State Consumer Disputes Redressal Commission
Sofat Infertility & Women Care Centre vs Philomina Wife Of Sh. R.K. Masih, on 1 February, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.1148 of 2005
Date of institution : 5.9.2005
Date of decision : 1.2.2011
Sofat Infertility & Women Care Centre, 358, Hira Singh Road, Near Kumahar
Mandi Chowk, Civil Lines, Ludhiana through Dr. Sumita Sofat.
.......Appellant
Versus
Philomina wife of Sh. R.K. Masih, resident of House No.601-L, T-2, Sector
No.2, Talwara Township, District Hoshiarpur.
......Respondent
First Appeal against the order dated 7.6.2005 of
the District Consumer Disputes Redressal Forum,
Ludhiana.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellant : Shri G.S. Ghuman, Advocate. For the respondent : None.
JUSTICE S.N. AGGARWAL, PRESIDENT:
Dr. Sumita Sofat appellant was running the clinic in the name of Sofat Infertility & Women Care Centre, near Kumahar Mandi Chowk, Civil Lines, Ludhiana. She had issued pamphlets and also published advertisements in the newspapers that she was specialized for the removal of fibroid (rasoli) of the patient without surgery and without pain.
2. It was further pleaded that the respondent was having severe pain in her stomach in March 2001. She got conducted medical tests/CT scan and it was found that there was fibroid (rasoli) which was troubling her. She happened to read the publicity material of the appellant and was allured by it. On 7.4.2001 she reached the hospital of the appellant who demanded Rs.500/- as consultation First Appeal No.1148 of 2005. 2 fee. It was paid by the respondent to her for which the appellant had issued the receipt.
3. It was further pleaded that after consultation the appellant told the respondent that she was to undergo seven different medical tests in her laboratory. The respondent deposited a sum of Rs.6,000/- on demand as charges for the medical tests. The medical tests were conducted. It took about three hours. The appellant assured the respondent that fibroid (rasoli) would be removed without surgery and without causing any pain to the respondent and demanded a sum of Rs.40,000/-. The respondent was advised to come after one week.
4. It was further pleaded that on 15.4.2001 the appellant again went to the hospital of the appellant and deposited a sum of Rs.40,000/- (Rs.20,000/- as medical fee and Rs.20,000/- for balloon). The appellant charged another amount of Rs.2,000/- for two doctors, namely, Dr. Bhupinder Singh, MBBS (Anaesthetist) and Dr. B.K. Gupta (Physician).
5. It was further pleaded that the operation was performed by the appellant for removal of the fibroid. The appellant told the respondent and her husband that the latest treatment was being given to the respondent which would not need her admission in the hospital. Then the respondent was taken to another room where the respondent remained lying for about four hours. Thereafter the respondent was brought back from the operation theatre and the appellant told the husband of the respondent that fibroid (rasoli) was removed from the uterus of the respondent and she would be alright within one or two hours.
6. It was further pleaded that however the respondent continued having severe pain. It was brought to the notice of the appellant. The appellant told her and her husband that she will have to bear that pain for one or two hours only and thereafter she would be normal. The appellant advised pain killers to her. The respondent and her husband went back to their home but on the way the First Appeal No.1148 of 2005. 3 respondent suffered severe pain even after taking the pain killer. The husband of the respondent rang up the appellant on phone but the appellant advised combiflam tablet. The respondent complied with it but the pain did not subside. Finding no alternative the respondent was again taken to a local hospital at Talwara by her husband who had advised the husband of the respondent to take her to PGI, Chandigarh or to any other specialized hospital. The husband of the respondent took her to a hospital at Jalandhar as it was nearer and immediate treatment was needed.
7. It was further pleaded that on 29.5.2001 the respondent along with her husband went to Tagore Hospital, Jalandhar City. The respondent was admitted. She was advised CT scan and other medical tests. The respondent got these medical tests conducted. She was told by Dr. Ravi Seth, surgeon of that hospital that the respondent was having fibroid (rasoli) in the uterus. The respondent and her husband were shocked to hear it as it was already allegedly removed by the appellant after charging a sum of Rs.48,000/- but the fibroid was still there. It, therefore, revealed that the appellant had cheated the respondent and her husband and had extracted money without medically treating the respondent properly. The respondent made the payment of Rs.25,000/- to the doctors of Tagore Hospital, Jalandhar for conducting the surgery for the removal of fibroid (rasoli). The respondent made the payment. The surgery was performed by Dr. Ravi Seth and fibroid along with the uterus were removed by the doctor from the person of the respondent on 1.6.2001. Thereafter the respondent got the relief and the respondent was discharged on 8.6.2001. She was also told by Dr. Ravi Seth that the appellant had not removed anything from the uterus and the fibroid was still there.
