A.M. but as per the hospital record appellant No.2 had given injection Perinorm and Rantac to the patient for over episode of vomiting on 10.5.2004 at 10.00 P.M. which clearly revealed that the file was First Appeal No.418 of 2006. 5 prepared at one stretch in one day and for this haste a great mistake was done by appellant No.2. The death of the patient was caused by the appellants by their medical negligence. The respondent and his family members had suffered a serious mental agony and financial loss. Hence the complaint for a compensation amounting to Rs.15 lakhs. Interest and costs were also prayed. VERSION OF APPELLANT NO.1:
11. Appellant No.1 filed a separate written statement. It was pleaded that the complaint was not maintainable in the eyes of law as the respondent had suppressed material facts. It was not maintainable as it has not been filed by the competent person. It was denied if there was any deficiency in service on the part of the appellants. The appellant being the Head of the appellant Hospital was camping at Khem Karan. He was inspecting CHC Khem Karan and PHC Rajoke on each and every day. He was present in the appellant Hospital, Khem Karan from 9.00 A.M. to 5.00 P.M. on all the working days. He also makes the surprise visits to CHC and PHC to check the functioning of these hospitals. He had found that the functioning of CHC Khem Karan and PHC Rajoke were running smoothly and properly. There was no medical negligence on the part of the doctors, staff, para-medical staff or nurses working in the appellant hospital. The staff is dedicated, well qualified and fully aware about the latest development in medical line. They perform their duties to the best of their capability and in the interest of general public. Neither the respondent nor any of his relative or friend ever came forward to complain that the patient was not properly attended.
12. It was further pleaded that after looking at the medical record of the patient, it was found that the patient was operated for the third degree uterovaginal Prolapse with cystocoel and rectocele and DUB (Menorrhagia) and not only DUB as alleged in the complaint. On merits, it was denied if appellant No.2 had advised the respondent and the patient to undergo family planning operation or if the operation fee was ever demanded for rendering medical services. Appellant No.2 had never advised the patient to undergo family planning operation. Rs.350/- were First Appeal No.418 of 2006. 6 charged from the respondent for major operation fee as fixed by the Punjab Health Systems Corporation for sterilization operation. No fee was fixed by the Government under the National Family Planning Programme.
13. It was also pleaded that even before 6.5.2004, the respondent and the patient had visited the appellant hospital on 12.4.2004, 15.4.2004 and 29.4.2004 but this fact was kept concealed by the respondent at the time of filing of the complaint. Proper investigation was done on the patient before operating her. It was denied if the patient was not having any problem prior to 6.5.2004. It was also denied if appellants No.2 to 4 failed to attend to the patient to give her post surgery attendance for the whole night i.e. on the night intervening 6.5.2004 and 7.5.2004. It was also denied if no clinical tests were conducted before or after the operation or if the advice was not taken from the physician regarding the general condition of the patient. It was also denied if appellants No.2 to 4 had committed medical negligence or if respondent No.5 had not taken care of the patient before administering anaesthesia before the operation. Rather respondent No.5 had gone through all the medical test reports before administering the anaesthesia.
14. It was further denied if appellants No.2 and 3 were residing in Amritsar or if they had failed to check the patient. The story made out by the respondent was concocted and was far away from the truth. The medical record itself speaks. It was also denied if the hospital staff had not attended to the patient. It was mentioned that Dr. Roshan Lal along with Dr. G.S. Dhillon was on night duty on 7.5.2004. They paid full attention to the patient and after consulting appellants No.2 and 3 had given the proper medicine. Appellants No.2 and 3 were also called from Rajoke which was about 15 kilometers from the appellant hospital. Appellants No.2 and 3 had reached the hospital in no time. Proper attention, medicine and other required treatment was given to the patient. After the condition of the patient had deteriorated, appellants No.2 and 3 had advised the respondent to shift the patient to Amritsar but due to cardio pulmonary arrest the First Appeal No.418 of 2006. 7 patient died on the way. Appellants No.2 and 3 had tried their level best to save the patient even by administering life saving drugs but they could not succeed.
15. It was further pleaded that the medical reports and treatment charts were handed over to the respondent on 26.6.2004 whereas the court orders are dated 27.6.2004. The file was handed over to the respondent. It was denied if appellants No.1 and 2 had fabricated the false medical record or if any of the appellants has committed medical negligence. Hence dismissal of the complaint was prayed.
VERSION OF APPELLANTS NO.2 & 3:
16. Appellants No.2 and 3 have also filed written reply. It was pleaded that the complaint was not maintainable as the respondent had suppressed material facts while filing the complaint. It was also pleaded that before the admission of the patient in the appellant hospital on 6.5.2004 she had come in the appellant hospital on 12.4.2004 as outdoor patient at entry No.3384 for tubectomy (sterilization operation). She had got conducted pre-operative investigations. She wanted to know if the bilateral tying of the tubes would raise her uterus upwards.
