State Consumer Disputes Redressal Commission
Janta Hospital vs Kashmir Singh on 18 September, 2012
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.721 of 2007
Date of institution: 23.05.2007
Date of decision : 18.09.2012
1. Janta Hospital, Opposite Central Jail, Ajnala Road, Amritsar through
its Proprietor, Col. Harbans Singh.
2. Dr.Mandeep Kaur c/o Janta Hospital, Opp. Central Jail, Ajnala Road,
Amritsar.
.....Appellants
Versus
Kashmir Singh son of S.Mohinder Singh r/o Near R.K.Model School, Gali
No.1, Palaha Sahib Road, P.O.Central Jail, Amritsar.
.....Respondent
First Appeal against the order dated 30.03.2007
passed by the District Consumer Disputes
Redressal Forum, Jalandhar.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member
Sardar Jasbir Singh Gill, Member Argued by:-
For the appellants : Sh.Updip Singh, Advocate &
Dr.J.S.Pannu
For the respondent : Sh.Ravinder Sharma, Adv. for
Sh.H.S.Bath, Advocate
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER
This is OP's appeal under Section 15 of the Consumer
Protection Act, 1986 (hereinafter referred to as the Act) against the order dated 30.3.2007 passed by the learned District Consumer Disputes Redressal Forum, Jalandhar (in short the District Forum) vide which the complaint was allowed and the OP-appellant No.1 was directed to pay Rs.5 lakh as compensation.
2. The case of the complainant is that his wife Shrimati Amarjit Kaur was suffering from Fibcoidieterus for which Hysterectomy was to be done as directed by the doctor concerned. The complainant took his wife to Janta Hospital OP-appellants for treatment. Amarjit Kaur was admitted First Appeal No.721 of 2007 2 in the hospital where OPs assured that they have ultra modern facilities and she would be treated in a proper way. It was alleged that without conducting proper investigation and pre-operative tests and without taking appropriate measures of sterilization of theatre instruments/sheets and dressings, they performed operation on 25.12.2003 in a haste and negligent manner. The OP-appellants, however, informed the complainant that the operation has been successfully done and uterus of his wife has been removed. According to the complainant before conducting the operation, complete physical and Laboratory investigations were to be done at least 24 hours prior to surgery which practice was not followed in this case and proper investigation was not done to rule out any disease to her. After sometime, the condition of Amarjit Kaur started deteriorating but the OPs assured that she was perfectly stable and nothing has happened. Again on 26.12.2003, when the condition of Amarjit Kaur did not improve, the OPs did not pay any heed to his hue and cry and continued telling him that nothing was going to happen. After the operation, Amarjit Kaur remained unconscious and when till 27.12.2003, her condition did not improve, he again approached the OPs who without giving any satisfactory answer suggested to him to shift his wife to Amandeep Hospital i.e. OP No.3 as the appellants did not have proper facilities of ICU, Ventilator and other equipment in their hospital. The appellants charged from him Rs.40,000/- and when they put pressure on the complainant, he had to shift her to Amandeep Hospital OP No.3.
3. Amandeep Hospital OP No.3 also got conducted many tests and charged hefty amount. She was shifted to ICU for which the complainant was directed to deposit Rs.50,000/-. She remained under their treatment for two days i.e. 27 and 28.12.2003 but her condition did not improve and ultimately, OP No.3 also told him that they were unable to save her because she was operated in a most negligent manner. On First Appeal No.721 of 2007 3 29.12.2003, Amarjit Kaur was shifted to Hartej Nursing Home OP No.4 in the hope that she would be saved. However, OP No.4 charged their expenses of the hospital and in the evening declared that they were unable to save her as she was operated in a most negligent manner. They asked the complainant to take her to some other hospital. The complainant, therefore, shifted Amarjit Kaur on 29.12.2003 to Escorts Heart and Super Speciality Institute OP No.5 where again all the tests were performed and expenses were deposited. She, however, died on 31.12.2003 at 12 noon due to Septicaemia and multiple organ failure. During this period, she had undergone many sufferings and became a victim of medical negligence. It was contended that it all happened because there was no proper sterilisation of operation theatre instruments, sheets and dressings and a qualified staff had not been appointed by the OPs and he suffered the loss of his wife who died leaving behind 4 minor children who have been deprived of the natural love and affection of their mother. The complainant, therefore, prayed for compensation of Rs.18 lacs from the OPs with interest @ 18% per annum and also Rs.2 lacs as the expenses incurred by him on her treatment. He also prayed for costs of litigation.
