Order by:
Sh.Amrinder Singh Sidhu, President.
1. The complainant has filed the instant complaint under section 35 of Consumer Protection Act, 2019 on the allegations that Gurpreet Singh son of the complainant was suffering from Laparoscopic rectropexy and was admitted with Opposite Party hospital on 05.05.2020 and remained there upto 09.05.2020, but in the said hospital said Gurpreet Singh could not cure as the bleeding was not stopped. Then son of the complainant gone to Civil Hospital Sri Muktsar Sahib on 12.05.2020 where the said hospital also refused to admit the patient and then said Gurpreet Singh admitted on 13.05.2020 in Shri Guru Gobind Singh Medical College, Faridkot where on 14.05.2020 he died. Further alleges that the death of Gurpreet Singh was occurred due to the negligence and carelessness on the part of the Opposite Party as the services rendered by the Opposite Party was deficient. Thereafter, the complainant approached the Opposite Party to make good the loss, but to no affect. Vide instant complaint, the complainant has sought the following reliefs.
a) To direct the Opposite Party to pay a sum of Rs.30 lakhs on account of death of Gurpreet Singh son of the complainant and also to pay Rs.50,000/- as compensation for causing her mental tension and harassment and Rs.25.000/- as costs of litigation or any other relief to which this District Consumer Commission may deem fit be also granted. Hence, the present complaint.
2. On notice, Opposite Party appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the present complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Party. In fact, the son of the complainant was not suffering from Laparoscopic rectopexy rather he was suffering from Prolapse Rectum Disease and the method adopted by Opposite Party to cure that disease was Laparoscopic rectopexy. Moreover, from the Opposite Party hospital, the patient was discharged satisfactory and at that time, there was no bleeding at all. As per the OPD slip dated 12.05.2020, the patient was not having any problem regarding the treatment given by the Opposite Party, rather the slip shows that Gurpreet Singh was having some Dyspnoea problem (difficulty in breathing) and hypotension, his oxygen saturation was 70% and plus was 112 and from the X-ray, it was revealed that he was having Bilateral Infiltrate and suggestive of ARDS. Not only this, the Civil Hospital, Muktsar also referred the patient to GGS Medical College and Hospital, Faridkot for further treatment where he died due to some other disease and not due to any reason on the part of the Opposite Party. Moreover, the patient go this treatment under Ayushman Bharat Scheme and the charges of his treatment was paid by IFFCO TOKIO company and nothing was charged from the patent or his family. Hence, there is no negligence and carelessness on the part of the Opposite Party. The Opposite Party is well qualified surgeon and is MBBS, MS and is a renowned doctor in the area and the Opposite Party has given proper treatment to the patient as per the medical tenants. Moreover, the patient was discharged from the hospital of Opposite Party satisfactorily and the death of the patient may be due to some other reasons and not due to the treatment given by Opposite Party. Before filing the present complaint, the answering Opposite Party has duly replied the legal notice served by the complainant, but the complainant intentionally and knowingly not mentioned the same in the present complaint. On merits, Opposite Party took up the same and similar pleas as taken up by them on the preliminary objections. All other allegations made by the complainant are totally wrong and specifically denied and it is, therefore, prayed that the present complaint is not maintainable and the same deserves dismissal.
3. In order to prove her case, the complainant has tendered into evidence his affidavit Ex.CW1 alongwith copies of documents Ex.C1 to Ex.C13 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, Opposite Party tendered into evidence affidavit Dr.Vikramjeet Ex.OP1 alongwith copy of document Ex.OP2 to Ex.OP4 and thereafter closed the evidence.
5. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
6. During the course of arguments, ld.counsel for the complainant as well as ld.counsel for Opposite Party have mainly reiterated the facts as narrated in the complaint as well as written reply respectively. We have perused the rival contentions of the parties and also gone through the record on file. The main contention of the complainant is that the death of Gurpreet Singh was occurred due to the negligence and carelessness on the part of the Opposite Party as the services rendered by the Opposite Party was deficient. On the other hand, the ld.counsel for the Opposite Party has repelled the aforesaid contention of the complainant on the ground that the patient was not suffering from Laparoscopic rectopexy rather he was suffering from Prolapse Rectum Disease and the method adopted by Opposite Party to cure that disease was Laparoscopic rectopexy. Moreover, from the Opposite Party hospital, the patient was discharged satisfactory and at that time, there was no bleeding at all. As per the OPD slip dated 12.05.2020, the patient was not having any problem regarding the treatment given by the Opposite Party, rather the slip shows that Gurpreet Singh was having some Dyspnoea problem (difficulty in breathing) and hypotension, his oxygen saturation was 70% and plus was 112 and from the X-ray, it was revealed that he was having Bilateral Infiltrate and suggestive of ARDS. Not only this, the Civil Hospital, Muktsar also referred the patient to GGS Medical College and Hospital, Faridkot for further treatment where he died due to some other disease and not due to any reason on the part of the Opposite Party. Further contended that Opposite Party is well qualified surgeon and is MBBS, MS and is a renowned doctor in the area and the Opposite Party has given proper treatment to the patient as per the medical tenants. Perusal of the record shows that the complainant has failed to produce any iota of evidence to prove that due to the negligence or deficient service on the part of the Opposite Party, the son of the complainant could not cure. No ingredient of negligence have either been pleaded nor any evidence was brought to prove any negligence allegedly made by Opposite Party during the course of treatment. Further, it is not denial of the case that initially, Gurpreet Singh son of the complainant was admitted with Opposite Party hospital on 05.05.2020 and remained there upto 09.05.2020 and thereafter, as per the version of the complainant that her son gone to Civil Hospital Sri Muktsar Sahib on 12.05.2020 where the said hospital also refused to admit the patient and then said Gurpreet Singh admitted on 13.05.2020 in Shri Guru Gobind Singh Medical College, Faridkot which is super speciality hospital. In matter of Rudresh Vs. Dr.Srinivas V. & Ors. Hon’ble National Commission, New Delhi in Revision Petition No. 2862 OF 2013 decided on 2.9.2015 has held that refer the patient to Hospital was the proper and bonafide and referring a patient to higher centre is not negligence. We have gone through several medical literature and Text book of Surgery, authored by Bailey and Love, which states that in some patients 'cellulitis' is observed, after IM injection. There was no deficiency in service or negligence as OP-1 took proper care, thereafter. We would like to rely upon various judgments from Hon'ble Supreme Court. In "Martin F. D'Souza Vs. Mohd. Ishfaq" AIR 2009 SC 2049" it was observed that, "Simply because a patient has not favorably 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". In Jacob Mathew Vs. State of Punjab & Anr., (2005) 6 SCC 1 the Hon'ble Supreme Court had concluded that, "a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise with reasonable competence in given case, the skill which he did possess."
7. 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:-
I. 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 V.Krishan Rao appellant (s) Vs. Nikhil Super Specialty Hospital & Another Respondents(s), Civil Appeal No. 2641 of 2010 decided on 08.03.2010 by Hon’ble Apex Court it has been laid down to the following effect:-
"A Doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art"...(See page 122 placitum `B' of the report)
18. It is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care (See page 122, placitum `A' of the report).”
8. Applying the principles of the judgements ‘supra’ to the facts of the present case, it becomes amply clear that the doctors have treated the patient in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art and as such Opposite Party can not be guilty of the negligence. Not only that, no ingredient of negligence have either been pleaded nor any evidence was brought to prove any negligence allegedly made by Opposite Party during the course of treatment. The complainant wants this District Consumer Commission to jump to the conclusion that Opposite Party was guilty of the negligence simply because of the fact that desired result could not be achieved despite getting medical treatment as prescribed by Opposite Party. We have every reason to differ with the contention of the complainant in view of the latest law laid down in V.Krishna Rao authority ‘supra’ and other relevant laws laid down in remaining authorities referred above. We are of the considered view that the complainant has miserably failed to prove any negligence on the part of the Opposite Party nor there is any evidence regarding deficiency in service on the part of Opposite Party. There is absolutely no force in the complaint and the same requires to be dismissed.
9. Hence, keeping in view the facts and circumstances of the case as well as supra judgements of Hon’ble Supreme Court of India, we find no merit in the complaint and the same stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
10. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Member in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated: 07.06.2022.