Upon inquiry from the patient she disclosed that some mass was coming out of the vagina which was causing her a great deal of discomfort and she wanted relief from the said complaint also. The patient was also advised to seek gynecological opinion.
17. It was further pleaded that thereafter the patient had consulted the Gynecologist on 15.4.2004 at OPD Slip No.3488 in the appellant hospital. She was examined by Dr. Anujit Kaur, Medical Officer (named as Dr. Amarjit Kaur respondent No.3 in the complaint but at its proper name in the appeal). Appellant No.3 had gone through the entire history of the patient. She found that the patient was having 3rd Degree Uterovaginal Proplapse with cystocele with rectocele. The patient wanted relief from the suffering caused by prolapse which was causing great discomfort to her in day to day activity. The patient was told about the surgical measures available at the appellant hospital. Since the patient had First Appeal No.418 of 2006. 8 completed her family and all her deliveries were conducted at home by a midwife (Dai). Surgery was the definitive and curative treatment for genital prolapse. Uterine prolapse (downward descent of the uterus) per se was not responsible for loss of life but it could be a source of acute discomfort and suffering. No other branch of surgery involves so less risk and gives much relief as the surgery for genital prolapse. The patient was advised to get herself investigated for major surgery. She was put on treatment for vaginal discharge. While taking her history, the patient had disclosed that she was experiencing heavy prolonged bleeding since two months after the birth of her youngest child.
18. It was further pleaded that in majority of cases of Polymenorrhoea and Polymenorrhagia, DUB occur amongst women aged 30 years to 40 years. The symptoms are related to child bearing rather than particular pregnancy and delivery. The subjects are usually over whelmed by the care of their children and their home and they have little help, few holidays and may be attempting additional work.
19. It was further pleaded that the patient was subsequently put on oral iron therapy while awaiting her investigations done. The patient did not report till 29.4.2004 with her investigations. On inquiry the patient had also disclosed that she had consulted other doctors and other institutions and they had also advised surgical operation to relieve her of the discomfort for Prolapse. Therefore the patient and her family members had decided to get the operative treatment in the appellant hospital.
20. It was further pleaded that the complaint was not maintainable as it was not filed and signed by the competent person. There was no deficiency in service at any stage at the hands of the appellants. Photocopies of the medical reports were received by the respondent on 26.6.2004 one day before the court orders. The doctors and para-medical staff of the appellant hospital and PHC Rajoke were dedicated, well qualified and were aware about the latest developments in medical line. They were performing their duties in the best interest of the general public. First Appeal No.418 of 2006. 9 Neither the respondent nor any of his relatives had made complaint regarding the deficiency in service.
21. It was further pleaded that the patient was operated for 3rd Degree Uterovaginal prolapse with cystocele and rectocele and DUB (Menorrhagia) but not only for DUB as alleged in the complaint. In the appellant hospital there are four permanent doctors, namely, Surgeon, an Eye Specialist, Radiologist and MBBS doctor and five doctors visit the Community Health Centre on different days of the week. There was a duty roster/attendance register. Three doctors were available at CHC Khem Karan along with Senior Medical Officer on 7.5.2004. However appellants No.2 to 5 were not on duty in the institution on 7.5.2004. Despite this fact the patient was seen/examined by appellant No.2 in the morning of 7.5.2004 before he went to his duty in Mini PHC Valtoha and appellant No.3 attended her duty at PHC Rajoke.
22. It was further pleaded that the appellant hospital was working like a multi- speciality hospital as there was a team of qualified doctors and paramedical staff on duty around the clock. The emergency duty of the doctors begins at 2.00 P.M. in the afternoon till 8.00 A.M. next day. The doctors working in the appellant hospital have a varied experience of many years.
23. It was further pleaded that on 7.5.2004 when the patient had a bout of vomiting, she was attended by Dr. G.S. Dhillon (Doctor on duty) and by Dr. Roshan Lal (who happened to be there by chance). After attending to the patient Dr. Roshan Lal had made a telephonic call to appellants No.2 and 3. He informed appellants No.2 and 3 about the treatment rendered to the patient and sought instructions if anything more had to be done. In no time, appellants No.2 and 3 reached the appellant hospital from their residence at Rajoke and personally attended the patient. The patient was given supportive medical treatment as demanded by her existing clinical condition as she was having respiratory problem at that time. It was denied if appellants No.2 and 3 had reached at 1.30 A.M. or if First Appeal No.418 of 2006. 10 after reaching the hospital they had declared the patient dead and handed over dead body of the patient to the respondent.