4. The case of the appellants is that the complainant does not fall under the definition of a consumer and the allegations levelled by him do not give any cause of action to file the complaint. It was alleged that the complaint is bad for mis-joinder and non-joinder of institutions/doctors where the patient was investigated or treated prior to her operation by the appellants. It was admitted that Amarjit Kaur was brought to their hospital for treatment on 21.12.2003. She was diagnosed as a case of Fibroid Uterus. She was suffering from Menorrhagia for the last 4 years and since she did not respond to medical treatment, it was decided to operate her. She had got treatment from Dr.T.S.Sandhu who advised hysterectomy but in the meantime, the size of fibroid enlarged substantially and uterus First Appeal No.721 of 2007 4 became multiple fibroid. The complainant had obtained ultrasound report indicating need for hysterectomy. It was contended that she had taken indigenous medicine from Tarn Taran for the last 4-5 months but she had stopped the same about 4 or 5 days prior to 21.12.2003 as she did not get any relief therefrom. Amarjit Kaur was, therefore, advised to get admitted in the hospital and the requisite investigations for the said surgery were advised. The complainant and Amarjit Kaur went back after getting ECG done and promised to come back in a day or two later after making arrangements at their home.
5. The case of the OP-appellants further is that she came again on 24.12.2003 and was admitted in the OP-hospital. The complainant gave written consent for admission as well as for surgery and its follow up. All requisite investigations for surgery were ordered to be done. The operation was conducted on 25.12.2003 in the morning. She was found medically fit for surgery and after abdominal hysterectomy with bilateral salpingoophrectomy, the fibroid uterus was removed. After the surgery, she remained in satisfactory condition for 36 hours but in the evening of 26.12.2003 at about 7.30 p.m., she felt uneasiness and vomiting. Her vitals were monitored. Slight tachycardia and a little fall in the blood pressure with increase in pulse rate was noticed. She had cold sweats as well. She was put on constant monitoring, upon which, she was put on oxygen therapy. The OP-appellants did ECG to evaluate cardiac condition, blood and urine samples were taken and sent to laboratory for investigation, the report of which was received on 29.12.2003 suggesting no pathology. When the condition of Amarjit Kaur did not improve and it was felt that probable diagnosis was post operative septicaemia shock which was a known complication and more so, in pelvic surgeries, she was taken for ultrasound as well as for Echocardiography to Nijjar Lab. and Diagnostic Centre to rule out any surgical or medical cause for the ongoing First Appeal No.721 of 2007 5 complication. In the best interest of the patient, she was shifted to ICU of Amandeep Hospital. In the said hospital also, she was constantly followed up by Dr.J.S.Pannu and doctor incharge of the ICU of the said hospital. She was put on ventilator on 28.12.2003. However, on 29.12.2003, she was shifted to Hartej Hospital by the attendants against medical advice.
6. It was denied if hysterectomy is a minor operation but it was the only answer for her problem. It was denied if the appellants represented that they have the best facilities in the city. According to them, they never apprehended that the ICU ventilator would be required but otherwise also, the appellants had attachment/arrangement with Amandeep Hospital for use of their ICU if needed. It was denied if proper investigation and pre-operative tests were not conducted before the operation or the instruments, operation theatre, sheets, dressing were not sterilised. It was also denied if surgery was done in a haste and negligent manner. According to the appellants, even if they did not have proper ICU facility, during the relevant time, the patient had been shifted to ICU without wastage of any time and even if the appellants did not have a ventilator, it was not relevant because the ventilator was used by Amandeep Hospital 28 hours after the admission of the patient in their hospital. It was denied if the doctors in the appellant hospital were not competent to treat the patient.
