Delhi

East Delhi

CC/247/2014

BALJEET - Complainant(s)

Versus

KUKRJA HOSPITAL - Opp.Party(s)

08 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110092

 

C.C. NO. 247/2014

 

1.	BALJEET SINGH S/o SH. BALBIR SINGH R/o 13/1, BLOCK-13, KALYANPURI, DELHI	….Complainant
Versus
1.       2.       3.	KUKREJA HOSPITAL, D-36, ACHARYA NIKETAN, MAYUR VIHAR, PH-I, DELHI-92.   Dr. V.A.S. KUMAR, KUKREJA HOSPITAL, D-36, ACHARYA NIKETAN, MAYUR VIHAR, PH-I, DELHI-92.   THE ORIENTAL INSURANCE COMPANY LTD., A-25/27, ASAF ALI ROAD, NEW DELHI-110002.	…OP1                                                                    …OP2                                                                               …OP3

 

 

Date of Institution: 11.03.2014

Order Reserved on: 27.01.2023

 Order Passed on: 08.02.2023

               

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms.Rashmi Bansal(Member)

 

Order by : Sh. S.S. Malhotra (President)

 

 

JUDGMENT

 

        By this order the Commission shall dispose off the complaint of the Complainant with respect to deficiency in service by the OP1 & OP2 in treating the complainant alleging medical negligence.

Before coming to the facts of the case it is necessary to mention that the complainant initially filed the claim against OP1, the hospital and OP2 the treating doctor, but subsequently OP1 filed an application to implead the Insurance Company as OP3 interalia stating that the hospital is duly insured with OP3 and in case any liability is to be affixed upon the OP1, the same would be  settled by OP3 and as such Vide Order dated 24/07/2015 the Insurance Company i.e. ‘Oriental Insurance Company Ltd.’ was made a party and complainant filed amended memo parties. However it is also required to be mentioned that although the complainant filed amended memo parties, yet neither it filed amended complaint nor amended the prayer clause and accordingly facts mentioned in the original complaint are being mentioned hereunder.

Brief facts stated by the complainant in the complaint are that complainant while working some paint work fell-down from the height and suffered injuries and was rushed to OP1 hospital where OP2 after examination, advised him surgery to which complainant agreed and after depositing an amount of Rs. 1 Lakh he was operated by OP2, however he was not able to stand properly after this surgery and in the month of March 2012 he visited the hospital again and met OP2 who advised him that he requires second operation and for that he has to deposit Rs. 2 Lakh otherwise he should go to government hospital but despite asking, the said doctor i.e. OP2 did not explain any reason as to why this second operation was required and why the first operation was not done properly. It is further stated an amount of Rs. 04 Lakh has already been paid to OP1 but he was not properly treated and as such there is deficiency w.r.t. treatment of his operation w.r.t. legs/injury. The complainant thereafter visited various other hospitals and he was informed by other Doctors that his first operation was done wrongly and negligently on account of which the complainant suffered several implications and was not able to stand properly, and since Doctor V.A.S Kumar i.e. OP2 could not diagnose injury properly his life has been spoiled and even he became disable. The Disability certificate as issued to him from Lal Bahadur Shastri Hospital is attached and since there is no sufficient explanation by OPs, he has filed the present complaint before this Commission alleging deficiency in service and claiming Rs.6 Lakh with interest from the OPs along with Rs.10 Lakh as compensation and Rs.25,000/- as legal expenses.    

        OPs were served and OP1 has filed its reply taking preliminary objection that present complaint is not maintainable being misconceived, groundless, frivolous and vexatious, the same is filed on unscientific and wrong assumptions and presumptions, no cause of action has arisen in favour of complaint, same has been filed to harass, blackmail, extort money from OP1, the same is bad for mis-joining of parties, has been filed against the principles as enunciated by the Hon’ble Supreme Court of India w.r.t. medical negligence & even, no case of medical negligence has been alleged. It is further stated that complainant was treated by competent doctor in the hospital and as such there was no negligence or deficiency on the part of the OPs and the complaint of complainant be dismissed.

        On merit the admission of the complainant in the hospital is not denied but it is denied that the complainant had given Rs. 1 Lakh. It is further submitted that no assurance as alleged can be given, even as per Medical Literature published from time to time. It is also denied that complainant deposited Rs.1 Lakh or such exaggerated amount rather it is stated that complainant deposited Rs.3000/- on 23/10/2011, Rs.30,000/-, & Rs.15,000/- & subsequently, Rs.10,000/- and Rs.5,000/-. It is further stated that after depositing of Rs.30,000/-, operation was performed that too after having given the consent by his father who was informed of the procedural pros & cons and complainant deliberately did not deposit the final bill with malafide intention. It is further submitted that complainant visited on 28/10/2011 and was directed to follow-up for the checkup on 31/10/2011 but he was negligent and never visited the hospital again and even he did not pay the complete bill amount. It is denied that complainant further visited hospital again or the Doctor demanded Rs. 2 Lakh or that complainant spent Rs. 4 Lakh on treatment or Rs. 5 Lakh on treatment and it is reiterated that he is unnecessarily blaming the Doctor and hospital. It is further stated that the complainant even made a complaint in DGHS which was dismissed by DMC, & then he started blaming Doctor of Irwin Hospital, who allegedly told him that there is no fracture in his leg or that he was unnecessarily operated upon by OP2 and then he is blaming other Doctors time and again.  

