State Consumer Disputes Redressal Commission
Tripta Hospital vs Anish & Another on 31 July, 2024
First Appeal No. Tripta Hospital 31.07.2024
59 of 2022 Versus
Sh. Anish and another
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
Date of Admission: 19.04.2022
Date of Final Hearing: 12.07.2024
Date of Pronouncement: 31.07.2024
FIRST APPEAL NO. 59 / 2022
Tripta Hospital
Mahaveer Enclave, Near Railway Station
Roorkee, District Haridwar through Dr. Amit Singh
(Through: Sh. Aman Rab, Advocate)
...... Appellant
Versus
1. Sh. Anish S/o Sh. Akhtar Ali
R/o 858, Azad Nagar, Roorkee
District Haridwar
(Through: Sh. Shree Gopal Narsan, Advocate)
2. ICICI Lombard General Insurance Company Limited
having its address at ICICI Lombard House
414, Veer Savarkar Marg, Near Siddhivinayak Temple
Prabhadevi, Mumbai - 400025
(Through: Smt. Anjali Gusain, Advocate)
...... Respondents
Coram:
Ms. Kumkum Rani, President
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, President):
This appeal has been directed against the impugned judgment and order dated 28.02.2022 passed by learned District Consumer Disputes Redressal Commission, Haridwar (hereinafter to be referred as "The District Commission") in consumer complaint No. 219 of 2020, styled as Sh. Anish Vs. Tripta Hospital and another, wherein and whereby the consumer complaint was allowed, directing the appellant 1 First Appeal No. Tripta Hospital 31.07.2024 59 of 2022 Versus Sh. Anish and another / opposite party No. 1 to pay an amount of Rs. 27,000/- (the amount of treatment charges obtained) to respondent No. 1 / complainant together with interest @6% p.a. from the date of filing of the consumer complaint, i.e., 25.09.2020 till actual payment, besides to pay Rs. 2,00,000/- towards physical & mental agony and Rs. 20,000/-
towards counsel fee & litigation charges. It was also directed that the appellant and respondent No. 2 (opposite parties before the District Commission) shall pay special compensation of Rs. 25,00,000/- to respondent No. 1 / complainant. It was further directed that if the appellant wants, it may recover the amount from respondent No. 2.
2. The facts giving rise to the present appeal, in brief, are, as such that the respondent No. 1 / complainant - Sh. Anish had visited the appellant - hospital on 20.04.2020 for treatment of stone in his kidney, as he had about 22.2 mm calculus / stone in his kidney. The complainant was explained about his disease and plan of care. The complainant was advised to get the stone removed through PCNL (Percutaneous Nephrolithotomy) (nwjchu }kjk) and he paid an amount of Rs. 20,000/- on 20.04.2020. On 20.04.2020 itself, the process of removal of stone through the aforesaid medical procedure was started and certain medicines were prescribed to the complainant. As per the advice of the doctor, the complainant consumed the medicines. The second time process; third time process and fourth time process, were carried out on 04.05.2020; 15.05.2020 and 29.05.2020 respectively and the procedure for removal of stone was completed and the complainant was told that there is no stone in his kidney. The complainant believed on the version of the doctor, but after some time, the complainant felt pain in his kidney, whereupon he again contacted the treating doctor. The complainant got his ultrasound done by Dr. Vipin Gupta of Dr. S.L. 2 First Appeal No. Tripta Hospital 31.07.2024 59 of 2022 Versus Sh. Anish and another Gupta Ultrasound Clinic, Pahari Bazar, Roorkee on 19.08.2020, which revealed presence of two stones in left kidney of the complainant measuring 8 mm and 14.9 mm respectively. The complainant once again contacted the treating doctor / surgeon and told that inspite of conducting operation through PCNL, the stone has not been removed because of wrong operation conducted by the doctor, but the treating doctor denied the same and told the complainant on 02.09.2020 to get his x-ray done. The complainant again got his ultrasound done by Dr. Vipin Gupta on 03.09.2020, which again revealed presence of two stones in his kidney, which clearly indicates medical negligence on the part of the treating doctor. The complainant has spent an amount of Rs. 27,000/- in the entire process, but on account of medical negligence and deficiency in service on the part of the appellant, he is still facing the medical problem. With the aforesaid allegations, consumer complaint was submitted before the District Commission.