7. The OP-appellants denied if they charged Rs.40,000/- for the treatment. According to them, the complainant paid only Rs.4000/- as advance and the hospital bill was to be paid at the time of discharge. However, due to complications, they have not so far demanded the hospital bill of Rs.6,020/- from the complainant. It was denied if the doctors of Amandeep Hospital told the complainant that the appellants did surgery in a negligent manner or if she was shifted to ICU very late. According to them, there was no negligence or deficiency in service on their part. Proper First Appeal No.721 of 2007 6 treatment on well accepted scientific lines was given to the patient by the doctors with proper qualification and experience. Amarjit Kaur was shifted to Amandeep Hospital without wastage of any time when she needed ICU care. The OP-appellants denied the other allegations and prayed for dismissal of the complaint.
8. According to Amandeep Hospital, OP No.3, the complaint is not maintainable against them as the same does not specify what was negligence or deficiency in service or unfair trade practice on their part. According to them, the patient was given best possible treatment but the complainant left them on 29.12.2003 at 10.45 a.m. against medical advice at their own risk. It was denied if they charged exorbitant amount for stay in their hospital. According to them, she was brought to their hospital on 27.12.2003 at 9.45 a.m. in a very critical condition. She was in shock with no blood pressure and having deranged renal and liver functions. Her pulse rate was 132 per minute and she was already put on drugs which raise blood pressure. She was received in the emergency and was straightaway sent to the ICU where she was monitored and remained under treatment. It was contended that she was in Septicaemia with acute renal failure, deranged liver function and low platelet counts. She was put on ventilator on 28.12.2003 at 12.30 p.m. after explaining the seriousness of her condition to Kashmir Singh. She remained on ventilator till 10.45 a.m. on 29.12.2003 when her husband and next of kin left against medical advice. They had charged Rs.5,000/- from the complainant. According to OP No.3, they gave best possible treatment which was desired in the circumstances but the complainant did not give them sufficient time to treat her. They denied if they told the complainant that his wife could not be saved as she had been operated upon in a most negligent manner. It was denied if they told the complainant that he had come late and should take his wife to some other hospital as she could not be saved by them. It was First Appeal No.721 of 2007 7 denied if there was any negligence on their part and if they are liable to pay any compensation.
9. Amarjit Kaur was then taken to Hartej Nursing Home OP No.4. Their contention also is that the complainant is not their consumer and they have been made unnecessarily a party in the case without levelling any allegations against them. It was admitted that Amarjit Kaur was shifted to the ICU of their hospital on 29.12.2003 on the request of attendants including the complainant. She was already on ventilator support at that time. All the requisite investigations were got done and as per the advice of Nephrologist, she needed haemodialysis, due to which, she was shifted to Escorts Heart and Super Speciality Institute. It was alleged that there was no negligence or deficiency in service on their part because proper treatment on well accepted scientific lines was given to her by the doctors having proper qualification and experience. There was no act of omission and commission, deficiency or negligence or delay in giving the treatment. She was shifted to OP No.5 in her best interest as she was in a critical condition. According to them, it was a case of multiple post operative complications which included Septicaemia and multiple organ failure at that time. They denied if there was any negligence on their part and if they are liable to pay compensation.
