DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

                                                  Complaint Case No.100/14

In the matter of:

CORAM:                                                                                                     

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

Adarsh Nain, Member

ORDER

       Ms. Adarsh Nain

The Complainant filed the present complaint under Section 12 of the Consumer protection Act, 1986 against the Panchsheel Hospital Pvt. Ltd as opposite party 1. Later on, in compliance of the order dated 26.02.2015 passed by Hon’ble State Commission, Delhi, the present complaint was amended and New India Assurance Co. Ltd. was impleaded as Opposite party 2 which is the insurance company of Panchsheel Hospital Pvt. Ltd.

Case of the Complainant (as per the amended complaint.)

1.  The facts of the complaint are that the Complainant is a bona fide lady having CGHS card bearing no. 188281. while the Panchsheel Hospital Pvt. Ltd is opposite party 1 where the complainant went for treatment. The Opposite party 2 is the insurance company of the Opposite party 1 hospital and it is alleged that both the opposite parties are liable in case of negligence or malafide intention/ act of the hospital. It was stated that the complainant was admitted in emergency on 19.06.12 in the Panchsheel Hospital Pvt. Ltd., Opposite Party No.1 which is on the CGHS panel. It is stated that the surgery of Complainant was conducted on the same day by 3 doctors of the Opposite Party hospital. It is alleged that the surgery was not conducted properly and USG bed side was done in intervening night of 19.06.12 and 20.06.12 and found that situation of the patient was out of control. It is further stated that the doctors made the husband of Complainant to arrange the blood and sign some documents due to emergency. It is averred that the husband of Complainant suggested to shift the Complainant to GTB hospital or St. Stephens hospital but doctors of  Opposite Party No.1 hospital did not allow that and shifted the Complainant to Kailash hospital & heart institute at Noida without considering complainant’s financial position and without her husband’s permission. It is further alleged that the complainant was shifted to Kailash hospital in the ambulance of the above mentioned doctors and the doctors even refused the complainant’s husband to provide any information regarding patient’s state and also the USG report.  The Complainant allegedly spent Rs. 850/- for 1 unit blood and 350/- for biopsy for her treatment at Opposite Party No.1 hospital. It is further stated that the Complainant was admitted in Kailash hospital, Noida in emergency on 20.06.12 at 3.57 a.m. for further treatment. It is stated that the Complainant remained under treatment there from 20.06.12 to 03.07.12 but credit facility was not provided by the Kailash hospital. During the treatment, the Complainant spent amount of Rs. 2, 28,284/- which Complainant allegedly had to borrow from his friends and relatives at high interest. It is alleged that the above noted problem occurred due to negligence and lack of knowledge/experience of doctors of Opposite Party No.1 hospital. It is further stated that the after the complainant’s discharge from Kailash hospital, when the husband of the Complainant visited Opposite Party No.1 hospital to know the exact situation of Complainant , the doctors of Opposite Party No.1 allegedly accepted their fault and offered to compensate. The Complainant also sent legal notice to Opposite Party on 20.01.14 for compensation. But, on 20.02.14, Complainant received reply of her legal notice from Opposite Party refusing the same which shows deficiency on the part of Opposite Parties. Hence, the complainant has prayed for compensation of Rs. 19, 50,000/- on account of physical, mental and financial loss, or injury occasioned by negligence etc. of the Opposite Party No.1.

Case of Opposite Party No. 1

2. The Opposite Party No.1 contested the case and filed its written statement. The Opposite Party No.1, taking preliminary objections, submitted that the present complaint is liable to be dismissed as the same being vexatious and has been filed to extract money from the opposite party. On merits, it has been contended by the Opposite party 1 as follows:

1. On 19.06.2012, at about 11.00 am, the complainant was admitted with complaint of 3^rd degree uterus prolapse with bleeding and extreme pain.
2. In view of the above, the emergent surgical intervention was suggested and the complaint’s surgery was conducted by Dr.Poonam Goyal and her team on the same day between 5.30 to 7.10pm.
3. The surgery was successful and post operatively, the vitals of the patient were normal.
4. It is further submitted that the surgery of the patient was conducted as per set medical standards and with due care and diligence.
5. Thereafter, at about, 10.00 pm the complainant’s BP started falling down and despite best possible efforts; the patient could not be resuscitated.
6. As per medical protocol, to save the life of the complainant, a team of doctors remained with the complainant throughout and a bedside ultra sound was performed which showed the collection in abdominal cavity. In view of this finding, it was decided by the team that complainant needed a re-exploration which would require extensive blood and blood product transfusion; hence, it was decided in the best interest of the patient to shift her to nearby higher centre with the in-house blood bank facilities immediately.
7. In the best interest of the complainant, the husband of the complainant was advised to shift the complainant to Govt. GTB hospital as the same was the nearest, however, the husband of the complainant shifted her to Kailash Hospital, Noida.
8. At the time of shifting, the complainant was accompanied by two senior doctors of OP1 hospital.
9. Therefore, it is submitted The complainant was treated with due care and diligence as per set medical standards and as such the question of medical negligence or deficiency in service does not arise at all.

Case of Opposite Party No. 2

3. The Opposite Party No.2 New India Assurance Co. Ltd contested the case and filed written statement. Denying all averments in the complaint in general and specifically also, it is admitted by the Opposite Party No.2 that Professional Indemnity Policy was issued to Opposite party 1 along with terms and conditions. Without admitting the claim, it is submitted by OP2 that the company is not liable for claim which is not covered under the policy.

Rejoinders to the written statements of Opposite Parties

4. The Complainant filed separate rejoinders to the written statements of Opposite Parties wherein the Complainant has denied the pleas raised by the Opposite Parties and has reiterated the assertions made in the complaint.

Evidence of the Complainant

5. The Complainant in support of her case filed her affidavit wherein she has supported the assertions made in the complaint. She has also filed some additional evidence by way of affidavits of her family and friends. They have supported the case of the Complainant as mentioned in the complaint.   

Evidence of the Opposite Party No. 1

6. In order to prove its case, Opposite Party No.1 has filed affidavit of Shri. V.K Goyal, Director of Opposite Party No.1, C-3/64A, Yamuna Vihar, Delhi-110053 wherein the averments made in the written statement of Opposite Party No.1 have been supported. Opposite Party No.1 has also filed some additional evidence by way of affidavits of Dr. Poonam Goyal, Dr. Anil Kapoor, Dr. Arvind Vaid, Consultants at Opposite Party No.1. They have also supported the case of Opposite Party No.1 as mentioned in its written statement.

Evidence of the Opposite Party No. 2

7. In order to prove its case, Opposite Party No.2 has filed affidavit of Shri Devesh Yadav, Senior Divisional Manager, New India Assurance Co. Ltd., CDU 311400, 2^nd Floor, C-5 Vishal Enclave, Rajouri Garden, Delhi  wherein the case of Opposite Party No.2 have been supported the averments and contentions made in the written statement.

Arguments and Conclusion

8. We have heard the counsels for the parties. We have also perused the file and written arguments filed by the parties.
9. The case of the Complainant is that while the complainant was admitted in emergency on 19.06.12, the surgery of Complainant was conducted on the same day by the doctors of the Opposite Party hospital. It is alleged that the surgery was not conducted properly and when the USG bed side was done in intervening night of 19.06.12 and 20.06.12, it was found that situation of the patient was out of control. Allegedly, instead of shifting the complainant to GTB hospital or St. