State Consumer Disputes Redressal Commission
Amar Kashyap vs Dr. Shrikant Giri on 5 June, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/932
Instituted on : 19.01.2018
Amar Kashyap, S/o hri Rambhajan Kashyap,
Aged about 45 years,
R/o : Bahtarai Road, In front of Shikari Baba Mandir,
Tahsil and District Bilaspur (C.G.) ...... Appellant (Complainant)
Vs.
Dr. Shrikant Giri, S/o Shri Kumar Goswami,
Aged about 41 years,
R/o : Director / Owner Shishu Bhawan Hospital,
Idgaah Chowk, Bilaspur, Police Station Civil Line,
Bilaspur, District Bilaspur (C.G.)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Pawan Shrivastava, Advocate for the appellant (complainant).
Shri D. Dutta and Shri G.V.K. Rao, Advocates for the respondent (O.P.).
ORDER
DATED : 05/JUNE/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 14.11.2017, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum") in Complaint Case No.CC/355/2015. By the impugned order, learned District Forum, has dismissed the complaint of the complainant.
2. Briefly stated the facts of the complaint of the complainant are that the daughter of the complainant namely Ku. Rani aged about 8 years was got admitted in O.P. Hospital on 30.11.2014. At that time she had sustained 28% burn injuries. She was got admitted in the private hospital of the O.P. because the O.P. had assured the complainant that his daughter will become alright at the earliest. There was no separate burn unit in the O.P. Hospital. The // 2 // daughter of the complainant was kept in general room and proper treatment was not given due to which day to day her condition was deteriorated . The skin was taken out from all parts of her body, due to Septicemia, she died on 30.01.2015. The Police prepared Panchanama in which cut injury was found behind the abdomen of the deceased Rani Kashyap. The O.P. negligently treated the daughter of the complainant. The O.P. fraudulently took Rs.8,00,000/- from the complainant regarding giving proper treatment. The daughter of complainant sustained 28% burn injuries in the external part of her body and at the time of admission in the hospital, she was completely healthy and she went to the hospital as pillion rider in the bike of her father. Due to negligence and for want of proper treatment from the O.P., the daughter of the complainant had died. The O.P. did provide the documents to the complainant relating to treatment of her daughter. At the time of admission, the daughter of the complainant was kept in Room No.204 and thereafter she was kept in Room No.106, which is a general room. A sum of Rs.8,000/- was taken on 30.11.2014 in respect of above room, on 01.12.2014 a sum of Rs.3,000/- was taken thereafter on 03.12.2014 Ku. Rani was shifted to room No.106 and a sum of Rs.10,000/- was taken and thereafter regularly amount was taken from the complainant. Proper burn unit was not available in the hospital of O.P. No.1 and due to negligence of the O.P. in treatment of Ku. Rani, the condition of Ku. Rani was deteriorating day to day. In the post mortem report it is mentioned that Ku. Rani suffered bed sore and he was having infactor ulcer and the cause of the death is mentioned as Septicemia. For want of proper treatment, the daughter of the complainant died on 29.01.2015. The O.P. is a doctor and in Shishu Bhawan Hospital treatment was given to the daughter of the complainant, but // 3 // he committed unfair trade practice. The daughter of the complainant was got admitted in the hospital of O.P. from 30.11.2014 to 29.01.2015, but the O.P. did not provide the treatment papers to the complainant, which shows that the O.P. wrongly treated his daughter and wrong medicine was given to her. Hence the complainant has filed the instant complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
3. The O.P. has filed his written statement and averred that after sustaining burn injuries by his daughter, the complainant himself brought her from C.I.M.S. Medical College, Bilaspur and got admitted her in the hospital of O.P. for treatment. The O.P. did not give any assurance to the complainant that her daughter will become alright at the earliest. The patient will become alright on some factors i.e. nature of disease, his treatment and effect of medicine in the body of the patient. The O.P. did not demand a sum of Rs.8,00,000/- from the complainant and he did not pay the same to the O.P. If any fees is obtained by the O.P. then the receipt is issued to the patient for the same. Proper treatment was given to the daughter f the complainant in the hospital of O.P. and during the course of her treatment, best effort was made to provide proper treatment to her. The O.P. did not commit any negligence regarding the treatment of the daughter of the complainant and the O.P. did not give any treatment to the daughter of the complainant, which is contrary to norms/procedure of the medical science. Earlier the deceased was got admitted in C.I.M.S. Bilaspur and according