10. According to OP No.5, Amarjit Kaur was transferred to their hospital on 29.12.2003 at 23 hours. She was in shock, had low blood pressure and had multiple organ failure including renal failure, respiratory failure requiring mechanical ventilation, liver dysfunction, convulsion and generalised bleeding disorder. During hospital stay, she received the multiple blood and blood components transfusions, inotropic support for low BP, mechanical ventilation and antibiotics. However, in spite of the best treatment, her condition continued to deteriorate and she was pronounced dead at 12 noon on 31.12.2003. They denied if there was any First Appeal No.721 of 2007 8 medical negligence or professional incompetence on their part. According to them, they charged Rs.58,450/- from the complainant. They also denied the other allegations and contended that there is no merit in this complaint.
11. OP No.6 is the insurance company which is the insurer of Dr. Avtar Singh of Amandeep hospital. Their contention is that they are not insurer of Amandeep Hospital but of Dr.Avtar Singh who has not dealt with the case nor he has been arrayed as a party. It was alleged that the negligence, if any, is alleged to be on the part of the appellants with whom they have no privity of contract. It was contended that they are not liable to compensate the complainant.
12. OP No.7 is the Oriental Insurance Company insurer of OP No.3 which has denied if the complaint is legally competent or the complainant is a consumer. They denied all the paras in the complaint.
13. OP No.8 is the National Insurance Company Limited who is the insurer of Dr.Hartej Nursing Home i.e. OP No.4. They denied if there was any negligence on the part of the said hospital and if they have any liability to pay any compensation.
14. The parties were given necessary opportunity to adduce evidence in support of their contentions.
15. After hearing the arguments of the learned counsel for the parties and perusing the record, the learned District Forum vide impugned order dated 30.3.2007 allowed the complaint and directed OP No.1 to pay Rs.5 lacs as compensation. The OP has challenged the same through the present appeal.
16. We have heard the arguments of the learned counsel for the parties and have perused the record.
17. The learned counsel for the appellants has argued that the learned District Forum did not have the jurisdiction to try this complaint. He referred to the prayer made by the complainant, in para 23 of which, the First Appeal No.721 of 2007 9 complainant prayed for a compensation of Rs.18 lacs and a sum of Rs.2 lacs as the amount which he had spent on the treatment of his wife. The complainant has also prayed for interest @ 18% per annum with effect from 31.12.2003 and the learned counsel argued that the interest on the amount of Rs.20 lacs, (from 31.12.2003 to 7.4.2004) amounts to Rs.90,000/- and in this manner, the relief claimed by the complainant is beyond the pecuniary jurisdiction of the learned District Forum. We do not find any merit in this argument. In fact, the award of interest is in the discretion of the learned District Forum and, therefore, cannot be taken into account to determine the pecuniary jurisdiction of the learned District Forum. Once the interest is excluded, the amount claimed by the complainant remains Rs.20 lacs which is within the pecuniary jurisdiction of the learned District Forum. In a similar case "Shahbad Cooperative Sugar Mills Ltd. v. National Insurance Company Limited, II (2003) CPJ 81 (NC)", the Hon'ble National Commission held that the payment of interests on a claim depends on the discretion of the Consumer Fora and, therefore, the State Commission acted erroneously in adding the amount of interest with the substantive amount and it cannot be taken into consideration for deciding the pecuniary jurisdiction of the Consumer Fora. The Hon'ble Maharashtra Commission has relied upon the aforesaid authority of the Hon'ble National Commission in case "Zujarbhai Y. Katawala v. Marol Land Developers & Others, II (2005) CPJ 631".
18. Otherwise also, the learned District Forum, allowed a compensation of only Rs.5 lacs which the learned District Forum was competent to award and did not allow relief beyond his jurisdiction.
19. This complaint was initially instituted at Amritsar. On 01.11.2006 when one of the parties behaved in a manner which showed that the said party was not having any faith in the impartiality of the learned First Appeal No.721 of 2007 10 District Forum, the file was, therefore, sent to this Commission for transferring the same to some other Forum having jurisdiction. The matter was heard by this Commission on 23.11.2006 and was transferred to the learned District Forum at Jalandhar. That was the first opportunity available to the OPs to request this Commission not to send it to the learned District Forum and to try it itself in view of the contention now being raised. However, no such objection was taken against the jurisdiction of the learned District Forum and, therefore, this argument now cannot succeed.
