Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he was having back pain in his spinal cord and for this purpose, the complainant approached the Opposite Parties hospital and the treating doctor suggested MRI and after MRI, Opposite Party No.2 doctor advised to give injection in his spinal cord and told that giving of injection would save the patient for undergoing operation of his spinal cord. The Opposite Party No.2 gave injection, but the lower part of the body became non functional due to which latrine and bathroom of the complainant has stopped and further the nervous system of the complainant became weak and on this, he advised that immediate operation of the complainant would be performed and asked to get him operated from Bassi Hospital, Ludhiana on 21.10.2017 to which the ccomplainant shown his inability and at this, Opposite Party No.2 in a rude manner asked the complainant either to get the operation done by spending Rs.1,80,000/- from Bassi Hospital, Ludhiana or to take the patient to his home, but the complainant could not get the operation done from Bassi Hospital, Ludhiana as the complainant has no funds and the Opposite Parties have illegally charged Rs.45,000/- from the complainant. Rather the complainant got treatment from Global Heart hospital Ludhiana and spent Rs.1 lakh on his treatment and the complainant is still bed ridden. All has been happened due to sole negligence of Opposite Party No.2. As such, due to the negligence and carelessness on the part of the Opposite Parties, the complainant suffered huge loss which can not be compensated in the shape of money. Alleging deficiency in service, the complainant has filed the instant complaint. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties may be directed to refund the amount 1,45,000/- alongwith interest and also to pay Rs.3 lakhs as compensation for the damages and losses suffered by the complainant due to Unfair Trade Practice and due to negligence and deficiency in service on the part of Opposite Party besides Rs.22,000/- as litigation expenses.
3. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that on 21.10.2017 the complainant approached the Opposite Parties with complaint of back pain and at that time, Dr.Deepak Goyal, Ortho Surgeon was present and he treated the complainant and after getting the MRI test, said doctor advised to take the complainant to some big hospital for operation. The family members told that they have no sufficient funds for operation and requested to take immediate measure for relieving the pain of the complainant. As such, it was only on the request of the complainant and his family members and with their consent, the injection was given for relieving the pain of the complainant and hence, there is no deficiency in service or Unfair Trade Practice on the part of the Opposite Parties. On merits, the Opposite Parties took up almost the same and similar pleas as taken by them in the preliminary objections. Hence, the instant complaint is not maintainable and the same may be dismissed with costs.
4. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.CW1/A, Ex.CW2/B alongwith copies of documents Ex.C1 to Ex.C23 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit Ex.RA alongwith copies of documents Ex.R1 to Ex.R22 and closed the evidence.
6. We have heard the ld.counsel for the parties, perused the written submissions of the Opposite Parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainant as well as Opposite Party have mainly reiterated the facts as narrated in the complaint as well as in the written statement. We have perused the rival contentions of the parties. It is not the denial of the case that complainant approached the Opposite Parties hospital due to back pain in his spinal cord and in the Opposite Party hospital, the Opposite Party No.2 doctor gave injection in the spinal cord of the complainant. The case of the complainant is that after injection, the lower part of the body became non functional due to which latrine and bathroom of the complainant has stopped and further the nervous system of the complainant became weak and this was happened due to sole negligence of Opposite Party No.2. As such, due to the negligence and carelessness on the part of the Opposite Parties. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the complainant on the ground that admittedly on 21.10.2017 the complainant approached the Opposite Parties with complaint of back pain and at that time, Dr.Deepak Goyal, Ortho Surgeon was present and he treated the complainant and after getting the MRI test, said doctor advised to take the complainant to some big hospital for operation. The family members told that they have no sufficient funds for operation and requested to take immediate measure for relieving the pain of the complainant. As such, it was only on the request of the complainant and his family members and with their consent, the injection was given for relieving the pain of the complainant and hence, there is no deficiency in service or Unfair Trade Practice on the part of the Opposite Parties.