        It is further denied that complainant had spend Rs. 4 Lakh or Rs. 5 Lakh which both facts are contradictory to each other. It is also denied that complainant lost both legs due to improper operation by the Respondent No. 2/ Doctor at hospital of OP1. It is also denied that there is any medical negligence or deficiency in service on the part of OPs and it is stated that injuries were diagnosed correctly by OP2 as it is clear from the prescription of various hospitals and clinics and all of them have diagnosed as fracture with ‘Left Talu with fracture Calcaneum and fracture of Right Neck of Talus displaced’. It is further submitted that Complainant has concealed the order of DMC which clearly indicates that diagnose of OP2 was correct and surgery was required and recovery does take long time to unite and sometime results in stiffness. It is further submitted that the complaint of the complainant with DMC was dismissed and it was observed “Version of the client that there was no fracture and he was unnecessarily operated in unsound and irrational” and “that prima facie no case are medical negligence is made out on the part of Dr. V.A.S. Kumar, in the treatment administered to the complainant at Kukreja Hospital”. It is submitted further that the complainant has changed the nature of the complaint to lodge frivolous case. The claim is stated to be highly exaggerated and it is ultimately prayed that complaint of the complainant be dismissed.

        Complainant has not filed Rejoinder but has filed its evidence and OP has filed its evidence. Complainant as well as OP have also filed written arguments. The Commission has heard the arguments, gone through written arguments filed by both the parties and has also perused the documents so filed by both the parties. The relevant documents of the DMC dated 31/05/2013 reads as under.

“The Executive Committee of the Delhi Medical Council examined a complaint of Sh. Baljeet Singh S/o Sh. Balvir Singh R/o 13/10, Kalayanpuri, Delhi-91(referred hereinafter as the complainant), forwarded by Directorate of Health Services, alleging medical negligence on the part of Dr. V.A.S. Kumar, in the treatment administered to the complainant at Kukreja Hospital, D-36, Acharya Niketan, Mayur Vihar, Phase-I, Delhi-110091(referred hereinafter as the said hospital).

The Executive Committee observed that the complainant fell from height and sustained injuries to both the ankles. On let side it was fracture of Calcaneum and Neck of Talus. He was operated on both sides in said Hospital by Dr. V.A.S. Kumar. The surgery was required as the fracture segments were displaced and rightfully he was operated. It is known that fracture talus takes a long time to unite and it can result stiffness of the ankle joint. As to the version of the client that there was no fracture and he was unnecessarily operated is unsound and irrational.

In light of the observations made hereinabove, it is the decision of the Executive Committee that prima-facie no case of medical negligence is made out on the part of Dr. V.A.S. Kumar, in the treatment administered to the complainant at Kukreja Hospital.

        Therefore the expert evidence in this matter has come and that evidence was still within the knowledge of complainant and he has not filed any such appeal against the order of DMC. Not only this, this order was reflected by the OP in it’s written statement and complainant then has not filed any Rejoinder thereby denying this fact. The complainant had the opportunity to deny these facts and impress upon the Commission that another expert opinion be called thereby explaining his difficulty and filing documents which has not been done. The general rules to assess the negligence of Doctor is that the complainant has to prove that what the Doctor has done was, not required to be done or in another words, the Doctor has done such treatment which was not required or advisable to be done. Both the ingredients are missing from the complaint. From the documents so filed by complainant and from the evidence so filed, the complainant suffered fracture is not disputed, he was operated although he did recover properly is also not disputed but that is not sufficient to prove that there it was a case of medical negligence.

Medical science deals with treatment of human bodies and the doctors do give their service with the hope that it will bring the desired result on the patient as per normal procedures, as described in the books & literature. Sometime despite the best doctor & best medicine and treatment, it would not bring the expected result, and in such circumstances it cannot be said that there was some negligence on the part of doctors. To prove negligence the litmus test is as stated above i.e. whether the due care has been taken and what is required to be done has been done. If it is proved that doctor have not done which was required to be done only then case of negligence be made out. In this case there is no such allegation and report of DMC is in favour of the OPs. Therefore the Commission is of the opinion that complainant has not been able to prove any medical negligence or deficiency in service ‘by OPs’ and resultantly the complaint of the complainant is dismissed.         

Copy of the order be supplied/sent to the parties free of cost as per rules.

File be consigned to Record Room.

Announced on 08.02.2023