24. It was further pleaded that the patient had developed respiratory discomfort at 11.00 P.M. when she was attended by the appellants and they tried their level best to relieve her of her discomfort but the efforts could not succeed. With deteriorating condition of the patient and after taking all available measures, appellants no.2 and 3 decided to shift the patient to Tertiary Centre at Amritsar at about 12.40 A.M. on 8.5.2004. On the way to Tertiary Centre where the patient was being taken in a vehicle to Amritsar, the vehicle stopped for filling of petrol/diesel. The patient had sudden cardio pulmonary arrest. The appellants continued with resuscitative measures but could not save the patient. The patient was declared dead at 1.40 P.M. and dead body was handed over to respondent after obtaining his signatures on the bed-head ticket.
25. It was denied if the respondent ever demanded copy of the medical report and treatment chart from the appellants. It was also denied if appellant No.2 had asked the respondent to come after 2/3 days or if he intentionally delayed the matter. Rather the medical report/treatment chart never remains with the doctor. It is always with the record-keeper. It was pleaded that the appellants had supplied the record before receiving the orders of the Judicial Magistrate, Patti. The medical record and treatment chart were given to the respondent on 26.6.2004 while the orders of Judicial Magistrate, Patti were received on 28.6.2004. Appellant No.2 had handed over the medical report/treatment chart to record- keeper Kulwinderjit Kaur on 10.5.2004 after obtaining her signatures.
26. It was further denied if the medical report/treatment chart were fabricated by the appellants. It was a surgery for 3rd Degree Uterovaginal Prolapse with cystocele with rectocele and not solely DUB as alleged. The history of the patient clearly revealed that she wanted relief from discomfort caused by the mass coming out of the vagina. Excessive and prolonged bleedings were just coincidental finding. Despite this, the patient was advised to get the ultra-sound done on OPD First Appeal No.418 of 2006. 11 slip No.3488 dated 15.4.2004 to rule out the various causes of mennorhagia. The patient had refused to get the ultra-sound done. In a case of genital prolapse, a thorough physical examination gives almost all relevant details necessary for diagnosis and for determining the line of management. The sophisticated techniques and investigations have little value in this particular condition.
27. It was further pleaded that there was no need for blood transfusion to the patient as she was not anemic. Her pre-operative Hb was 10.2 grams%. Therefore it was not surprising that the patient was having excessive bleeding during her menstrual cycle since 5 months despite having a 7 month's old daughter. The various pre-operative investigations have been got done at the laboratory of the appellant hospital. The investigations were noted down on the back of the medical file. As per the laboratory record, normal bleeding time varies from one minute to four minutes and clotting time varies from two minutes to six minutes. Since the operating surgeons of the appellant hospital had gone through various pre-operative investigations and found them to be within the normal range, these figures were not fictitious one. Rather these were based on laboratory tests.
28. It was further pleaded that there was no medical negligence on the part of the appellants. Instead of putting the date as 7.5.2004 inadvertently appellant No.2 had put the date as 10.5.2004 as he was to put up the time as 10.00 P.M. It was denied if there was any ulterior motive behind mentioning the wrong date on the medical record. Such type of mistakes can occur by anyone but the allegation of fabrication was false. The wrong mentioning of the date did not amount to deficiency in service or medical negligence nor it rules out genuineness of the medical record. It was repeatedly denied if there was any medical negligence. Dismissal of the complaint was prayed.
VERSION OF APPELLANT No.4:
29. Appellant No.4 filed a separate written statement. She was a Staff Nurse in the appellant hospital. She also denied if appellant No.2 had advised the patient to undergo family planning operation. Rs.350/- were charged for major First Appeal No.418 of 2006. 12 operation fee as fixed by Punjab Health Systems Corporation for sterilization operation. No fee has been fixed by the Government under the National Family Planning Programme. Appellant No.4 also pleaded that the patient had visited the appellant hospital on 12.4.2004, 15.4.2004 and on 19.4.2004 before her admission on 6.5.2004. She denied if appellants no.2 to 4 had not bothered for the patient on the night intervening 6.5.2004 and 7.5.2004 or if the advice was not taken from the physician. It was also denied if there was any medical negligence on the part of appellants No.2 to 4. It was also denied if appellant No.5 had not taken care before administering anaesthesia prior to operation. It was also denied if appellants No.2 and 3 were residing in Amritsar or if they never bothered to look after the patient. It was a concocted story. Dr. Roshan Lal and Dr. G.S. Dhillon were present in the night of 7.5.2004. They attended to the patient. Appellants No.2 and 3 were in village Rajoke which was just 15 kilometers from the appellant hospital and they reached the appellant hospital in no time. Proper attention, medical treatment and medicines were given to the patient. When the condition of the patient declined and she became serious, appellants No.2 and 3 immediately decided to take the patient to Amritsar but on the way due to cardio pulmonary arrest the patient had died. It was denied if there was any medical negligence on the part of the appellants. The medical chart/record was given to the respondent on 26.6.2004 while the court order was passed on 27.6.2004. Dismissal of the complaint was prayed.