3. The appellant in its written statement filed before the District Commission, has contended that the averments made in the consumer complaint are denied, except those which are categorically and specifically admitted in the written statement. It was pleaded that the patient / complainant was not given option of stone removal by PCNL. The patient was offered the treatment option of ESWL (Extracorporeal shock wave lithotripsy) along with charges. It is incorrect that the doctor started treatment with PCNL, but the fact is that the treatment was started with ESWL and the complainant paid Rs. 20,000/- on 20.04.2020 for four sessions stated in para 4 of the consumer complaint. After the 4th session, the patient was advised x-ray examination, as is also documented in the consent signed by the patient, but the complainant refused to get the x-ray done and instead, he brought USG 3 First Appeal No. Tripta Hospital 31.07.2024 59 of 2022 Versus Sh. Anish and another report dated 19.08.2020, which mentioned left kidney stones of 14.9 mm & 8 mm size. It was also pleaded that the complainant alleged that the USG report dated 19.08.2020 showed kidney stones of 14.9 mm & 8 mm size and USG report dated 03.09.2020 showed kidney stones of 18 mm & 8 mm size. This shows that stone size increased by 3.1 mm in just 14 days', which is not acceptable. However, even if the size of kidney stones indicated in the above said two USG reports is considered to be true, it indicates that the size of the stones reduced from the initial size of 22.2 mm. Thus, it is clear that the ESWL done by the appellant was successful and reduce the size of stones. The complainant himself was negligent and responsible for unsatisfactory results, as he discontinued the treatment before completion, as offered & explained in the consent form signed by the patient. There was no negligence or deficiency in service on the part of the appellant. The complainant wrongly and maliciously alleged a different procedure performed on him in order to create confusion and mislead the District Commission. The treatment of kidney stones by ESWL is as per the accepted medical standards and there was no negligence or deficiency in service on the part of the appellant. The complainant has not submitted any expert medical opinion or any proof whatsoever. No cause of action ever accrued in favour of the complainant. Hence, the complainant is not entitled to any amount and the consumer complaint is liable to be dismissed.
4. No written statement was filed before the District Commission by respondent No. 2 and vide order dated 24.06.2021, the opportunity of filing the written statement by respondent No. 2 was closed.
4First Appeal No. Tripta Hospital 31.07.2024 59 of 2022 Versus Sh. Anish and another
5. Learned District Commission, after hearing the appellant and respondent No. 1 and after taking into consideration the material available on record, passed the impugned judgment and order on dated 28.02.2022, thereby allowing the consumer complaint in the above terms. Feeling aggrieved from the impugned judgment and order, the present appeal has been submitted on behalf of the appellant.
6. We have heard learned counsel for the parties and perused the record. It is an admitted fact that the complainant had about 22.2 mm stone in his kidney and he visited the appellant - hospital on 20.04.2020 for the removal of his kidney stone. It is also proved from the medical papers available on record as well as the pleadings of the parties that the complainant was not given option of stone removal by PCNL. The documentary evidence on record has indicated that the complainant was offered the treatment option of ESWL along with charges. It is also admitted that the complainant had paid an amount of Rs. 20,000/- to the appellant towards his treatment charges. It is further admitted that before the start of treatment by ESWL, the complainant had one stone in his kidney measuring 22.2 mm in size. On record, the appellant has submitted documentary evidence (Paper Nos. 45 to 53) pertaining to the treatment of the complainant. Likewise, the respondent No. 1 / complainant has also submitted documentary evidence regarding his treatment (Paper Nos. 68 to 72). Paper No. 68 is the copy of medical prescription dated 20.04.2020 issued by the appellant, which shows that the patient was advised treatment by ESWL, i.e., process of stone removal from kidney without any operation. Thus, the documentary evidence filed on behalf of the complainant himself has clearly proved that he was advised to take treatment by ESWL in four sittings, i.e., on 04.05.2020; 15.05.2020; 29.05.2020 and 02.09.2020 respectively.