20. It was admitted by the appellants at page No.8 of their reply that the post operative Septicaemic shock is a known complication in pelvic surgeries. The learned counsel also referred to page 235 of Post Operative Infections Prevention and Management in which it is mentioned that all women have bacteria colonizing the vagina in greater or lesser numbers and it is these same bacteria normally existing in a symbiotic relation that ultimately can invade tissue altered by surgery and infect the body. The author has further listed the bacteria responsible for post operative infection after gynaecological surgery. The learned counsel also referred to Clinical and Biology Reviews published by the America Society of Microbiology regarding Gram-Negative Sepsis - a Dilemma of Modern Medicine. It is mentioned therein that despite recent advances in our understanding of the pathophysioligcal mechanism of sepsis and improved antimicrobial therapy, the mortality rate from gram-negative sepsis remains frustratingly high particularly after the onset of shock. The contention of the learned counsel for the appellants is that even if the doctor had taken all necessary steps to fight sepsis, it was beyond their control and, therefore, there was no deficiency in service on the part of the OPs and the impugned order passed by the learned District Forum cannot sustain. We do not find any merit in this argument.
First Appeal No.721 of 2007 11
21. One thing is certain that as a reasonably prudent doctor, the OPs knew that they are operating upon a woman performing gynaecological surgery where bacteria is present which could cause sepsis. In the light of this knowledge of the OP, we are to examine as to what steps had been taken by the OP-appellants to control the onset of sepsis on the deceased. It is an admitted fact that the OPs neither had the Intensive Care Unit nor a ventilator in their hospital but even then they admitted the patient who was in all probabilities likely to be affected by sepsis due to the presence of bacteria in the region which was to be affected by their operation. The learned District Forum considered this fact that the non-availability of ICU and a Ventilator is a deficiency in service. The learned counsel for the appellants has argued before us that in respect of ICU, they could take help from Amandeep Hospital where not only ICU but ventilator was also available. It is also argued that when the patient was shifted to the said hospital, she was not straightaway put on ventilator but OP No.3 took 28 hours after the admission of the patient in their hospital to put her on ventilation. It is argued that in view of these facts, the non-availability of ICU or ventilator could not be considered as a deficiency in service. We do not find any merit in this argument and agree with the finding recorded by the learned District Forum that it amounted to deficiency in service on the part of OP/appellant No.1.
22. Amandeep Hospital OP No.3 has nowhere admitted if the appellants could avail of its ICU at any time they liked. Availing of the ICU of some other hospital is totally a different matter than making available the ICU to serious patients in the OP-hospital itself. Otherwise also, the ICU of Amandeep Hospital was not utilised by the OP at all during the period the patient remained admitted in their hospital. When we go through the written statement filed by Amandeep Hospital OP No.3, it becomes clear that Amarjit Kaur was brought to their hospital when she was in shock with First Appeal No.721 of 2007 12 no blood pressure having deranged renal and liver functions. She was in a critical condition and in a state of emergency. She was straightaway taken to the ICU. It shows that even before the patient was shifted to Amandeep Hospital, she urgently needed the treatment in the ICU but the same was not made available to her. It is not understood as to why the appellants were keeping the patient in their hospital who was in a shock and had no blood pressure at all and did not shift her to a hospital where she could avail an ICU. It shows that the patient should have been shifted to an ICU long before but the appellants delayed the matter without any justifiable reasons. In this respect, the mere fact that the ICU was available in some other hospital is no justification for the OPs to have admitted the patient for operation or when the condition of the patient deteriorated to keep her in their hospital till such time that her condition became so hopeless that there could be no recovery of her.