8. After filing the instant complaint before this District Consumer Forum, ( now Commission), this District Consumer Commission vide its order dated 02.01.2018 sought the report of Civil Surgeon, Ludhiana and required to constitute a Board of Doctors who will examine the case and submit their report qua alleging negligence. Accordingly, a report from Civil Surgeon, Ludhiana has been received vide no.G.M./2018/287 dated 21.05.2018 which is placed on record as Ex.R1. Perusal of the report shows the Medical Board have submitted its detailed report (Ex.R2), in which it has been held that if the injunction is given by Dr.Deepak Goyal, then he is authorized to give the injection and in this case, there is no negligence on the part of Dr.Deepak Goyal. But the case of the complainant is that the injunction is given by Dr.Dev Dutt Bhakhri, Opposite Party No.2 and not by Dr.Deepak Goyal. But with regard to giving the injunction by Dr.Dev Dutt Bhakhir, Opposite Party No.2, there is no such mention about this in the report of Medical Board. On the other hand, to prove his case, the complainant besides his own affidavit has also proved Jasbir Kaur CW1 by way of affidavit in which she has categorically deposed that Opposite Party No.2 has given the injection to the complainant in her presence and kept the complainant under observation for three hours and thereafter the Opposite Party No.2 disclosed that the lower part of the body became non-functional due to which latrine and bathroom of the complainant has stopped and further told that the nervous system of the complainant became weak. On the other hand, Opposite Parties have failed to prove any iota of evidence on record that said Dr.Dev Dutt Bhakhri, Opposite Party No.2, is a qualified doctor to inject such injection in the spinal cord. Moreover, the Medical Board also kept mum regarding the qualification of said Dr.Dev Dutt Bhakhri, Opposite Party No.2 or whether he was competent to give such injunction in the spinal cord of the complainant because due to giving such wrong injunction, the lower part of the body became non-functional due to which latrine and bathroom of the complainant has stopped and further told that the nervous system of the complainant became weak and he is bed ridden forever. With regard to negligence on the part of the treating doctor (Opposite Party No.2) who gave wrong injection in the spinal cord of the complainant, this news was also published in the different newspapers i.e. in Hindi, Punjabi and English language, the copies of which are placed on record Ex.C7, Ex.C8 and Ex.C9. Furthermore, the onus to prove such assertion of the Opposite Parties that the injection is not given by Dr. Dev Dut Bhakri, Opposite Party No.2 is upon the Opposite Parties because at that time, the complainant/ Patient was not in a position to prove such assertion. Moreover, it is settled proposition that the onus to prove any fact is upon him/ her who alleges the same. Perusal of the record shows that the Opposite Party No.2 has failed to prove this fact that he did not give the injection to the complainant. Furthermore, Opposite Party No.2 has also failed to prove that he is qualified to give the injection in the spinal cord of the complainant. Moreover, a patient approaches a doctor expecting medical treatment with all the knowledge and skill that the doctor possesses to bring relief to his medical problem. The relationship takes the shape of a contract retaining the essential elements of tort. A doctor owes certain duties to his patient and a breach of any of these duties gives a cause of action for negligence against the doctor. The services of the doctors are covered under the provisions of the Consumer Protection Act, and a patient can seek redressal of grievances from the Consumer. While deliberating on the absence of basic qualifications of a doctor to practice, the Hon’ble Supreme Court of India in case titled as Poonam Verma vs. Ashwin Patel and Ors. (1996) 4 SCC 322, held that a person who does not have knowledge of a particular system of medicine but practices in that system is a quack. Where a person is guilty of negligence per se, no further proof is needed. While elaborating on medical negligence, the Apex Court observed as follows (abridged): Negligence is a ‘tort’. Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as ‘implied undertaking’ by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. In the case of Bolam V. Friern Hospital Management Committee, (1957) 2 All ER 118, McNair, J. summed up the law as the following:
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill: It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he confirms with one of these proper standards, then he is not negligent.”
9. The question of medical negligence also came up for hearing before the Hon’ble Apex Court in Kusam Sharma & Others. Vs. Batra Hospital & Medical Research Centre 2010 AIR (SC) 1050 wherein following principles were laid down as under:-
The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Moreover, medical practitioner would be liable where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
The Hon'ble Supreme Court in “Smt. Savita Gar Vs. The Director National Heart Institute 2004 CTJ 1009 (SC)(CP)=(2004) 8 SCC 56”, has held that :-
“It is the common experience that when a patient goes to a private clinic, he goes by the reputation of the clinic and with the hope that proper care will be taken by the Hospital authorities. It is not possible for the patient to know that which doctor, will treat him. When a patient is admitted to a private clinic/hospital, it is hospital/clinic which engages the doctors for treatment., They charge fee for services rendered by them and they are supposed to bestow the best care.”