to the note mentioned in the blood report dated 29.11.2014, the haemoglobin of the complainant was 16.2 gms and T.L.C. & D.L.C. was very low on P.S. In the report it is mentioned that the // 4 // quantity of the urea is increased i.e. 65 (Normal Ranges 13-45) which make clear the adverse affect of the blood infection in the kidney. At the time when the complainant brought her daughter in the hospital of O.P. from CIMS , she was not completely healthy. There is arrangement / unit in the hospital of the O.P. for treatment of the burning. The O. P. is properly issuing the receipt for the amount deposited by the patients. In the hospital of O.P. team of expert doctors are available for treatment of the disease of the children. They are treating the children according to their qualification. If necessary, the O.P. also obtains services of other expert doctors from time to time and as per requirements. Accordingly, as per consent of the complainant, the service of the expert doctors were taken in respect of treatment of the daughter of the complainant. The O.P. gave proper treatment to the daughter of the complainant, but due to burning, the daughter of the complainant was having complication and there was no right effect of the medicines in her body and due to Septicemia, she died. After death of his daughter, the complainant made complaint against the O.P. and his hospital before Police and others. On the basis of above complaint, Officer Incharge, Police Station, Sarkanda got investigated the matter from the team of doctors of office of Chief Medical Officer / Civil Surgeon, Bilaspur . The Civil Surgeon Cum Chief Hospital Superintendent send the detail investigation report of the investigation team to the Officer Incharge, Police Station, Sarkanda on 02.05.2015 along with conclusion on 8 points and opined that "No negligence or irregularity was found in the treatment of the patient. The O.P. is issuing receipt as per rules for depositing the amount. The O.P. did not take any amount from the complainant fraudulently in respect of treatment. The O.P. provided the // 5 // treatment papers to the complainant from time to time. The complainant made written complaints against the O.P. and other doctors on behalf of his daughter Sonali Kashyap before Police Station, Civil Lines, Bilaspur, Chief Justice, C.G. High Court, Inspector General of Police, Bilaspur (C.G.), and Superintendent of Police. In pursuance of the above complaint, the Officer Incharge, Police Station, Sarkanda got investigated the matter from the team of the doctors of office of Chief Medical Officer / Civil Surgeon, Bilaspur and it was found that the O.P. and hospital of the O.P. did not commit any negligence of irregularity in treatment of the daughter of the complainant. In the hospital of the O.P., there is sufficient arrangement for treatment of burning, it means in the Shishu Bhawan Hospital of the O.P., there is sufficient arrangement for treatment of the burnt children. The medical team consists of child surgeon, burn and plastic surgeon and child disease doctors, who are competent to treat the burnt patient. The daughter of the complainant was treated by Dr. Omprakash Makhija, M.C.H. Child Specialist and Dr. Shashikant Sahu, M.C.H. Burn and Plastic Surgeon. In the hospital of O.P. No.1, the expert doctor had got admitted the patient and treat her for 30% Deep Burn Injury and Septicemia, but there was no improvement in the conditions of child and on 03.12.2014 the decease Ku. Rani was having acute breathing problem, inspite of insertion of oxygen, there was scarcity of oxygen, she was kept in ventilator with other medicines and from time to time during her treatment, the relatives of the patient was informed regarding the seriousness of her disease, in writing and in the notice, signature was taken as acknowledgement. From the test done at the time of admission of the patient and the report obtained from CIMS, it is clear that the patient was having 30% deep burn and Septicemia and in the // 6 // report it is mentioned foul smelling coming out from dressing. The cause of death was Septicemia, and the patient was having Septicemia at the time of admission. The doctors of the hospital of O.P. treatment the patient honestly Dr. Omprakash Makhija, M.C.H. Paediatric Surgeon, conducted Antibiotics and Dressing for Deep Burn and Septicemia from time to time and as per requirement and Skin Grafting was done by Dr. Shashikant Sahu, M.C.H. Plastic Surgeon as per procedure, but the patient died due to acute infection. The O.P. did not given any false assurance to the complainant and did not take Rs.8,00,000/-. In the hospital of O.P., proper treatment was given to the patient and from time to time family members of the patient were informed regarding her condition. The relevant documents were provided to the complainant. The O.P. did not commit any medical negligence or deficiency in service. The complaint is liable to be dismissed.