VERSION OF APPELLANT NO.5:
30. Respondent No.5 also filed a separate written statement. Almost same preliminary objections were taken as were taken in the written replies filed by the other appellants. It was further pleaded that before administering anaesthesia, appellant No.5 had gone through the pre-operative laboratory investigations of the patient as was shown on her medical file. He had thoroughly examined the patient and had found it fit for administration of anaesthesia and surgery. An anaesthetist was capable of declaring a patient fit for a particular surgery and First Appeal No.418 of 2006. 13 anaesthesia without seeking the advice of a physician. The advice of the physician is taken only when required and not in every case.
31. It was further pleaded that the vitals of the patient were stable. The patient developed no untoward complication during surgery or after her being shifted out of the operation theatre. It was a first major case under anaesthesia on 6.5.2004. Subsequent to it, there were three more operative surgeries which were carried under anaesthesia on the same day by appellants No.2 to 4 and anaesthesia was administered by respondent No.5. It was denied if appellant No.2 had advised the respondent to undergo family planning operation. Rs.350/- were charged for major operation fee as fixed by Punjab Health Systems Corporation for sterilization operation. No fee was charged under the National Family Planning Programme. Almost similar pleadings were made by respondent No.5 and it was pleaded that there was no medical negligence on the part of the appellants. Dismissal of the complaint was prayed.
PROCEEDINGS BEFORE THE DISTRICT FORUM:
32. Harjinder Singh respondent filed his affidavit Ex.C-1. He also filed the affidavit of Joginder Kaur who was the real sister of the patient as Ex.C-2. The respondent also proved documents Ex.C-3 to Ex.C-5. The respondent also filed the affidavit of Amrik Singh, co-villager of the respondent as Ex.C-6.
33. On the other hand, Dr. Amarbir Singh appellant No.2 filed his affidavit Ex.R-1 while Dr. Anujeet Kaur appellant No.3 filed her affidavit as Ex.R-2. The appellants also proved documents Ex.R-3 to Ex.R-21. The appellants also filed the affidavit of Dr. Gurbinder Singh Dhillon, Medical Officer, Rajoke as Ex.R-22, affidavit of Sukhraj Singh as Ex.R-23, affidavit of Dr. Roshan Lal, Medical Officer, CHC, Khem Karan as Ex.R-24, affidavit of Parminder Singh, Radiographer as Ex.R-25 and affidavit of Angrej Singh as Ex.R-26. The appellants also proved the OPD entries as Ex.R-27. Dr. Harjap Singh Mahal, Senior Medical Officer, Rajoke Camp at Khem Karan filed his affidavit Ex.R-28 and Dr. Pawan Bhagat filed his affidavit Ex.R-29.
First Appeal No.418 of 2006. 14
34. Learned District Forum accepted the complaint with costs of Rs.2,000/- vide impugned judgment dated 6.12.2006 and directed the appellants to make the payment of Rs.2,00,000/- as compensation to the respondents jointly and severally. District Forum further directed that the amount of compensation shall be payable in equal shares to the respondent and to all the children of the patient but the amount of their share would be got deposited in a nationalized bank in fixed deposits till the age of their majority.
35. Hence the appeal.
DISCUSSION:
36. The submission of the learned counsel for the appellants was that there was no medical negligence on the part of the appellants. Hence it was prayed that the appeal be accepted and the impugned judgment dated 6.12.2006 be set aside. Reliance was placed on the judgment of Hon'ble Supreme Court reported as "Kusum Sharma & Others v. Batra Hospital & Medical Research Centre & Others" 2010 NCJ 449 (SC) as also on the judgment of Hon'ble National Commission dated 20.1.2006 passed in Revision Petition No.2844 and 2845 of 2004 "Madaan Hospital and another vs. Master Muskan". Reliance was also placed on the judgment of this Commission dated 19.4.2011 passed in First Appeal No.1593 of 2006 "Paramjit Kaur v. The Punjab Health System Corporation and another".