8. It was further pleaded that the respondent remained under severe pain from 15.4.2001 till July 2001. She had spent an amount of Rs.25,000/- on her subsequent surgery in Tagore Hospital, Jalandhar and another amount of First Appeal No.1148 of 2005. 4 Rs.25,000/- on medicines. She had also spent a sum of Rs.6,000/- as transport charges and another amount of Rs.10,000/- on purchasing 10 units of blood. The appellant had deceived the respondent with an intention to extract money from her. Hence the complaint for the recovery of Rs.3,00,000/- as compensation on account of physical harassment and mental agony suffered by the respondent from her hands. After adding the medical expenditure she claimed total amount of Rs.4,25,800/- from the appellant.
9. The appellant filed the written reply. It was admitted that the respondent had come to the hospital of the appellant but it was denied if she had undergone seven medical tests or if she had made the payment of Rs.6,000/- as medical test charges. Those test reports have not been placed on the file.
10. It was pleaded that in fact the respondent was suffering from excessive menstrual bleeding which in medical terms was known as MENORRHAGIA. The primary reason of this menstrual bleeding was that the endometrium (inner layer) of the uterus got thickened. The safe and effective treatment available throughout the world was U.B.T. (Uterine Balloon Therapy) which treats the inner lining of the uterus called endometrium. The inner lining of the uterus was known as endometrium while the outer lining i.e. muscle layer is called myometrium. The cost of balloon was more than Rs.20,000/-. The procedure could be performed in half-an-hour and did not require any hospital stay.
11. It was specifically denied if the disease of the respondent was identified as fibroid or if the appellant had assured the appellant that her fibroid would be removed without surgery and without pain or if the appellant had demanded a sum of Rs.40,000/- as charges for the removal of fibroid as alleged by the respondent. It was admitted that the respondent had come to the hospital of the appellant on 15.4.2001 for the treatment of MENORROHAGIA (excessive bleeding). The respondent herself was a nurse. The situation was explained to her. She herself had purchased the 'Therma Choice Balloon' costing about First Appeal No.1148 of 2005. 5 Rs.20,000/-. The appellant had charged only a sum of Rs.6,000/- as his medical fee including the charges for medical tests. The respondent herself had paid the fee to Dr. Bhupinder Singh (Anaesthetist) and Dr. B.K. Gupta (Physician).
12. It was also specifically denied if the procedure was adopted by the appellant for the removal of fibroid. In fact the Uterine Ballon Therapy procedure was performed for the treatment of MENORRHAGIA (excessive bleeding). It was successfully performed and thereafter the respondent was kept for 4 hours under observation. Some medicines were prescribed to her and she was allowed to go back home.
13. It was denied if the appellant had told the respondent that her fibroid was removed from the uterus. Prescription slip Annexure-B was given. The respondent had not complained of any pain. The respondent had also taken away the medical test reports with her and had failed to file with the complaint. The antibiotics were prescribed to the respondent for seven days but it appeared that the respondent failed to follow the prescription.
14. It was denied if the respondent had gone to the local hospital at Talwara or if she was advised to go to the PGI, Chandigarh or to any other specialized hospital or if she had decided to go to a hospital at Jalandhar. It was also denied if the respondent had gone to the Tagore Hospital, Jalandhar City on 29.5.2001 or if she was admitted there or that CT scan or other medical tests were conducted on her person as the respondent has not filed any medical test reports. It was denied if Dr. Ravi Seth, Surgeon of Tagore Hospital, Jalandhar had told the respondent if there was fibroid in her uterus. It was also denied if the appellant had charged a sum of Rs.48,000/- from the respondent or if she was treated by her for fibroid. It was also denied if the respondent had requested Dr. Ravi Seth for the removal of her uterus or if she had paid a sum of Rs.25,000/- to Dr. Ravi Seth for it or if the surgery was performed on her person on 1.6.2001 or if she was discharged from the Tagore Hospital, Jalandhar on 8.6.2001 after the First Appeal No.1148 of 2005. 6 removal of fibroid. It was also denied if the appellant had committed any negligence in conducting the UBT procedure.
15. It was further pleaded that the appellant was a well qualified, competent and experienced doctor holding graduation degree in medicine and surgery. He had also acquired special expertise in treating such like patients. It was also denied if in middle of October 2001 the respondent along with her husband had come to the hospital of the appellant or if they had demanded a sum of Rs.4,25,800/- from the appellant. In fact neither the respondent nor her husband had come to the hospital of the appellant after 15.4.2001. It was denied if there was any medical negligence on the part of the appellant. Dismissal of the complaint was prayed.