4. The complainant has filed documents. Annexure P-2 are receipts issued by the O.P. on various dates, Annexure P-3 is Inquest Report, typed copy of Inquest Panchnama, Annexure P-4 are application for postmortem, typed copy of application for postmortem, postmortem examination report, typed copy of post mortem examination report, photocopy of the photographs, Annexure 6 is complaint made to Officer Incharge, Police Station, Civil Lines, Bilaspur (C.G.).
5. The O.P. has also filed documents. The documents are letter dated 22.07.2015 sent by Officer Incharge, Police Incharge, Police Station, Sarkanda, District Bilaspur, Investigation Report dated 17.04.2015, application dated 17.4.2015 sent by Officer Incharge, Police Station, Sarkanda, District Bilaspur // 7 // (C.G.) to Chief Medical Officer / Civil Surgeon, District Hospital, Bilaspur for making investigation by the team of doctors, application dated 13.04.2015 sent by Officer Incharge, Police Station, Sarkanda, District Bilaspur (C.G.) to Chief Medical Officer / Civil Surgeon, District Hospital, Bilaspur for making investigation by team of doctors.
6. Learned District Forum after having considered the material placed before it by the parties, has dismissed the complaint of the complainant by the impugned order.
7. Shri Pawan Shrivastava, learned counsel appearing for the appellant (complainant) has argued that Ku. Rani, daughter of the complainant, aged about 8 years was got admitted in the hospital of O.P. in 28% burning condition on 30.11.2014. She was admitted in private ward of the hospital of O.P., because the O.P. has assured the complainant that his daughter would become alright at the earliest. In the hospital of O.P., there is no burn unit, even then the O.P. kept the daughter of the complainant in general room and proper treatment was not given to her due to which the condition of Ku. Rani was deteriorated and the O.P. committed negligence to treat the daughter of the complainant. Ku. Rani only sustained 28% burn injuries, even then she suffered Septicemia, which was caused to her due to the negligent act of the O.P. The O.P. extracted amount from the complainant near about Rs.8,00,000/-. Due to negligent act of the O.P., Ku. Rani, died. Therefore, the complainant is entitled to get compensation from the O.P., but learned District Forum has erroneously dismissed the complaint with appreciating the above facts. The impugned order passed by the District Forum, is erroneous and is liable to be set aside.
// 8 // The appeal of the appellant (complainant) be allowed and the reliefs as prayed by the complainant in the complaint be awarded. He placed reliance on V. Krishna Kumar Vs. State of Tamilnadu & Others (2015) 9 Supreme Court Cases 388.
8. Shri D. Dutta and Shri G.V.K. Rao, learned counsel appearing for the respondent (O.P.) have argued that the complainant himself brought his daughter Ku. Rani in the hospital of O.P. from C.I.M.S. Medical College, Bilaspur. The O.P. did not give any assurance to the complainant that her daughter will become alright. The O.P. did not demand a sum of Rs.8,00,000/- from the complainant and the complainant did not pay the above amount to the O.P. The O.P. gave receipts to the complainant for the amount which was received by him. The O.P. did not commit any negligent while treating the daughter of the complainant and she was treated according to the medical norms prescribed procedure. Earlier, Ku. Rani was got admitted in C.I.M.S. Bilaspur and according to the note mentioned in the blood report dated 29.11.2014, the haemoglobin of daughter of the complainant was 16.2 and T.L.C. & D.L.C. was very low on P.S. Deficiency of T.L.C. / W.B.C., shows Septicemia. In the report it is mentioned that the quantity of the urea is increased to 65 whereas normal range is 13-45. Due to above deficiency, the kidney of the daughter of the complainant was affected. In the hospital of O.P., team of expert doctors are available for treatment of diseases of the children and they are treating the children according to their qualifications. If necessary, the O.P. is also taking services of other expert doctors from outside from time to time, as per requirements. In the instant case, with the consent of // 9 // the complainant, services of the other expert doctors were taken for treatment of the daughter of the complainant. The treatment to the daughter of the complainant was properly given and she died due to Septicemia. The complainant made complaints against the O.P. before Police and other authorities also. The Officer Incharge of Police Station, Sarkanda, Bilaspur got investigated the matter. The Chief Medical Officer, Bilaspur also investigated the matter and gave their report in which it is found that no medical negligence was committed by the O.P. Therefore, the impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (complainant) is liable to be dismissed.
9. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum and impugned order.
10. It is admitted fact that Ku. Rani (deceased) aged about 8 years was daughter of the complainant Amar Kashyap and she was got admitted in the hospital of O.P. due to sustaining burn injuries.
11. According to the complainant there was no separate burn unit in the hospital of the O.P. and the daughter of the complainant was admitted in general room. The daughter of the complainant was suffering from infection and her skin was also infected and was separated from her body. The proper treatment was not given by the O.P. to the daughter of the complainant and the O.P. committed medical negligence.
// 10 //
12. The complainant relied on V. Krishna Kumar Vs. State of Tamilnadu & Others (Supra). In para 14 of the judgment, Hon'ble Supreme Court has observed thus :-
"14. Having given our anxious consideration to the matter, we find that no fault can be found with the findings of NCDRC, which has given an unequivocal finding that at no stage, the appellant was warned or told about the possibility of occurrence of ROP by the respondents even though it was their duty to do so. Neither did they explain anywhere in their affidavit that they warned of the possibility of the occurrence of ROP knowing fully well that the chances of such occurrence existed and that this constituted a gross deficiency in service, nor did they refer to a paediatric ophthalmologist. Further, it may be noted that Respondents 3 and 4 have not appealed to this Court against the judgment V. Krishna Kumar Vs. State of Tamilnadu, Original Petition No.57 of 1998, decided on 27-52009 (NC) of NCDRC and have thus accepted the finding of medical negligence against them.
13. Now we shall examine whether on the basis of above judgment, the complainant has been able to prove the negligence on the part of the O.P. ?
14. In Pally Srikanth & Ors. Vs. M/s. Krishna Institute of Medical Sciences Ltd. & Ors., 2016 (4) CPR 46 (NC), Hon'ble National Commission has observed that "Onus of proving alleged negligence in treatment of a patient lies with person alleging medical negligence."
15. In Prayag Hospital & Research Center Pvt. Ltd. & Anr. Vs. Vijay Pal, 2016 (2) CPR 2 (NC), Hon'ble National Commission has observed that "complainants must provide materials to prove allegation of medical negligence."
// 11 //
16. In Ashok Kumar Pathak Vs. Dr. Swarnava Roy and Anr. 2017 (1) CPR 251 (NC), Hon'ble National Commission has observed that "Medical Negligence must be proved by expert opinion."
17. In the instant case, the complainant made complaint to the concerned Collector and Police Station, Civil Lines, Bilaspur (C.G.). The Station House Officer, Sarkanda, Bilaspur (C.G.) sent letter to the Chief Medical Officer / Civil Surgeon, District Bilaspur, to inquire the matter in respect of the complaint made by the complainant. The Police sent questionnaire containing questions :-
01. Whether there is sufficient arrangement for the treatment of burn patient in Shishu Bhawan. Whether the dustbin was found, as shown in the photograph?
02. Whether the team of doctors of Shishu Bhawan are competent to treat the burn patients ?
03. Whether the box of skin is available in the medical shop of the Apollo Hospital, from which there is possibility to conduct graft (surgery) of the burnt body ?
04. Whether it is proper to take graft from the thigh for the burnt part, according to the medical science ?
05. Whether the postmortem report proved that the kidney of the child was removed ?
06. Whether inspite of sufficient treatment of a 8 year child who sustained 30% burn injuries, her death is possible.
// 12 //
07. Whether the Septicemia is caused to the patient due to giving wrong medicine and the blood become toxic "
08. Besides it, if any other information is available, then provide the same ?
18. In response thereto, a Committee was constituted by the Civil Surgeon, District Hospitla, Bilaspur. Dr. Arvind Shukla, Child Specialist, Dr. S.S. Bajpai, Surgeon and Dr. O.P. Raj, Medical Officer (Surgeon), are members of the Committee. They sent their report to the Civil Surgeon, District Hospital, Bilaspur (C.G.), in which it is mentioned thus :-
"1. In Shishu Bhawan, there is sufficient arrangement for treatment of the burn children. The box of various colours shown in the photo are related to disposal of the medical rubbish arosed during treatment, according to the standard procedure.
