National Consumer Disputes Redressal
Dr. K.N.S. Dhillon vs Surjit Kumar Through Lrs. & Ors. on 23 January, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 354 OF 2011 (Against the Order dated 13/10/2010 in Appeal No. 1286/2004 of the State Commission Punjab) 1. DR. K.N.S. DHILLON Amar Hospital, Near Railway Bridge Ferozepur Punjab ...........Petitioner(s) Versus 1. SURJIT KUMAR THROUGH LRs. & ORS. R/o. Basti Shekhar Wali, Ferozepur City Ferozepur Punjab 2. DR. MANMOHAN SINGH DHILLON Dhillon Hospital, Opposite Markfed Godown, Malwal Road, Near Bus Stand Ferozepur Punjab 3. THE NEW INDIA ASSURANCE COMPANY LIMITED Through its Branch Manager, Malwal Road, Ferozepur City Ferozepur Punjab ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr.Vaibhav Narang, proxy counsel for
Mr. K.G. Sharma, Advocate For the Respondent : For the Respondent No.1: Mr. Nakul Sharma, Advocate
For the Respondent No.2: nemo (served)
For the Respondent No.3: nemo (served)
Dated : 23 Jan 2020 ORDER
Revision petition No.122 of 2011 has been filed by the petitioner Dr. Manmohan Singh Dhillon and Revision Petition No.354 of 2011 has been filed by the petitioner Dr. K.N.S.Dhillon, against the order dated 13.10.2010 of the State Consumer Disputes Redressal Commission, Punjab, (in short 'the State Commission') passed in First Appeal No.1286 of 2004.
2. Brief facts of the case are that the respondent No.1/complainant (since deceased and now represented by the LRs.) got his operation done in Amar Hospital, owned by Dr. K.N.S. Dhillon. The patient remained admitted in Amar Hospital from 11.06.2002 to 22.06.2002 and the operation was performed and plate was fixed. On 11.12.2002 x-ray was done again and it was found that the deceased was not completely cured. Again in October, 2003, the x-ray was done and the pain also persisted. By that time the doctor, who had performed the operation had opened his own clinic and he removed the plate. There was a shortening of about 2 inches in the left leg. A complaint was filed before the District Consumer Disputes Redressal Forum, Ferozepur, (in short 'the District Forum') and the District Forum vide its order dated 17.09.2004 allowed the complaint as under:-
"40 In view of what has been discussed above, this complaint is dismissed against opposite party No.1 without any order as to costs and is accepted against opposite party No.2 with costs of Rs.2,000/- and is directed to pay a sum of Rs.75,000/- to the complainant, which he approximately spent on his treatment, which turned to be futile due to the deficiency in service on his part. He is also directed to pay a sum of Rs.25,000/- to the complainant as compensation for his mental harassment as his treatment has lingered on as a result of deficiency in service on the part of opposite party No.2. This order is directed to be complied with within a period of thirty days from the date of receipt of its copy. Copies of this order be communicated to the parties concerned free of costs."
3. Aggrieved with the order of the District Forum, the petitioner in RP No.122 of 2011, who was opposite party No.2 in the original complaint filed an appeal before the State Commission being FA No.1286 of 2004. The State Commission vide its order dated 13.10.2010 passed the following order:-
"Keeping in view the discussion held above, we are satisfied that the appellant and respondent No.2 had committed medical negligence while operating the respondent on 12.6.2002 in the hospital of respondent No.2. Therefore, the compensation awarded by the learned District Forum in the impugned judgment dated 17.9.2004 is upheld. However it is payable not by the appellant alone but jointly and severally by the appellant and respondent No.2.
52. This appeal is, therefore, disposed of with costs of Rs.10,000/- with the only modification that respondent No.2 would also be liable with the appellant jointly and severally. Out of the amount of costs, Rs.5,000/- will go to the New India Assurance Company Ltd. Respondent No.3 and Rs.5,000/- will be payable to respondent No.1.
53. The costs of Rs.2,000/- awarded by the learned District Form are also upheld. The impugned judgment dated 17.9.2004 is accordingly modified in the terms stated above.
54. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 18.10.2004. He had also deposited a sum of Rs.25,000/- with this Commission under the orders dated 25.1.2005. The amount of Rs.50,000/- along with interest accrued thereon, if any, be remitted by the registry to Surjit Kumar 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 appellant.
55. Remaining amount, if any, shall be paid by the appellant to Surjit Kumar respondent. Respondent No.2 shall also pay the amount of his share to Surjit Kumar respondent immediately."
4. Hence two revision petitions.
5. These revision petitions were listed before the Circuit Bench at Chandigarh for the convenience of the parties on 20.1.2020. The notice has been served to all the parties and all parties were aware about the listing of these revision petitions in Chandigarh. Learned proxy counsel appeared on behalf of the main counsel for the petitioners and stated that the petitioners have already given the written submissions, which may be looked into for their arguments. Learned counsel for the respondent/complainant was present and was heard.
6. I have also seen the written arguments filed by the petitioner. It has been mentioned in RP No.122 of 2011 that the State Commission erred in observing that since petitioner operated the respondent no.1/complainant along with respondent no.2, therefore, medical negligence if proved would be on the part of the petitioner and respondent no.2. It is submitted that merely on the fact that petitioner was associated with the respondent no.2 for performing the operation of the respondent no.1, it cannot be presumed that petitioner has also committed medical negligence while operating the respondent no.1/complainant.