16. The respondent filed her affidavit dated 26.12.2001 and the affidavit of her husband R.K. Masih dated 29.10.2002. She also proved documents Annexure-A to Annexure-N.
17. On the other hand, the appellant filed her affidavit dated 16.12.2002. She also proved documents Ex.R-1 to Ex.R-5.
18. After considering the pleadings of the parties and the affidavits/documents placed on file by them, the learned District Forum accepted the complaint partly vide impugned order dated 7.6.2005 and directed the appellant to make the payment of Rs.50,000/- to the respondent as compensation.
19. Hence the appeal.
20. The submission of the learned counsel for the appellant was that the appellant had adopted conservative procedure instead of the procedure of surgery. Unfortunately the conservative treatment failed to succeed but there was no medical negligence on the part of the appellant. Hence it was prayed that the appeal be accepted and the impugned order dated 7.6.2005 be set aside. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as First Appeal No.1148 of 2005. 7 "Martin F. D'Souza vs. Mohd. Ishfaq" AIR 2009 SUPREME COURT 2049 particularly paragraphs 41 and 42 of this judgment.
21. Record has been perused. Submissions have been considered.
22. The admitted facts are that the respondent had come to the hospital of the appellant on 7.4.2001. This fact is admitted by the appellant. The respondent had made the payment of Rs.500/- as consultation fee to the appellant. The receipt of this amount of Rs.500/- dated 7.4.2001 has been proved by the respondent as Annexure-A. As per the version of the respondent her disease was identified as fibroid (rasoli) in the uterus and she was advised to come again on 15.4.2001.
23. It is also admitted by the appellant that the respondent had come to her hospital on 15.4.2001 but it was denied if she had made the payment of Rs.40,000/- to the appellant and Rs.2,000/- as fee of the other two doctors, namely, Dr. Bhupinder Singh, MBBS (Anaesthetist) and Dr. B.K. Gupta (Physician). The appellant, however, admitted that she had charged only a sum of Rs.6,000/- from the respondent as medical fee for herself including the charges for the medical tests. However the respondent herself had made the payment to Dr. Bhupinder Singh, MBBS (Anaesthetist) and Dr. B.K. Gupta (Physician). It was also denied if the appellant had charged a sum of Rs.6,000/- separately as medical test charges.
24. But the fact remains that the respondent had charged a sum of Rs.6,000/- from the respondent which included her medical fee also. Therefore the respondent was a consumer qua the appellant.
25. The appellant had allegedly performed the treatment and removed the fibroid (rasoli) and it was so told to her.
26. But the version of the appellant was that the disease of the respondent was identified as excessive menstrual bleeding which was known as MENORRHAGIA. The primary reason for this excessive menstrual bleeding First Appeal No.1148 of 2005. 8 was endometrium (inner layer) of the uterus got thickened. The safe and effective treatment available throughout the world for this disease was U.B.T. (Uterine Balloon Therapy). The cost of the balloon was more than Rs.20,000/- which was brought by the respondent herself.
27. Not only the appellant asserted that the disease of the respondent was MENORRHAGIA (excessive menstrual bleeding) but she also denied if the disase of the respondent was diagnosed as fibroid (rasoli) or if she had treated her for fibroid (rasoli) or if she had told her that fibroid (rasoli) was removed.
28. The appellant had even denied in para 4 of the written reply if the respondent had gone to Tagore Hospital, Jalandhar on 29.5.2001 or if she had got herself subjected to CT scan or other medical tests or if her disease was identified as fibroid (rasoli) in the uterus or if the respondent had requested Dr. Ravi Seth of Tagore Hospital, Jalandhar for the removal of her uterus or if she had paid a sum of Rs.25,000/- for conducting the surgery on 1.6.2001 or if Dr. Ravi Seth had taken out the fibroid (rasoli) or if the piece of fibroid (rasoli) was shown to the respondent by Dr. Ravi Seth or if she was discharged by Dr. Ravi Seth from Tagore Hospital, Jalandhar on 8.6.2001.
29. We are surprised by such denials made by the appellant. On the one hand, the appellant alleges that neither respondent nor her husband had come to the hospital of the appellant after 15.4.2001 and on the other hand, the appellant even dares to deny those facts which could not have been known to her about the admission of the respondent in Tagore Hospital, Jalandhar or of any surgery performed on the respondent by Dr. Ravi Seth of the Tagore Hospital, Jalandhar. It would have been a different thing if the appellant had denied these facts for want of knowledge but a total and specific denial of those facts by the appellant appears to be absurd. The appellant should not have pleaded those facts in the written statement about which she could not have any knowledge and by First Appeal No.1148 of 2005. 9 pleading those facts which on the face of it were beyond her knowledge, the appellant has lost her credibility.