2. In the Shishu Bhawan, the Medical Team consists of Paediatric Surgeon (Burn), Plastic Surgeon and there is also Paediatricians, who are competent to treat the burn patients.
3. It is not true that for treatment of burning, any type of skin box are available in the Apollo Hospital or in any other medical shops.
4. It is proper to use the skin of the thigh to save the burnt part from infection by covering the burnt part.
5. In the post mortem report there is no mention that kidney was removed.
6. During the treatment, the death of the child aged about 8 years, who sustained burn injuries upto 30%, is possible.
// 13 //
7. The meaning of the Septicemia is that there is movement of bacteria in the blood. This problem is not caused due to effect of
8. Besides above facts, we are of the opinion that we do not find any type of negligence or irregularity in treatment of the patient."
19. According to the complainant, his daughter Ku. Rani had suffered 28% burn injuries. In Modi- A Textbook of Medical Jurisprudence and Toxicology 25th Edition - Justice K. Kannan, at page No.542 Classification of Burn, is mentioned, which runs thus :-
"Classification of Burns - Dupuytren classified burns into six degrees, according to the nature of their severity, Modern classification (Heba's classification) accords three degrees only by grouping the first and second (epidermal) third and fourth (dermo-epidermal) and fifth and sixth (deep) degrees together. Another classification grades burns into superficial and deep burns.
(i) Epidermal Burns
(a) First Degree - First degree burns consists of erythema or simple redress of the skin caused by the momentary application of flame or hot solids, or liquids much below boiling point. It can also be produced by mild irritants. The erythema marked with superficial inflammation usually disappear in a few hours, but may last for several days, when the upper layer of the skin peels off but leaves no scars. They disappeared after death due to the gravitation of blood to the dependent parts.
(b) .............
// 14 //
(ii) Dermo - Epidermal Burns
(a) Third Degree - Third- degree burn refers to the destruction of the cuticle and part of the true skin, which appears horny and dark, owing to it having been charred and shriveled. Exposure of nerve endings gives rise to much pain. This leaves a scar, but no contraction, as the scar contains all the elements of the true skin.
(b) Fourth Degree - In fourth-degree burns, the whole skin is destroyed. The sloughs which form are yellowish-brown and parchment-like and separate from the fourth to the sixth day, leaving an ulcerated surface, which heals slowly forming a scar of dense fibrous tissue with consequent contraction and deformity of the affected parts. The burns are not very painful as the nerve endings are completely destroyed. In page 543, percentage of burn is mentioned. At page no.544, the site, age of patient and sex are mentioned which runs thus :-
(iv) Site - Extensive burns of the trunk, even though superficial, are much more dangerous than those of the extremities.
Burns of the genital organs and the lower part of the abdomen are often fatal.
(v) Age of the patient - Children are more susceptible to burns, but stand prolonged suppuration better than adults. Older people are more prone to fatal complications.
(vi) Sex - Sensitive and nervous women are more susceptible to burns than strong women, however, women generally do not bear burns as well as men."
// 15 //
20. In the postmortem report, it is specifically mentioned that deceased Ku. Rani Kashyap sustained burn injuries on her abdomen and both shoulders and axilla. Wound infected both legs, both axilla and abdomen. Looking to the Post Mortem report, it appears that skin grafting seen over and old burn area. The Committee specifically mentioned in their report that in Shishu Bhawan, there is sufficient arrangement for the children, who sustained burn injuries and in the Shishu Bhawan, Paediatric Surgeon (Burn) and Plastic Surgeon, are working and they are competent to treat the burn patients. Looking to the above report, mere allegation of the complainant, is not sufficient to prove that the O.P. has committed any medical negligence while treating the deceased Ku. Rani Kashyap, therefore, the judgment cited by the complainant, is not helpful to him.
21. Therefore, the impugned order dated 14.11.2017, passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality, hence does not call for any interference.
22. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
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