37. Record has been perused. Submissions have been considered.
38. The first submission of the learned counsel for the appellants was that the respondent was not the consumer qua the appellants. The appellant hospital is a Government hospital and Dr.Amarbir Singh appellant No.2 was the Chief Medical Officer of the aforesaid hospital while Dr. Anujeet Kaur appellant No.3 was the Assistant Doctor, respondent No.5 was the Anaesthetist and Mrs. Baljit Kaur appellant No.4 was the Staff Nurse. All of them were Government employees in the appellant Hospital provide free medical services.
First Appeal No.418 of 2006. 15
39. This submission has been considered. The law was laid down by the Hon'ble Supreme Court in the judgment reported as "Indian Medical Association v. V.P. Shantha & Ors." III(1995) CPJ 1 (SC). The Hon'ble Supreme Court was pleased to lay down the law in para 43 as under:-
"43. The other part of exclusionary clause relates to services rendered "free of charge". The Medical Practitioners, Government hospitals/nursing homes and private hospitals/nursing homes (hereinafter called "Doctors and hospitals") broadly fall in three categories : -
(i) where services are rendered free of charge to everybody availing of the said services.
(ii) Where charges are required to be paid by everybody availing of the services and
(iii) Where charges are required to be paid by persons availing of services but certain categories of persons who cannot afford to pay are rendered service free of charges.
There is no difficulty in respect of the first two categories. Doctors and hospitals who render service without any charge whatsoever to every person availing of the service would not fall within the ambit of 'service' under Section 2(1)(o) of the Act."
40. After discussing the whole law, the Hon'ble Supreme Court drew the conclusion in Para 55 Sub Para 5 as under : -
" Service rendered free of charge by a Medical Practitioner attached to a hospital/Nursing home or a First Appeal No.418 of 2006. 16 medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be "service" as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position."
41. In Paramjit Kaur's case (supra) this Commission has observed in para 37 as under:-
"37. In the Government Hospital, the medical services are rendered free of costs and whatever amount is charged from the patients, it is the token amount only charged to meet the expenses and not the medical fee as charged by the private hospitals.
42. This judgment, however, is not applicable to the facts of the present case nor the facts of this case are covered by the judgment of the Hon'ble Supreme Court in V.P. Shantha's case (supra) particularly for the reason that the appellants themselves have admitted in para 2 of the written statement (reply on merits) that Rs.350/- were charged from the respondent as major operation fee as fixed by the Punjab Health Systems Corporation for sterilization operation. It means, therefore, that the amount of Rs.350/- which was charged by the appellants from the respondent were not the procedural expenses or the registration charges but these were specifically charged as major operation fee. Therefore it was neither a token amount nor registration charges nor procedural expenses. These were the medical fee charged from the respondent. However small it was but it was the major operation fee. Therefore the respondent and the patient were the consumers qua the appellants.
43. The word 'sterilisation' for which the patient was operated in the appellant hospital by the appellant doctors has been defined in the Medical Dictionary at page 800 as under:-First Appeal No.418 of 2006. 17
"Sterilisation It is the term which refers the complete destruction and living of organisms or any procedure which renders a person unable to reproduce. Elimination of microorganisms is vitally important in preventing the spread of infection. It can be achieved by physical or chemical means such as boiling, steaming or autoclaving, irradiation with ultraviolet rays or using antiseptic or disinfectants. Liquids can also be sterilised by passing them through extremely fine filters which trap the microorganisms."
44. Therefore sterilisation operation also amounts to say that the operation was required for rendering the victim sterile by which she was unable to conceive a child. It means, therefore, that the appellants had charged the amount of Rs.350/- from the respondent for sterilisation operation. If the operation may not have been conducted in the National Family Planning Program but ultimately the purpose was the same which was achieved by the family planning under the National Family Planning Program. The fact remains that the patient and the respondent had paid the consideration for hiring the services of the appellants. Therefore the judgment of this Commission in Paramjit Kaur's case (supra) is not applicable to the facts of the present case.
45. So far as the medical negligence is concerned, the appellants have pleaded in para 3 of the written reply that earlier also the patient had visited the appellant hospital on 12.4.2004, 15.4.2004 and 29.4.2004 as she was suffering from a medical problem. Appellants No.2 and 3 have also pleaded that the patient had come as an outdoor patient on 12.4.2004 at OPD Slip No.3384 for tubectomy (sterilization operation). The patient had also come with her pre-operative investigations. Appellant No.2 had gone through the investigation reports. The patient wanted to know from appellant No.2 if the bilateral tying of the tubes would raise her uterus upwards. On enquiry the patient had further disclosed that First Appeal No.418 of 2006. 18 mass was coming out of the vagina which was causing her a great deal of discomfort and she wanted relief for the said complaint also. The patient was advised to seek gynecological opinion. Thereafter the patient had consulted gynecologist (appellant No.3) on 15.4.2004 vide OPD slip No.3488. Appellant No.3 had gone through the history of the patient. The patient was examined meticulously and it was found that the patient was having 3rd Degree Uterovaginal Proplapse with cystocele with rectocele.