30. Moreover, Dr. Bhupinder Singh, MBBS (Anaesthetist) and Dr. B.K. Gupta (Physician) were called by the appellant for her help in allegedly performing the U.B.T. They were not known to the respondent nor the respondent had gone to them. If the respondent has made the payment to Dr. Bhupinder Singh, MBBS (Anaesthetist) and Dr. B.K. Gupta (Physician), it was made by the respondent either through the appellant or on the asking of the appellant. They had worked on the asking of the appellant and not on the asking of the respondent. Therefore any payment made by the respondent to these doctors also would be deemed to have been paid to the appellant. Such a version pleaded by the appellant amounts to denial of the factual position and an effort to absolve herself from the liability which had fallen on her shoulders.
31. In order to prove that her disease was diagnosed as fibroid (rasoli) in the uterus and that she had taken the treatment from Dr. Ravi Seth in the Tagore Hospital at Jalandhar the respondent has placed on the file the reports of Tagore Hospital, Jalandhar as Annexure F, G, H and I. Annexure-F clearly reveals that the disease of the respondent was identified as a case of fibroid (rasoli) in the uterus known as hypertensive for two years. The document dated 8.6.2001 Annexure-G reveals that the respondent had made the payment of Rs.25,300/- in Tagore Hospital, Jalandhar. The medical certificate issued by Dr. Ravi Seth, Surgical Specialist of Tagore Hospital Pvt. Ltd., Banda Bahadur Nagar, Mahavir Marg, Jalandhar dated 21.7.2001 (Annexure-H) reveals that the disease of the respondent was diagnosed as DM, IHD, Fibroid uterus and other diseases. She was admitted in the Tagore Hospital, Jalandhar on 29.5.2001 and she was discharged on 8.6.2001. The respondent has also proved Annexure-I issued by Tagore Hospital, Jalandhar which reveals that the respondent had taken the medical treatment from Tagore Hospital, Jalandhar for the period from 29.5.2001 First Appeal No.1148 of 2005. 10 to 8.6.2001 and spent an amount of Rs.33,105/- and the bill was duly verified by the doctors of Tagore Hospital, Jalandhar.
32. These documents, therefore, clearly reveal that the denial of these facts by the appellant are nothing more than a fictitious denial.
33. It clearly reveals, therefore, that while the respondent was having medical problem of fibroid (rasoli) but the appellant had wrongly diagnosed it as MENORRHAGIA (excessive menstrual bleeding). It means, therefore, that the disease of the respondent was not properly diagnosed by the appellant. She was suffering from fibroid (rasoli) in the uterus while the appellant had charged the money for treating the disease of alleged MENORRHAGIA (excessive menstrual bleeding) which was not there.
34. Not only the medical record produced by the respondent from the Tagore Hospital, Jalandhar reveals that she was suffering from the disease of fibroid (rasoli) in the uterus but even the CT scan got conducted from the laboratory of the appellant Annexure-D also reveals that she had the severe pain because of fibroid (rasoli).
35. Therefore it clearly means that the appellant had started giving different treatment and had failed to properly identify the medical problem of the respondent and charged a huge amount from her.
36. So far as the judgment of the Hon'ble Supreme Court in Martin F. D'Souza's case (supra) is concerned, para 41 and 42 of the same read as under:-
"41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical First Appeal No.1148 of 2005. 11 gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
42. There is a tendency to confuse a reasonable person with an error free person. An error of judgment may or may not be negligent. It depends on the nature of the error."
37. We most humbly find that these observations of the Hon'ble Supreme Court are a law of the land but in the present case it was not a conservative treatment in place of surgery as submitted by the learned counsel for the appellant. It was a total failure on the part of the appellant in understanding the medical problem of the respondent and he had started giving a treatment for a different disease than the disease from which the respondent was suffering.
38. Therefore the medical negligence on the part of the appellant is clearly proved which kept the respondent under pain and mental tension and led him to spend a huge amount.
39. Keeping in view the discussion held above, we do not find any merit in the present appeal and the same is dismissed.
40. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 9.9.2005. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
41. Remaining amount shall be paid by the appellant to the respondent.
42. The arguments in this case were heard on 18.1.2011 and the order was reserved. Now, the order be communicated to the parties. First Appeal No.1148 of 2005. 12
43. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. AMARPREET SHARMA)
MEMBER
February 1 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER