Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. This is a complaint filed under Section 17 of Consumer Protection Act, 1986.
2. The case of the complainant as set out in the said complaint in brief is as under.
a) The deceased Govind Chulbule was the husband of the complainant Ushatai Chulbule. The opposite party (for short O.P.) No.1 is a hospital situated at Nagpur. The O.P.No.2 is a doctor and he providing medical service to general public. He is attached to O.P.No.1 hospital. The O.P.No.3 is also a doctor and he is running hospital in the name and style as “Arneja Heart Institute”
b) The deceased Govind was a retired government servant. He had a chest pain on 26/07/2011. Therefore he was taken by the complainant to O.P.No.1 hospital for general check up. However when the complainant took deceased Govind to hospital, on enquiry in that hospital, it was told to the complainant and her husband that O.P.No.3 Dr.Jaspal Arneja and Dr.Bisne are the panel Cardiologist of that hospital. The deceased Govind was admitted in that hospital immediately by the duty officer of O.P.No.1. though the complainant had told him that they came there for special check up only. They had requested the duty officer to call the Cardiologist to check the deceased Govind. The complainant deposited Rs.10,000/- with the O.P.No.1 as per instructions of the duty officer.
c) The deceased Govind was taken to I.C.U. directly after his admission. He was asked to undergo certain medical tests. The doctors on duty checked the deceased Govind. His E.C.G and certain pathological tests described in the complaint in detail were taken in the hospital of O.P.No.1. It was found after those tests that the deceased Govind recently suffered acute heart attack and the range of the serum CKMB was found far more than the normal range. Therefore it was necessary to call or consult the Cardiologist immediately. However the O.P.No.1 and its staff managed the deceased Govind symptomatically and did not take curative measures and not adopted any preventive procedure.
d) The deceased Govind suffered another heart attack in the morning of 27/07/2011 at about 7.43 A.M. At that time also the hospital authority did not take any necessary action. The necessary dose of Thrombolytic agents and relevant medicines were not administered to the deceased Govind and his angiography was also not done as required. No curative procedure was done and for first time injection namely Fragmin 5000 iv was given at the time of discharge of deceased Govind i.e. after 20 hours of his admission in the hospital. It proves gross negligence and carelessness on the part of O.P.No.1 and its staff.
e) The O.P.No.1 failed to diagnose left ventricular failure of deceased Govind and provide him proper treatment for the same.
f) The O.P.No.1 failed to observe and diagnose right side weakness which had revealed large cerebella inflicts which is observed for the first time by O.P.No.3 after his admission in his hospital.
g) There was no diagnosis of heart failure and large infract or paralysis and the health of deceased Govind was allowed to be deteriorated till 3 P.M. without giving him necessary treatment or making available life saving facilities.
h) All medical records were not supplied to the complainant though demanded.
i) The O.P.No.1 instead of calling O.P.No.3 in its hospital or instead of calling Cardiologist, started treatment which shows their negligence and carelessness which caused paralysis to the deceased Govind.
j) The complainant had noticed that deceased Govind had vomited because of increased introcrunel prosseor (ICP) and due to major artery blockage. No information about the same was given to the complainant. No information about the nature of treatment was given to the complainant.
k) On next date i.e. on 27/07/2011 Dr.Devyani Buche holding M.D. Medicine degree and O.P.No.2 were present in the hospital from 10 A.M. to 5 P.M. The deceased Govind vomited for second time in the night and in the morning also. However O.P.No.2 on examination of deceased Govind said that he is giving good response to the treatment and medicines given to him and he is out of danger. However at that time deceased Govind had already suffered paralysis. On 27/07/2011 at 3 P.M. the O.P.No.1 asked the complainant to deposit entire amount of the bill immediately and told her that deceased Govind is required to be shifted to hospital of O.P.No.3 for advance Cardiac Care in the form of angioplasty urgently. The complainant was very much shocked. However the O.P.No.2 forced the complainant to take the discharge of deceased Govind as he wanted to throw him out of his hospital to avoid the responsibility. The O.P.Nos.1 and 2 had taken time of three hours for completion of formalities for discharge.
l) When the deceased Govind was taken to the hospital of O.P.No.3, it was said by O.P.No.3 that he is brought at a very late stage and that he is in semi-coma stage and no proper treatment was given within time to him and therefore he has gone to semi coma stage and it is difficult to gave him proper treatment. The O.P.No.3 did not carry out angioplasty or even did not provide any treatment regarding heart ailment. The complainant was asked by O.P.No.2 to deposit Rs.1,50,000/-. But she deposited only Rs.60,000/- immediately. The O.P.No.3 kept deceased Govind in I.C.C.U. The complainant brought all the medicines as demanded by O.P.No.3. However O.P.No.3 did not give the details of treatment given by him to the deceased Govind. He had stated that firstly he would try to make deceased Govind stable and then he would think about treatment. The O.P.No.3 had directed for scanning. But on 29/07/2011 at 1.30 P.M. the O.P.No.3 declared deceased Govind as dead.
m) The complainant then served notice to O.P.Nos.1 to 3 for supplying documents of treatment. The O.P.Nos.1 and 2 supplied certain documents which are false. The O.P.No.3 has not supplied any document of treatment.
n) The complainant lodged report with the police against O.P.Nos.1, 2 and 3. But they did not take any action under the influence of O.Ps.1 and 2. The death of deceased Govind is caused due to negligence on the part of O.P.Nos.1, 2 and 3. Therefore they are liable to pay compensation to the complainant.
o) The O.P.No.4 is the insurance company which issued the policy to O.P.No.1 for coverage under title as “Errors and omissions Insurance Policy (Medical Establishment-Professional Negligence).” Similarly the O.P.No.5 issued policy to O.P.No.3 under the title as “Professional Indemnity Insurance (Doctor) Policy”.
p) Therefore the complainant has filed the present complaint claiming from O.P.No.1 to 5 total compensation of Rs.50,00,000/- of which head wise details are given in para No.24 of the complaint. The complainant also claimed litigation cost from O.P.Nos.1 to 5.
3) The O.P.No.1 to 5 appeared before this Commission and filed their reply and thereby resisted the complaint.
4) The O.P.Nos.1 and 2 filed their common reply. They have denied the allegations of medical negligence made against them by the complainant. Their case in brief is as under.
i) The deceased Govind, age about 62 years was brought to their hospital on 26/07/2011 at 8 P.M. with a complaint of chest pain since 9 A.M. of 26/06/2011. Moreover he had also complaint of epigastric pain, vomiting and profuse sweating. He had a past history of HTN with DM. He had irregular medication of diabetes and Hypertension. He had a habit of tobacco chewing.
ii) The deceased Govind was immediately admitted in the hospital of O.P.No.1 under the treatment of Dr.Devayani Buche who is holding M.D. (Medicine) degree and he was also under the treatment of Dr.Rajesh Atal and Dr.Sanjiv Bais who are holding degrees as M.D. (Medicine) and D.A.(Anaesthesia) respectively, who are also senior doctors and have vast experience in medicine and intensive care. The condition of deceased Govind was serious at the time of his admission. In hospital of O.P.No.1 his E.C.G. was taken. It showed ischaemic changes. He was admitted to I.C.C.U. and Dr.Rajesh Atal examined him in detail and started treatment for ischaemic heart disease. There upon the deceased Govind was doing well and responding to the treatment. His condition and status was conveyed to the complainant and his brother in law from time to time. The treatment as required was given to him as specified in detail in para No.5 of the reply.
iii) On 27/07/2011 at 3 P.M. deceased Govind developed severe chest pain, sweating and restlessness and his E.C.G. showd worsening and therefore the treating doctors observed that the patient may require advanced cardiac care in the form of Angio Plasty to save his life and therefore decision was taken to shift him to Arneja Heart Institute of Nagpur. The said decision was taken after consulting the wife and brother in law of deceased Govind. Therefore deceased Govind was discharged on 27/07/2011 at 5.30 P.M. from the hospital of O.P.No.1.
iv) The deceased Govind was taken to the hospital of O.P.No.3 under proper care and by providing him proper treatment as specified in detail in para Nos.5 and 13 of the reply.
v) The Thrombolysis was not done as the window period was over. But all the other medicines were given and the precaution and timely care was taken in due course as per the situation of deceased Govind prevailing at that particular stage. He was brought to the hospital of O.P.No.1 for admission and not for simply check up. It is denied that the documents were not supplied by O.P.Nos.1 and 2 though demanded. It is also denied that the documents supplied were false.
vi) The allegations made by the complainant are without any expert medical opinion and therefore the same can not be accepted. No document or evidence is filed by the complainant to prove the allegations of medical negligence. Hence the complaint deserves to be dismissed with compensatory cost.
5) The O.P.No.3 filed a separate reply in brief as under.