46. It was further pleaded by appellants No.2 and 3 in the written reply that the patient wanted relief from the suffering caused by prolapse which was causing great discomfort to her in day to day activity. The patient was told by appellant No.3 of the surgical measures available in the appellant hospital to relieve her of her discomfort keeping in mind that the patient had completed her family and all her deliveries were conducted at home by a midwife (Dai). The surgery was the definitive and curative treatment for genital prolapse. It may be as it has been proved by the appellants that the respondent had visited the appellant hospital on 12.4.2004 as OPD patient (Ex.R-3) and she had also visited as OPD patient on 15.4.2004 (Ex.R-4).
47. However the other part of the story set-up by appellants No.2 and 3 that the patient had made enquiries if bilateral tying of the tubes would rise her uterus onwards or if she had also disclosed that the mass was coming out of the vagina which was causing her a great deal of discomfort or if she wanted relief for the said complaint also is all oral. Nothing is mentioned in the OPD entries of 12.4.2004 or 15.4.2004 or 29.4.2004. These entries, however, have been made by the appellants in the bed head ticket dated 6.5.2004 which appears to have been forged later on.
48. Moreover the fact remains that the patient had come to the appellant hospital for sterilization operation and she was charged the fee for sterilization operation. She had come to the appellant hospital on 6.5.2004 and she was operated in the appellant hospital by appellants No.2 and 3 for sterilization First Appeal No.418 of 2006. 19 operation. In other words, for family planning so that she may not have any other child as she had already five children.
49. She was operated by appellants No.2 and 3 on 6.5.2004 itself. Her condition had started becoming serious thereafter especially on the next day i.e. on 7.5.2004 in the hospital itself. On the night of 7.5.2004 her condition had become critical. Appellants No.2 and 3 were living away from the appellant hospital. They were called by a Doctor of appellant hospital on 7.5.2004 at 11.00 P.M. After appellants No.2 and 3 reached the appellant hospital they declared the patient dead at 1.30 A.M. on 8.5.2004. This was the version of the respondent.
50. However the appellant hospital and appellants No.2 and 3 had given a different version. Appellants No.2 and 3 have pleaded that on 7.5.2004 in the night the patient had a bout of vomiting. She was attended by Dr. G.S. Dhillon (Doctor on duty) and Dr. Roshan Lal (who happened to be there by chance). Dr. Roshan Lal had given a call to appellant No.2. Appellants No.2 and 3 had their residence in village Rajoke. They reached appellant hospital in no time. It was denied if appellants No.2 and 3 had reached the appellant hospital at 1.30 A.M. Rather they had reached at 11.00 P.M. on 7.5.2004. They gave the emergency treatment. When the patient failed to respond, appellants No.2 and 3 decided to shift the patient to Tertiary Centre, Amritsar and they had left the appellant Hospital at 12.40 A.M. on 8.5.2004 for Tertiary Centre, Amritsar. They stopped on the way for filling the petrol/diesel and the patient suffered Cardio Pulmonary Arrest and the patient died at 1.40 A.M. and the dead body was handed over to the respondent after obtaining his signatures on the bed head ticket i.e. medical report.
51. This version of the appellants is totally false that they had handed over the dead body of his wife, namely, the patient to the respondent after obtaining his signatures on the bed head ticket of the patient. The appellants might have obtained the signatures of the respondent on a paper but the bed head ticket was not prepared by the appellants by that time. The respondent approached the appellants to give him the medical record but they failed to do so on which the First Appeal No.418 of 2006. 20 respondent knocked at the doors of the court and got the court orders from the court of Judicial Magistrate, Patti on 23.6.2004. A copy of the court order dated issued on 27.6.2004 has been proved as Ex.C-4. The appellants in para 6 of the written reply have pleaded that the court order was dated 27.6.2004 while the file was handed over to the respondent on 26.6.2004. This version of the appellants themselves falsified their own version. If the bed head ticket i.e. medical report was ready with the appellants what was the reason that it was given to the respondent more than 2 months after the death of the patient and whey the respondent had to go to the Court of law for obtaining orders of the court for the medical record.
52. The story of the appellants that the appellants had reached the hospital at 11.00 P.M. on the call of Dr. Roshan Lal or that the appellants had given the necessary life saving medicines to the patient or that they had decided on 8.5.2004 at 12.40 A.M. to shift the patient to Tertiary Centre, Amritsar or that they had stopped the vehicle for filling petrol/diesel and at that time the patient had suffered the Cardio Pulmonary Arrest and was declared dead at 1.40 A.M. appears to be totally false and concocted. The appellants have not given the name of the petrol pump from where petrol/diesel was to be filled nor they have given any receipt of the petrol pump owner/Manager from where the petrol/diesel was got filled.
