State Consumer Disputes Redressal Commission
1.Manish Nirmal Son Of Sh. Arjun Lal ... vs 1. Dr. (Smt.)Alka Yadav C/O Shanti ... on 11 September, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.129 of 2010 Date of Institution: 02.02.2010 Date of Decision: 11.09.2012 1. Manish Nirmal son of Sh. Arjun Lal Sharma 2. Kumari Nandita minor daughter of Manish 3. Luv minor son of Manish Nirmal 4. Kush minor son of Manish Nirmal, minors represented through natural guardian and father Manish Nirmal All residents of Singhana Road, Narnaul. Appellants (Complainants) Versus 1. Dr. (Smt.)Alka Yadav c/o Shanti Hospital Nizampur Road, Narnaul District Mohindergarh (Haryana). 1A. The Oriental Insurance Company Ltd. through Branch Manager, Mohindergarh Road, Narnaul, Tehsil Narnaul District Mohindergarh (Insurer of Shanti Hospital & Research Centre). 2. Santokba Durlabhji Memorial Hospital, Bhawani Singh Marg Jaipur (Rajasthan) through its Director. 3. Dr. (Smt.) Santosh Yadav, Physician Santokba Durlabhji Memorial Hospital, Bhawani Singh Marg Jaipur (Rajasthan). 4. Dr. B.N. Bhargav Physician, Santokba Durlabhji Memorial Hospital, Bhawani Singh Marg Jaipur (Rajasthan). 5. Dr. Rajeev Paatni, Physician, Santokba Durlabhji Memorial Hospital, Bhawani Singh Marg Jaipur (Rajasthan). 6. Dr. Dinesh Aggarwal, Physician, Santokba Durlabhji Memorial Hospital, Bhawani Singh Marg Jaipur (Rajasthan). Respondents (Ops) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri J.P. Sharma, Advocate for appellants. None for respondent No.1. Shri Ajay Pathak, Advocate for respondents No.2 to 6. O R D E R
Justice R.S. Madan, President:
Complainants have come up in appeal against the orders dated 15.09.2008/24.12.2009 whereby the complaint filed by them alleging medical negligence and deficiency in service against the respondents-opposite parties was dismissed.
The case of the complainants before the District Forum was that Lalita Devi wife of the complainant No.1 and mother of complainants No.2 to 4 was pregnant in June, 2005 for the second time. Lalita got checked herself from the opposite party No.1 Dr. Alka Yadav of Shanti Hospital, Narnaul. On 13.03.2006 Lalita was admitted in the hospital of the opposite party No.1 for delivery upon which the opposite party No.1 told that the patient was well and there was no need to worry. Dr. Alka Yadav completed all the formalities for delivery. Thereafter the doctor told to the complainant that Lalita had developed jaundice and therefore she did not effect the delivery on 13.03.2006 and kept Lalita admitted in her hospital till 15.3.2006. When the condition of the patient deteriorated, the opposite party No.1 referred the patient to Jaipur Hospital. Complainant No.1 got admitted the patient at Jaipur in the hospital of the opposite party No.2 Santokba Durlabhji Memorial Hospital, Bhawani Singh Marg, Jaipur on 15.03.2006 at 7.00 A.M. where the patient was examined and assured that the patient was recovering her health. At about 1.30 P.M. the nurse came out with twins and carried them in Nursing Room and complainant No.1 was informed that th twins had born after operation and that the twins as well as their mother was healthy. At about 3.00 P.M., the wife of the complainant No.1 was brought outside the delivery room by the opposite party No.3 and carried her into female ward. According to the complainants, at that time the patient was down with pain and complainant No.1 was told that because of twins some pain was natural and that she would recover within a short while but the bleeding did not come to an end and condition of Lalita Devi deteriorated at 5.00 P.m. The patient was admitted to ICU. On 17.03.2006 the opposite party No.3 told the complainant No.1 that second operation was required. On 18.3.2006 at about 7.00/8.00 P.M. the opposite party No.4 performed second operation of the patient Lalita Devi and the doctors told that it was a successful operation. The patient was kept in ICU for about 13/14 days and complainant No.1 was continued to be assured regarding recovery of the patient. All of a sudden on 10.04.2006, the opposite parties No.5 and 6 told the complainant No.1 that patient was being discharged despite the fact that the patient was not looking well. But because of odd hours on the request of the complainant No.1, the opposite parties No.5 and 6 allowed the patient to remain in the hospital during the night but her discharge card was prepared on 10.04.2006 itself. The complainant No.1 brought his wife to Narnaul on 11.04.2006 and continued to consume medicines prescribed by opposite parties No.5 and 6. During the intervening night of April 13/14, 2006 at about 3.00 A.M. wife of the complainant No.1 expired and she was cremated on 14.04.2006. According to the complainants, death of Lalita Devi suffered due to the negligence and deficiency in service on the part of the opposite parties. Thus, the complainants sought compensation of Rs.16,60,000/- alongwith interest @ 12% per annum.