i) It is admitted that O.P.No.3 rendered medical services to O.P.No.1 hospital as and when called for treatment pertaining to cardiac patient. The O.P.No.2 had informed the O.P.No.3 while shifting deceased Govind to the hospital of O.P.No.3. The deceased Govind was shifted in the hospital of O.P.No.3 in critical condition. But he was in conscious state at the time of his shifting. He was a patient of acute heart failure. There was no chest pain. The renal parameters were deranged. He was put on appropriate aggressive medical therapy and non invasive ventilatory support for stabilisation of his condition. He was in acute LVF and not having ongoing Angina. Therefore immediate coronary angiography was deferred as it would have been detrimental at that stage. The decision for angiography was infact good, but in next 12 hours deceased Govind developed neurological stroke with right sided weakness, which was confirmed by C.T.Scan. He was also seen by consultant physician Dr.Nikhil Balankhe and Neurophysician Dr. Kabra who advised to continue with conservative medical management. He was managed very aggressively right from his admission in hospital of O.P.No.3. There was no delay in his treatment. His condition was informed to his family members. The best possible medical therapy was received by deceased Govind. The decision as to when to perform angiography or angioplasty is a clinical decision taken by the treating Cardiology as per need and condition of the patient. It is denied that O.P.No.3 said that deceased Govind was brought in coma state. He was conscious and no neuro deficit was seen on his admission in hospital. He developed Nero complications over next 12 to 24 hours and was treated appropriately. The O.P.No.3 had made best efforts to save the life of deceased Govind, but all went in vain as he died on 29/07/2011.
ii) The notice of the complainant was received by the O.P.No.3 and it was replied on 29/01/2011. It was asked to the complainant to collect the medical file and papers from the hospital of O.P.No.3. However nobody turned up to collect the same. The New India Assurance Company Limited (O.P.No.5) has covered the O.P.No.3 under a policy. On these grounds the O.P.No.3 prayed that the complaint may be dismissed.
6) The O.P.No.4 Insurance Company in its reply filed to the complaint denied that it issued policy to cover the O.P.No.1 and submitted that the complaint as against it may be dismissed.
7) The O.P.No.5 in its reply denied the allegations made in the complaint and submitted that it insured O.P.No.3 for professional Indemnity Insurance (Dr). It adopted reply of O.P.No.3 and submitted that the complaint may be dismissed with cost as against it.
8) The complainant alongwith the complaint filed copies of all the test reports including E.C.G., discharge card, death summary, notice issued to the O.Ps., reply given by the O.Ps. and report of C.T.Scan. The complainant also filed her affidavit. The O.P. No.3 filed his own affidavit. The O.P.No.3 also filed policy issued by O.P.No.5. The copies of medical case papers of hospital of O.P.No.1 are also filed by advocate of O.P.Nos.1 and 2.
9) During the pendency of this complaint, on the application of the advocate of the complainant, this Commission directed the Dean of the Government Medical College Nagpur to constitute medical board for examination of all medical case papers and submission of report as regards the medical negligence if any. Accordingly the medical board was constituted which was comprising of four experts doctors. They examined all the medical case papers submitted to them and issued a report which is placed on record alongwith a letter dated 18/09/2017 of medical Superintendent of Government Medical College and Hospital Nagpur. Copies of the said report were also provided to both parties.
10. The learned advocates of both parties also filed their respective written notes of arguments. We have heard advocate Shri. Mangde who appeared for the complainan, advocate Shri. Nair who appeared for O.P.Nos.1 and 2, Shri. Minashu Varma, the authorized representative of O.P.No.3, advocate Shri. Barapatre who appeared for O.P.No.4 and advocate Shri. W.G.Paunikar who appeared for O.P.No.5. We have also perused the entire record and proceedings of the present complaint.
11. The learned advocate of the complainant reiterated the aforesaid case of the complainant as set out in the complaint and relied on the decisions in the following cases in support of his submission.
- Post Graduate Institute of Medical Education and Research, Chandigarh…….V/s……Jaspal Singh & Otheres, reported in 2009 (7) SCC 330. It is held in the said case that to fasten liability in criminal law, degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. Where as in civil cases, only preponderance of probability is suffice. While in criminal cases, proof should be beyond reasonable doubt. Professional may be held responsible for professional negligence if he was not possessed of requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in the given case the skill which he did possess.
- Jacob Mathew……..V/s…….State of Punjab and another, reported in 2005 (6) SCC 1. It is held in that case that standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.
12. Thus the learned advocate of the complainant submitted that as the medical negligence as stated in the complaint in detail has been duly proved by the complainant against the O.P.Nos.1, 2 and 3, the reliefs sought for in the complaint may be granted.
13. The advocate of O.P.Nos.1 and 2 on the other hand also reiterated the aforesaid case of O.P.Nos.1 and 2 as set out in their reply and he has also relied on the report of Medical Board in which it is opined by expert doctors that there is no negligence on the part of O.P.Nos.1, 2 and 3. The learned advocate of the O.P.Nos.1 and 2 also relied on the decisions in the following cases.
- C.P.Sreekumar (Dr.)……V/s…..S.Ramanujam, reported in 2009 (6) Mh.L.J. 829. It is held by the Hon’ble Supreme Court in the said case that onus of proving medical negligence was lying with complainant and mere statement in complaint was no evidence.
- Sunder Lal and others……V/s……Dr.Sanjeev Arora and others, reported in 2016 (1) CPR 403 (NC). It is held by the Hon’ble National Commission in the said case that bald statement of complainant cannot be accepted to reach conclusion that doctor lacked expertise.
- Shrawan Kumar jaipuriyar……V/s……Commandant, Base Hospital and anothers, reported in II (2015) CPJ 420 (NC). It is held in the said case by Hon’ble National Commission that interest of public and medical profession are best served when scientifically sound and unbiased expert witness testimony is readily available to patient/complainant and Doctor/O.P. in medical negligence cases. The expert witness testimony should be reliable, objective and accurate and provide a truthful analysis of standard of care.
14. The learned advocate of O.P.Nos.1 and 2 thus submitted that the case of the O.P.Nos.1 and 2 is duly supported by medical board and as there is no evidence besides the bald statement of the complainant about alleged medical negligence, the complaint is liable to be dismissed.
15. The learned advocate of the O.P.No.3 in his written notes of arguments also reiterated the aforesaid case of the O.P.No.3 as set out in his reply and submitted that the O.P.No.3 has given best possible medical treatment to the deceased Govind and there is no evidence to prove medical negligence against him and hence the complaint is liable to be dismissed.
16. The learned advocate of O.P.No.4 submitted that no policy is issued by the O.P.No.4 for coverage of the O.P.Nos.1 and 2 and therefore the complaint is liable to be dismissed as against the O.P.No.4.
17. The learned advocate of O.P.No.5 submitted in brief that though O.P.No.5 issued policy covering O.P.No.3, no liability can be fastened on O.P.No.5 as O.P.No.3 has given best possible treatment to the deceased Govind, maintaining whole transparency in the treatment, medicines and service there of and did not act with carelessness or negligence attitude. Therefore he requested that the complaint may be dismissed as against O.P.No.5.
18. At the out set it is worthy to note that there is no expert opinion on record in support of the case of complainant about carelessness or medical negligence on the part of O.P.Nos.1, 2 and 3. It is also pertinent to note that the complainant has also not filed any authentical medical literature to show as to what accurate treatment was required to be given to the deceased Govind by O.P.Nos.1, 2 and 3 immediately, but not given by them and to show that primary angiography was necessary to be performed within initial six hours of admission of deceased Govind in the hospital and further to show that it was also necessary to Thrombolysis the deceased Govind after investigation report was received.
19. It is also pertinent to note that on the application of learned advocate of the complainant, all medical case papers relating to treatment of deceased Govind were forwarded to the Medical Board of Government Medical College and Hospital Nagpur for examination and report. The said Medical Board was comprising of four experts doctors who duly examined all medical case papers about to investigation and treatment given to deceased Govind and submitted a report alongwith a letter dated 18/09/2017. The said Board was comprising of professor of medicine, professor of forensic medicine, professor of Cardiology and Medical Superintendent cum Chairman. They discussed in their report, the investigation carried out and the treatment provided by O.P.Nos.1, 2 and 3 to the deceased Govind about his heart ailment and lastly opined that, “After going through all the documents, treatment papers of both the hospitals, the committee is of the opinion that proper care and treatment was given to the patient at both hospitals i.e. Orange City and Arneja Hospital Nagpur. The complainant has not adduced any evidence to disbelieve the said report of the Medical Board/Committee.
20. It is well settled law that initial burden lies on the complainant to prove medical negligence. We find that mere bald statement made by the complainant in the consumer complaint can not be said to be an evidence to prove the alleged carelessness or medical negligence on the part of O.P.Nos.1, 2 and 3 in examining, investigating and providing treatment to deceased Govind in their hospitals. The complainant was required not only to show the facts constituting carelessness or medical negligence, but she was also required to prove the same by cogent evidence. However she failed to prove the same by cogent evidence.
21. On the contrary the expert opinion discussed above shows that there was no carelessness or negligence on the part of O.P.Nos.1, 2 and 3 in examining deceased Govind and providing treatment and taking his care. The report of the aforesaid expert is reliable, objective and accurate. In the absence of any evidence in rebuttal the same can not be disbelieved. Thus we find from the said report of the experts that the O.P.Nos.1, 2 and 3 provided proper care and treatment as required under well established medical practice. Thus they have not committed breach of any duty so as to fasten liability on them about payment of compensation, claimed by the complainant.
22. We are therefore of the considered view that both the aforesaid decisions relied on by the learned advocate of complainant are not any assistance to the complainant since it is found that no carelessness or medical negligence is proved on the part of the O.P.Nos.1, 2 and 3. We therefore hold that the complaint as against the O.P.Nos.1, 2 and 3 deserves to be dismissed.
23. As we have held that the O.P. Nos.1, 2 and 3 are not liable
to pay compensation, there is no question of fastening liability
on O.P.Nos.4 and 5 under any policy. Hence the complaint deserves to be dismissed against them also.
// ORDER //
I. The complaint is dismissed.
II. No order as to cost in the complaint.
III. Copy of the order be furnished to both parties, free of cost.