23. As regards the fact that the patient was not put on ventilation for 28 hours after her admission in Amandeep Hospital, that also does not exonerate the appellants of medical negligence committed by them. The question is whether a person who was in Sepcaemic shock and had no blood pressure, had deranged renal and liver functions needed to be put on ventilator or not. Our answer to this question is in the affirmative. The mere fact that due to inaction on the part of OP No.3 Amandeep Hospital she was put on ventilator 28 hours after her admission in their hospital does not justify the delay on the part of the appellants or for that matter on the part of Amandeep Hospital and does not prove that she did not need the artificial ventilation. We are, therefore, of the opinion that the findings recorded by the learned District Forum that the OPs were negligent in operating upon Amarjit Kaur when they had no ICU or ventilator is correct.
24. Another aspect of the case is that when the OPs-appellants knew that they were operating upon a woman who could be affected by First Appeal No.721 of 2007 13 sepsis, as to what precautions were taken by them before and after the operation to protect her from the sepsis. Ex.R5 is the record of the OP- appellant hospital. The operation was conducted on 25.12.2003 at about 7.00 a.m. It is reported that the operation was successful. Record dated 25.12.2003 shows that after the operation, her BP, PR, Respiratory rate were all checked and it was at 9.30 p.m. that injection Vovern was prescribed to check the pain which she felt at the operated area. On 26.12.2003 at 7.30 p.m., some injections and medicines were prescribed but no antibiotics were administered to her. At that time, she is reported to have been feeling uneasy, Ghabrahat and vomited. Her blood pressure had come down to 100/60 but the OP-appellants did not realise that she was acquiring sepsis. At 7.50 p.m. on that date again, the vitals were monitored. Her blood pressure had come down to 90/60 but again no antibiotics were prescribed. However, in the column meant for "nurses Remarks' certain medicines were mentioned. According to the learned counsel for the complainant-respondent, no such medicines were prescribed and this addition was, subsequently, made to show that antibiotics were given. We are of the view that if any medicines were prescribed, then the doctor would have mentioned the same in the column meant for him/her where he/she mentioned about BP, PR etc. as was mentioned in the notes dated 26.12.2003 at 7.50 p.m. It is, therefore, an interpolation made subsequently and cannot be relied upon. At 11.55 p.m., the blood pressure had fallen to 88/60 and even at 7.00 a.m. on 27.12.2003, the blood pressure is shown to be 88/60 but even then she was not shifted to a Hospital having ICU and ventilator.
25. The patient was removed to Amandeep Hospital on 27.12.2003 at 9.15 a.m. but no blood pressure or other vitals appear to have been recorded or mentioned in the said reference. When the patient reacheed Amandeep Hospital at 9.45 a.m. on 27.12.2003, it is mentioned First Appeal No.721 of 2007 14 that she was in a shock with no blood pressure. It shows that the record of the appellants showing her blood pressure as 88/60 was totally wrong. The OP-appellants have not even mentioned that she was in a shock or having deranged renal and liver functions. It shows that the appellants were concealing true facts and were not recording her vitals correctly. Due to the delay on their part, the BP could not be raised by them which led to failure of renal and liver functioning. In this respect, the contention of the complainant appears to be correct when he deposed that Amarjit Kaur had been in a bad shape right from her operation; that her condition was deteriorating; that even on 26.12.2003, her condition did not improve but the appellants did not pay any heed to his hue and cry. They had been assuring him that she would recover very soon. According to the complainant, she had throughout remained unconscious and her blood pressure was decreasing. The contention of the OPs-appellants that she was handled properly in accordance with well established norms is, therefore, totally wrong and baseless. They had not been recording her vitals correctly and took no steps to safeguard her from the attack of sepsis immediately after the operation or when she started feeling Ghabrahat and her blood pressure starting falling. The OP-appellants, therefore, did not conduct themselves as a reasonably prudent doctor to safeguard the interest of their patient. The conduct of the OP-appellants in not administering any antibiotic after the operation fully knowing that she was likely to be attacked by bacteria in the vaginal region which was operated upon and not promptly shifting her to ICU to control the fall of Blood Pressure which led to organ failure, it was, therefore, rightly held as deficiency in service on their part.