53. Admittedly, the appellants have not even given the vehicle number by which the patient was being shifted from the appellant Hospital to Tertiary Centre at Amritsar nor they have pleaded if the expenses of the vehicle were being charged from the respondent or if it was at the Government expense or if the amount was to be spent by appellants no.2 and 3 on humanitarian grounds.
54. The medical record also appears to be forged and manipulated. This record appears to have been prepared by appellants No.2 and 3 at one time which becomes apparent from the entries made in it. All the entries appear to have been made at one and the same time and that is why there are some cuttings at some places about the dates and time mentioned in the bed head ticket. 10.5.2004 is First Appeal No.418 of 2006. 21 also mentioned as the date below 7.5.2004 which also appears to have been overwritten from 9.5.2004. If this record had been prepared at the proper time and the entries were made at the time shown in it then there would not have been any mistake nor the ink or the writing would have been the same nor 10.5.2004 would have been mentioned when the patient had actually died on 8.5.2004 at 1.30 A.M. or 1.40 A.M.
55. It was pleaded in para 5 of the written reply by appellants No.2 and 3 that Dr. G.S. Dhillon was the doctor on duty and Dr. Roshan Lal was present just by chance and they had received a telephonic message from Dr. Roshan Lal at 11.00 P.M. on 7.5.2004. They reached within no time. In the bed head ticket produced by the respondent, the presence of Dr. G.S. Dhillon is nowhere mentioned nor it is mentioned if Dr. G.S. Dhillon was Medical Officer on duty. On the other hand, it is mentioned that Dr. Roshan Lal, Medical Officer was on duty whereas in the written statement it is mentioned that Dr. Roshan Lal happened to be there by chance.
56. This clearly reveals, therefore, that the medical record has been forged by the appellants. The delay in delivery of the medical record and that too in the month of June i.e. on 26.6.2004 after the court orders on 23.6.2004 which was released by the court on 27.6.2004 clearly reveals that so much time was spent by the appellants in delivering the record to the respondent which only leads to the presumption that the medical record was prepared later on.
57. It also deserves to be noticed that the appellants have produced the OPD entries about the visit of the patient prior to 6.5.2004 but they have not produced the medical record of 6.5.2004 onwards till the death of the patient. If this record had been genuine, there could not have been any problem for the appellants to produce the medical treatment record of the patient in the District Forum which has not been produced.
58. In the written statement, the appellants have pleaded that the patient was admitted for sterilisation operation and a sum of Rs.350/- was charged from the First Appeal No.418 of 2006. 22 respondent which was the rate fixed by the Punjab Health Systems Corporation. In the bed head ticket/medical record produced by the appellant the final diagnosis of the patient is mentioned as D.U.B. and prolapse with cystocele and rectocele. It means, therefore, that the bed head ticket was prepared by the appellants in order to justify their story that the patient was suffering from 3rd Degree Uterovaginal Proplapse with cystocele with rectocele.
59. If the disease of the patient was so serious and appellants who were the treating and operating doctors were residing at a distance of 15 kilometers from the appellant hospital, then it was the duty of the appellants to have advised the patient and the respondent to get the patient admitted in some other specialized hospital where medical service was available all the time round the clock and for all the twenty four hours. After leaving the patient alone in the appellant hospital the treating doctors went away and they reached when irreparable damage was already done to the patient.
60. This also amounts to medical negligence on the part of the appellants.
61. If it was a small operation like sterilisation or if it was the operation of 3rd Degree Uterovaginal Proplapse with cystocele with rectocele and was simple, then how the condition of the patient became so critical in one day is known only to the appellants, which they have failed to explain. How the patient who was allegedly comfortable till 4.00 P.M. on 7.5.2004 became so serious that the appellants had to be called at midnight when they were sleeping comfortably. Therefore onus was on the appellants to prove the intervening circumstances which proved fatal to the patient and once they have failed to explain the same, it clearly proves medical negligence on the part of the appellants when they had treated the patient on 6.5.2004.
62. In the bed head ticket, the appellants have pleaded that the patient had excessive prolonged bleeding for 5 months. If it had been so, the respondent was not a mad man nor the patient was a mad woman that they could have remained silent for such a long time or would have omitted taking medical treatment for First Appeal No.418 of 2006. 23 such a long time. It was pleaded by the respondent in para 8 of the complaint that on 6.5.2004 the Hb of the patient was 10.2 grams which means that the patient was not anemic. This fact was admitted by the appellants in the written reply. This also clearly brings out the falsehood in the version of the appellants.