5First Appeal No. Tripta Hospital 31.07.2024 59 of 2022 Versus Sh. Anish and another
7. The appellant has submitted the copy of handwritten consent for Lithotripsy (ESWL) given by the complainant (Paper No. 46). We have perused the said consent, which bears the signatures of the complainant. In the said consent, it is clearly mentioned that after in a gap of 10 days', four sittings will be given and if there is stone after 4th sitting, then after an interval of three months', four sittings will again be given. It is also stated that if the stone is not removed even after eight sittings, then further Lithotripsy will not be given and the complainant will get the stone removed through operation in other hospital. Thus, from the consent given by the complainant, it is evident that repercussions of the treatment were duly explained to the complainant before start of the process of removing the stone from the complainant's kidney. From the documentary evidence available on record, it is also evident that after the 4th session / process, the complainant did not turn up for further four sessions for removing the stone from his kidney. It is proved on record that before the start of the treatment through ESWL, the complainant had one stone measuring 22.2 mm in his kidney, but after the 4th session of ESWL, there was breakage of stone into two parts (stones) measuring 14.9 mm & 8 mm in size. Thus, it is crystal clear that the treatment had worked till 4th session and there was breakage in the original stone, regarding which the complainant contacted the treating doctor. Therefore, it can not be said that the treating doctor never started treatment by ESWL for removal of kidney stone of the complainant. The complainant has not submitted any expert evidence to show that the treatment provided by the treating doctor through ESWL, was wrong and incorrect or that the treating doctor was negligent in providing the treatment through ESWL process. Apart from above, consent was given by the complainant before start of 6 First Appeal No. Tripta Hospital 31.07.2024 59 of 2022 Versus Sh. Anish and another Lithotripsy (ESWL), which was duly signed by the complainant. In such circumstances, the treating doctor can not be held responsible in any way.
8. Learned counsel for the appellant has cited the following case laws:
(i) Chandigarh Nursing Home and another Vs. Sukhdeep Kaur reported in 2022 SCC OnLine SC 1193.
(ii) Martin F. D'Souza Vs. Mohd. Ishfaq reported in (2009) 3 Supreme Court Cases 1.
(iii) Dr. Harish Kumar Khurana Vs. Joginder Singh and others reported in (2021) 10 Supreme Court Cases 291.
9. In the case of Chandigarh Nursing Home and another (supra), Hon'ble Apex Court has held in paragraph No. 15 as under:
"15. Even otherwise, in absence of any cogent reasons and/or material, the National Commission was not justified in enhancing the amount of compensation to Rs. 10 lakhs. While enhancing the amount of compensation to Rs. 10 lakhs, the National Commission has just referred to few decisions of this Court in paragraph 14 and thereafter has straightaway enhanced the amount of compensation. It is to be noted that the amount of compensation varies from person to person, looking to the damages and/or disability 7 First Appeal No. Tripta Hospital 31.07.2024 59 of 2022 Versus Sh. Anish and another suffered/sustained. Merely because in some cases, the amount of compensation has been enhanced, in other cases, the amount of compensation cannot be enhanced.
While enhancing the amount of compensation to Rs. 10 lakhs as such, the learned National Commission has not at all discussed the disability suffered by the complainant.
Therefore, also, the impugned judgment and order passed by the National Commission enhancing the amount of compensation to Rs. 10 lakhs is unsustainable."
10. In the case of Martin F. D'Souza (supra), Hon'ble Apex Court has held in paragraph No. 106 as under:
"106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court, then before issuing notice to the doctor or hospital against whom the complaint was made, the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence, should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts 8 First Appeal No. Tripta Hospital 31.07.2024 59 of 2022 Versus Sh. Anish and another clearly come within the parameters laid down in Jacob Mathew case¹, otherwise the policemen will themselves have to face legal action."
11. In the case of Dr. Harish Kumar Khurana (supra), Hon'ble Apex Court has held as under:
"While it is necessary that the hospital and doctors are required to exercise sufficient care in treating the patient in all circumstances, in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence, there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception."
12. The aforesaid cited case laws are fully applicable to the case in hand. In the instant case, there is no appropriate medical evidence tendered on behalf of the complainant to prove that the treating doctor was negligent in conducting the treatment by ESWL. It is well established that on the basis of perception, no medical practitioner can be held liable.
13. For the reasons aforesaid, we are of the view that the impugned judgment and order has been passed by the District Commission without application of mind. We are also of the considered opinion that the complainant has failed to prove any medical negligence or deficiency in service on the part of the treating doctor. Hence, the 9 First Appeal No. Tripta Hospital 31.07.2024 59 of 2022 Versus Sh. Anish and another impugned judgment and order passed by the District Commission is totally unjustified and the District Commission has exercised the jurisdiction not vested in it by law and has acted with material illegality and infirmity, while passing the impugned judgment and order. Thus, we are inclined to interfere with the finding recorded by the District Commission. Therefore, the appeal is liable to be allowed.
14. Appeal is allowed. Impugned judgment and order dated 28.02.2022 passed by the District Commission is set aside and consumer complaint No. 219 of 2020 is hereby dismissed. No order as to costs of the appeal. The amount deposited by the appellant with this Commission, be released in its favour.
15. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. A copy of this Order be sent to the concerned District Commission for record and necessary information.
16. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) President (Mr. B.S. Manral) Member Pronounced on: 31.07.2024 10