26. The learned counsel for the appellants has referred to Nurses Treatment Chart and argued that from time to time medicines were administered to the patient and, therefore, there was no deficiency in First Appeal No.721 of 2007 15 service on the part of the appellants. We do not agree with this contention. The loose sheets of Nurses Treatment Chart cannot be relied upon because these can be introduced or replaced at any time by the OPs to manipulate the record in their favour. The Nurses Treatment Chart shows the pulse and BP/temperature rates but so far as the administration of medicine is concerned, it can be administered only on the directions of the doctor and the said directions are to be recorded in Ex.R5 on day to day basis. There is no proof or averment if any general instructions had been given to administer the said medicines nor any specific directions have been mentioned in the treatment chart to administer a particular injection or medicine to the patient. We cannot believe that the nurses had been prescribing and administering the said medicines of their own. If it was so, then this fact itself amounts to deficiency in service. However, we believe that in the OP-appellant hospital, only such medicines are administered to the patients which are prescribed by the doctors and not by the Nurses of their own. The learned counsel for the appellants has not been able to show from the treatment chart as to on which date the antibiotics were prescribed by the doctors to be administered to the appellants. The medicines mentioned by the Nurses in their chart or the medicines mentioned in column meant for 'Nurses Remarks' in Annexure R5 cannot be said to have been administered or prescribed by the OPs/appellants as it appears, these were subsequently added. The appellants, in fact, wasted a lot of time in keeping the patient in the hospital after 7.30 p.m. on 26.12.2003 when the patient felt uneasiness and Ghabrahat and had vomited and her blood pressure started falling down. This conduct of OPs No.1 and 2 not to promptly shift the patient to ICU and provide ventilator was, therefore, deficiency in service on the part of the OP-appellants.
27. The fact that no such medicines were administered to the patient by the OP-appellants is further proved from the fact that no First Appeal No.721 of 2007 16 evidence was led by the OP if the said medicines were purchased either by the complainant or were supplied by the appellants themselves from their stock. There is neither any cash memo produced on record nor any evidence as the copy of the stock register nor any bill produced by the OPs charging the amount of the said medicines from the complainant placed on file and the only conclusion is that no such medicines were purchased by them and, therefore, the same could not have been administered to the patient. This fact, therefore, also establishes that the OP-appellants did not administer the medicines/antibiotics which were necessary to be administered to the patient to control sepsis and to raise the blood pressure to save the kidney and liver from being damaged which was most important for the treatment of Amarjit Kaur.
28. The learned counsel for the appellants argued that the onus lies on the complainant to prove the medical negligence on the part of the respondent hospital/doctor. It was also submitted that the complainant is to lead some expert evidence to prove that the respondent doctor/hospital has committed medical negligence. In the present case, the appellants have not examined any doctor to prove if the respondent doctor had committed medical negligence. We, however, do not find any merit in this contention. 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 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 First Appeal No.721 of 2007 17 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 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."
29. 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)".
30. 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 is not essential for the complainant to examine expert evidence if the medical negligence on the part of the respondents is otherwise proved. 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 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 First Appeal No.721 of 2007 18 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 For a without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these For a. 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."
31. In view of the above discussions, we are of the opinion that the learned District Forum rightly allowed the complaint, the impugned order is perfectly legal and valid and does not call for any interference. The appeal filed by the OP-appellants is, accordingly, dismissed with costs. Litigation costs are assessed at Rs.10,000/-.
32. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 23.5.2007. This amount of Rs.25,000/- with interest, if any, accrued thereon be remitted by First Appeal No.721 of 2007 19 the registry to the respondent-complainant by way of a crossed cheque/demand draft after the expiry of 45 days.
Copies of the orders be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER September 18, 2012.
Paritosh