10. Furthermore, at the time of arriving and admission of the complainant in the hospital of the Opposite Parties, there was nothing on record that the complainant was unable to walk on his feet or was unable to do any physical activities before administration of injection wrongly to him. The plea of the Opposite Parties that they have given the injection to the complainant/ patient on the request of the patient and his family members is not sustainable as the doctor is meant to give treatment as per the medical requirement and not as per the request of the patient or his family members. Perusal of the letter Ex.R16 shows that in this letter, it is written that after giving injection the patient may or may not be cured. But it is not mentioned in this letter that after giving injection, the patient may be bed ridden for ever/ for whole of his life, because in the instant case, after giving injection in the opposite parties hospital, the lower part of the body of the complainant became non-functional due to which control of latrine and bathroom of the complainant has almost lost and further the nervous system of the complainant became weak and he is now almost bed ridden forever. Furthermore, it is not denied by the Opposite Parties that at the time of arrival of the complainant in the hospital of the Opposite Parties, he was in his good mental sense and he came in the hospital at his own feet, meaning to say that he could give his consent himself for giving the injection aforementioned by Opposite Party No.2, but the Opposite Parties did not take the consent of complainant/ patient for giving such injection, rather allegedly took the signatures of the son of the complainant on the letter Ex.R16 which is invalid. Consent is a legal requirement of medical practice and not a procedural formality. Getting a mere signature on a form is no consent. If a patient is rushed into signing consent, without giving sufficient information, the consent may be invalid, despite the signature. Often medical professionals either ignore or are ignorant of the requirements of a valid consent and its legal implications. The doctor before performing any procedure must obtain patient's consent. No one can consent on behalf of a competent adult. In case titled as Dr. Ramcharan Thiagarajan Facs versus Medical Council of India, decided on 3rd April, 2014, Hob’ble Karnataka High Court has awarded disciplinary action to the surgeon for not taking a proper informed consent for the entire procedure of kidney and pancreas transplant surgery from the patient. In exercise of the powers conferred under Section 20A read with Section 33(m) of the Indian Medical Council Act, the MCI has framed the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, inter alia, prescribing the inclusive definition of 'professional misconduct', the appropriate council for dealing with cases of professional misconduct, provisions of appeal etc. The relevant portion of the Ethics Regulations, 2002 relevant for the present controversy is quoted hereunder:
"7. MISCONDUCT:
The following acts of commission or omission on the part of a physician shall constitute professional misconduct rendering him/her liable for disciplinary action:
...
7.16 Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be.
11. In the instant case, as mentioned above, at the time of arriving and admission of the complainant in the hospital of the Opposite Parties, there was nothing on record that the complainant was unable to walk on his feet or was capable to do any physical activities, but the Opposite Parties did not bother to take the consent of complainant/ patient himself and hence committed the offence of 'professional misconduct' as mentioned supra under Section 20A read with Section 33(m) of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.
12. Moreover, as per the requirement of Consumer Protection Act, 2019, compensation can be granted to the complainant in the event, if injury is caused to the complainant due to negligence of the Opposite Parties, this is a clear cut case of causing injury to the patent by medical negligence as the injection injected wrongly by the opposite parties caused physical as well as mental injury to the complainant resulting in losing control over his body and mind, the same became partly non functional. Hence, the complainant is entitled to the compensation as prayed for.
13. In view of the facts, circumstances and legal position, as has been discussed herein above, we have no hesitation to conclude that the Opposite Parties are liable for rendering deficient professional service to the complainant and causing injury to him by negligent act and conduct of the opposite parties and accordingly we allow the complaint of the complainant.
14. Now come to the quantum of compensation. The complainant has prayed before this District Consumer Commission to direct the Opposite Parties to refund the amount of Rs.1,45,000/- which he spent on his treatment alongwith interest @ 12% per annum from the date of payment till its actual realization and also claimed Rs.3 lakhs as compensation on account of medical negligent and deficient services on the part of the Opposite Parties or any other relief to which this District Consumer Commission may deem fit be also granted.
15. Hence, keeping in view the facts and circumstances of the case, the complaint is allowed and we direct the Opposite Parties to refund the amount of Rs.1,45,000/- (Rupees one lakh forty five thousands only) spent by the complainant on his treatment. The Opposite Parties are also directed to pay Rs.2,50,000/- (Rupees two lakhs fifty thousands only) to the complainant on account of lump sum compensation for causing him injury for remaining life for injecting the injection wrongly injected in the spinal cord of the complainant. The Opposite Parties are further directed to pay the awarded amount alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 22.12.2017 till its actual realization. Compliance of this order be made by the Opposite Parties within 60 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
16. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same.
Announced in Open Commission at Camp Court, Ludhiana.
Dated:28.06.2022.