Upon notice, the opposite parties appeared and contested the complaint. Opposite Party No.1 in her written statement stated that the patient was regularly taking treatment from her w.e.f. December, 2004 till 13.03.2006. The patient was initially treated for her sequential infertility and thereafter conceiving, she was regularly followed for ANC. When the patient was treated as Out Door Patient, the prescription was given to the patient in original. During the ANC USG examination was conducted on 17.08.2005 and twin live pregnancy was confirmed and expected date of delivery i.e. 30.03.2006 was calculated. The original report was given to the patient and upto 6.3.2006 everything was as per the expectation of the opposite party No.1.
The patient was brought to the opposite party No.1 on 13.3.2006 in the evening hours at about 7.00 P.M. with the complaint of backache, occasional pain abdomen and increased frequency of micturition since last one day. The patient was having history of amenorrhea for the last 8 months with twin pregnancy and first delivery with the help of surgical procedure and thereafter she underwent D&C for missed abortion at another hospital. The patient was examined physically and clinically and systematically and it was revealed that she had slight increase in her blood pressure alongwith icterus and that she was not in active labour. Hence, provisions/differential diagnosis of G3 P1 A1 with previous LSCS with twin pregnancy of 36 weeks and 5 days with PIH and jaundice. Requisite investigations were prescribed/performed and the patient was hospitalized at about 8.30 P.M. in her best interest for complete monitoring and further investigation after explaining the facts to complainant No.1 and her attendants/relatives. The patient was stable over night, fully conscious and well oriented. On the next day, some necessary tests were performed and on 14.03.2006 at about 6.30 P.M. the opposite party No.1 after getting the result of investigations, became able to know the fact that the patient might be suffering from A.P.L.P. known as A.F.L.P. Upto that time, both the babies in the womb of the patient were healthy and it was decided by the opposite party No.1 to shift the patient to a higher centre. Keeping in view the condition of the patient and babies in the womb, the patient was referred to Jaipur with the consent of the complainant No.1 and other relatives of the complainant which was for better treatment of the patient and till that time the patient was in good condition. Thus, the opposite party No.1 stated that there was no error on her part in treating the patient.
Opposite party No.1-A in its written statement stated that it had not violated any terms and conditions of the policy. It was further stated that the complainants were not the consumers of the Insurance Company-opposite party No.1A.
Opposite Parties No.2 to 6 in their joint written statement stated that the wife of the complainant was suffering from jaundice since before she was brought to their hospital and at the time of admission itself, the complainant No.1 and his relatives/attendants were told about the serious condition of the patient. The patient was diagnosed to have been suffered from Acute fatty liver pregnanchy, Toxemia of pregnancy, hepatic encepualopathy diagnosis. Successful operation was performed and after supervision of the babies, they were kept in nursery, the blood was given and alla the steps between the dates 15 to 17 were taken as per the standsards of the medical science. CT scan was got done when despite all efforts bleeding continued. However, the relatives of the patient had refused for operation and after the consent the operation was performed on 18.3.2006 without any delay to stop the bleeding and it was successful operation. The patient was admitted in ICU. On 01.04.2006 the patient was shifted to the ward. The patient was discharged at the request of the attendants of the patient on 10.04.2006 but they left on 11.04.2006 after payment of bills. It was pleaded that the District Forum, Narnaul had no territorial jurisdiction with respect to the treatment given by the opposite parties No.2 to 6 and prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, President of the District Forum finding no substance in complainants version dismissed the complaint vide order dated 15.09.2008. However, lady member Smt. Kumudani Srivastva, vide order of the same date allowed the complaint and issued following direction:-
Thus in my view the complainants are entitled for the total compensation of Rs.6,60,000(Rs.5,40,000/- on account of death of deceased Lalita Devi, Rs.50,000/- as loss of consortium suffered by the husband of the deceased, Rs.50,000/- on account of lot of pain, suffering, agony suffered by the complainants and Rs.20,000/- on account of litigation charges). So, the opposite parties are directed to pay Rs.6,60,000/- and further to pay the interest @ 9% from the date of death of Smt. Lalita Devi i.e. 14.04.2006 for which the complainants also entitled till payment.
In view of the dissenting view of the President as well as the Lady Member stated herein before, the file was put up before the third member Shri Azad Singh Ghanghas on 24.12.2009, who agreed with the view taken by President of the District Forum whereby the complaint was dismissed.
Aggrieved against the majority view of President and Shri Azad Singh Ghanghas, the complainants have come up in appeal.
Arguments heard. File perused.
At the very outset, so far as the claim of the complainants against the opposite parties No.2 to 6 is concerned, the treatment was given by them at Jaipur and therefore the complaint against them was not maintainable at Narnaul.
From the record it is established that the opposite parties have produced on the record expert report Ex.R-53 of Dr. Mitra saxena, MBBS, M.C. (Obs.& Gynae) c/o Ashwini Saxena Hospital, Rewari and her affidavit Ex.R-54. The Expert Report Ex.R-55 of Dr. Shri Ram Aggarwal and his affidavit Ex.R-56 were also produced. Both the above stated expert reports Ex.R-53 and Ex.R-55 are supported with affidavits Ex.R-54 and Ex.R-56 wherein it was opined that there was no medical negligence on the part of Dr. (Mrs.) Alka Yadav. On the other hand, the complainants have miserably failed to establish any evidence rebutting the evidence produced by the opposite parties. Thus, for want of cogent and convincing evidence, the opposite party Dr. Alka Yadav cannot be blamed merely on the basis of affidavit of the complainant. It has come on the record that during the period the patient remained admitted with the opposite party No.1, the patient was given better treatment as per medical norms and merely that the patient did not get any relief from the treatment given by the opposite party No.1, the same cannot be termed as medical negligence and deficiency in service. Reference in this is made to the following authoritative pronouncement:-
Honble Supreme Court in case cited as Kusum Sharma and others versus Batra Hospital & Medical Research Centre and others, 2010 ACJ 1444, has held that:-
(1) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
(II) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
(III) The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
(IV) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
(V) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
(VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
(VII) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
(VIII) It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
(IX) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
(X) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
(XI) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
In Kusum Sharmas case (Supra) it has been clearly observed by the Honble Supreme Court that the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. Thus, the instant case is fully covered by Kusum Sharmas case (Supra).
In MARTIN F. DSOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC), Honble Supreme Court has observed that:-
When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.
In para No.47 of MARTIN F. DSOUZAs case (Supra) it has been held that:-
Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
Honble National Consumer Commission in case cited as Smt. Sajini, Major Versus Chaya Nursing Home & Ors, 2012(1) CPR 111 (NC) has observed that the complication arose after the treatment given by a doctor, cannot be termed as medical negligence.
In a latest judgment cited as Smt. Narangiben Subodhchandra Shah through her LRs versus Gujarat Research and Medical Institute Popularly known as Rajasthan Hospital & Ors, 2012(3) CPR 112 (NC), Honble National Consumer Commission has observed that every medical failure is not medical negligence.
The ratio of the above cited judgments fully applies to the instant case. Thus no case for interference in the impugned orders dated 15.09.2008 passed by President and order dated 24.12.2009 passed by Shri Azad Singh Ghanghas, Member of the District Forum while dismissing the complaint is made out.
Hence, this appeal is dismissed being devoid of any merit. Consequently, the order dated 15.09.2008 passed by Smt.Kumudani Srivastva, whereby the complaint was allowed is hereby set aside.
Announced: Justice R.S. Madan 11.09.2012 President B.M. Bedi Judicial Member