7. It has been mentioned that the State Commission failed to appreciate that respondent no.1/complainant withheld the best evidence which was available with him in the form of pre-operative x-ray and post operative x-ray from which it could have been clear that the operation was successful and both the ends of fracture were in position. It is submitted that preoperative and post operative x-rays were given to the respondent no.1/complainant along with discharge certificate with the advice of follow-up treatment at the time of the discharge. The State Commission failed to observe that said x-rays are in the possession of the respondent no.1/complainant and the same was withheld by him for the reasons best known to him. Further it is submitted that this fact remained uncontroverted by the respondent no.1/complainant but District Forum and the State Commission wrongly held that the x-rays were retained by the petitioner.
8. It is stated in the written arguments that the impugned order is liable to be set aside as State Commission wrongly held both the petitioner and the respondent no.2 for committing medical negligence. It is submitted that petitioner performed the operation with utmost skill and due care as expected from an experienced medical practitioner.
9. It is further mentioned that the State Commission as well as the District Forum erred in appreciating the report of the Board of Doctors and misinterpreted the same. The said report merely observed that mal-alignment could be the cause of shortening of the leg of the respondent no.1/complainant, however, same cannot be interpreted that board of doctors unambiguously held that the shortening of the leg in the case in hand was certainly due to the mal-alignment of fracture fragments. It was further submitted that there is nothing in the report dated 31.8.2004 which suggests that there was any medical negligence on the part of the petitioner.
10. In revision petition No.354 of 2011, it has been mentioned that the State Commission failed to appreciate that it was categorically pleaded by the petitioner that the pre-operative and post-operative x-rays were given to the respondent no.1/the complainant along with discharge certificate with the advice of follow up.
11. It was further stated that the State Commission failed to appreciate that even a bare perusal of the Board constituted by the District Forum, it is clear that there was no negligence on behalf of the petitioner inspite of that the State Commission has upheld the order of the District Forum with modifications making the petitioner liable jointly and severally.
12. It was further argued that the State Commission failed to appreciate that it is settled law that no liability can be fastened in a case of medical negligence unless and until there is an expert evidence. In the case in hand, there is no expert evidence against the petitioner wherein the petitioner has been shown to be negligent. Therefore, unless and until there is any evidence on the record holding the petitioner as negligent, the complaint and impugned order deserves dismissal.
13. Learned counsel for the respondent/complainant stated that the District Forum had referred the matter for the expert opinion to the Board of Orthopaedic Surgeons and this Board gave its report on 31.8.2004. Learned counsel stated that the Medical Board has confirmed the shortening of about 2 inches in the left leg. The reason is given that the same may be due to mal-alignment of the fracture fragments. Thus, it is clear that during operation fracture fragments were not rightly aligned. Thus, this was a clear negligence on the part of the operating doctor.
14. Learned counsel for the respondent/complainant stated that Dr. Manmohan Singh Dhillon was doctor in the Government Hospital, however, he performed operation in the private hospital namely, Amar hospital. Thus, he was also guilty of violating the Government Rules.
15. The pre and post operative x-ray were not provided by the Amar hospital owned by Dr. K.N.S. Dhillon and therefore, the State Commission has treated the hospital also deficient in providing the service. In fact, there is a clear finding of the State Commission that no proper record was supplied by the Amar hospital, which was a primary duty of the hospital to maintain the proper records of the patient treated in the hospital. Even the bed ticket was not provided to the Medical Board. Thus, the State Commission has rightly found joint liability on both the doctors, one being the operating doctor and the other being the owner of the Amar hospital. The life of the complainant was totally compromised due to shortening of left leg by two inches and ultimately the complainant died and the present matter is being contested by the LRs. Learned counsel further stated that the LRs. of the complainant are very poor and due to this fact they could not file any appeal for enhancement of the compensation.
16. I have carefully considered the arguments advanced by the learned counsel for the complainant as well as the points raised in the revision petitions. One of the main objections in the revision petitions is that there is no expert report to show that the operation was wrongly performed and the fracture fragments were mal-aligned in the operation. Prima facie this objection is not sustainable as the report of Medical Board of Orthopaedic Surgeons is on record and it clearly states that there was mal-alignment in the fracture fragments. Clearly, this has led to shortening of the left leg by two inches and the same has been confirmed by the Medical Board. As the Medical Board constituted of Orthopaedic Surgeons, no better opinion can be obtained than from this Board. It is not only the shortening of the left leg, but the patient also suffered for about more than one year with severe pain. Thus, clearly, medical negligence on the part of the operating Dr. Manmohan Singh Dhillon, is proved.
17. Coming to the deficiency on the part of Amar Hospital, owned by Dr. K.N.S. Dhillon, it is clear that the record about the treatment and operation of the patient was not submitted before the Medical Board, even pre and post operation x-rays were not submitted before the Medical Board. It has been alleged by the petitioner that the x-rays were given to the complainant along with discharge, however, the State Commission has given clear finding that there is no proof that these x-rays were handed over to the complainant. As the complainant suffered from pain and filed a consumer complaint, it is quite unlikely that he will not place these records before the Medical Board if he had the same. Logically also, it is the discharge summary, which incorporates all the examinations and the treatment given but the test reports done by the hospital are generally kept with the hospital record. Moreover, Hon'ble Supreme Court in Smt. Savita Garg Vs. The Director, National heart Institute, IV (2004) CPJ 40 (SC) held the following:-
"Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities."
18. Thus, relying on the above observation of the Hon'ble Supreme Court as well as the fact that the medical record including important pre and post operation ex-rays were not provided by the petitioner to the Medical Board, the deficiency on the part of the hospital and consequently on the petitioner is also proved.
19. Based on the above discussion, I find that the State Commission has rightly decided medical negligence against both the petitioners herein. Accordingly, I do not find illegality, material irregularity or jurisdictional error in the order dated 13.10.2010 of the State Commission which calls for any interference from this Commission. Consequently, the Revision Petition Nos.122 & 354 of 2011 are dismissed.
...................... PREM NARAIN PRESIDING MEMBER