63. The appellants have also mentioned in the history of the patient that the patient had the complaint that something was coming out of her vagina for the last 4/5 years. This version is also totally unbelievable. If it had been so, the respondent would have taken the patient for medical treatment and would not have waited for 4 and 5 years just to bring her to the hospital of the appellants on 6.5.2004 so that the appellants are given an opportunity to commit medical negligence and she dies.
64. In such circumstances, when the patient is operated on 6.7.2004 and her condition becomes critical on the next day in the hospital itself, it was for the appellants to explain what intervened which made her condition critical and which led to her death.
65. The law has also been settled by the Hon'ble Supreme Court that the initial onus to prove medical negligence is on the complainant but once the complainant had discharged the onus by proving prima facie case against the doctor/hospital, then it is for the doctor/hospital to explain the circumstances leading to the death of the patient. It was held by the Hon'ble Supreme Court in the judgment reported as "Smt.Savita Garg v. The Director, National Heart Institute, IV (2004) CPJ 40 (SC)" in the concluding para 10 as under : -
"In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can First Appeal No.418 of 2006. 24 discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the institution/hospital than that of the claimant."
66. This judgment was followed by the Hon'ble National Commission in the judgment reported as "D.Rama Rajyam (Dr.) v. P.K.Vasudeva Rao and others, III (2007) CPJ 295 (NC)".
67. The submission of the learned counsel for the appellants was that onus lies on the respondent to prove the medical negligence on the part of the appellants. It was also submitted that the respondent is to lead some expert evidence to prove that the appellants have committed medical negligence. In the present case, the respondent has not examined any doctor to prove if the appellants had committed medical negligence.
68. This submission has been considered.
69. There is no doubt about the legal proposition as discussed above that the initial onus lies on the complainant to prove the medical negligence on the part of the doctor but once the prima facie case is made out then it is for the doctor to explain the circumstances which led to the death of the patient. It was also held by the Hon'ble National Commission in the judgment reported as "Ashok Kumar Upadhyaya and another v. Dr.D.N.Mishra (Professor) and others, I (2011) CPJ 194 (NC)" that it was not essential for the complainant to examine expert evidence if the medical negligence on the part of the respondents is proved otherwise. It was held as under : -
"40. Respondent Counsel has argued that, in the absence of expert medical evidence, it cannot be established that it was a case of medical negligence. In our view, this argument needs to be rejected. The law First Appeal No.418 of 2006. 25 on this subject is very clear. The question whether expert medical evidence is necessary or not, has been directly addressed by Hon'ble Supreme Court of India in V.Krishan Rao v. Nikhil Super Speciality Hospital, in the judgment delivered on 8.3.2010. The Court has held that -
'In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event, the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such evidence would be illusory."
71. Learned counsel for the appellants has relied upon the judgment of the Hon'ble Supreme Court in Kusum Sharma's case (supra). This judgment does not apply to the facts of this case as the facts in Kusum Sharma's case were different. Each case was to be decided on the facts of each case.
72. In the present case if the operation was simple then it was for the doctors to explain how the condition of the patient had become so critical as to prove fatal. First Appeal No.418 of 2006. 26 If the operation was of serious nature, then it was the duty of the appellants to refer her to some more specialized hospital which had better infrastructure.
73. Moreover the appellants have intentionally failed to give the medical record and the respondent had to obtain the court orders for seeking the same. Moreover the record appears to have been forged. Therefore the judgment in Kusum Sharma's case (supra) is not applicable to the facts of the present case.
74. In view of the discussion held above, medical negligence on the part of appellants No.1 to 3 is clearly proved.
75. However no medical negligence is alleged specifically against appellants No.4 and 5 nor there is any evidence of any medical negligence on the part of appellants No.4 and 5. Therefore this appeal is accepted qua appellants No.4 and 5 and the impugned order dated 6.12.2005 is set aside qua appellants No.4 and 5.
76. However appeal qua appellants no.1 to 3 is dismissed with costs of Rs.20,000/-.
77. The respondent deserved more amount of compensation but since the respondent has not filed appeal, therefore, the amount of compensation cannot be enhanced.
78. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 20.3.2006. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
79. Remaining amount shall be paid by the appellants to the respondent as directed by the learned District Forum.
80. The arguments in this case were heard on 23.1.2012 and the order was reserved. Now, the order be communicated to the parties.
First Appeal No.418 of 2006. 27
81. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
January 31 , 2012 (BALDEV SINGH SEKHON)
Bansal MEMBER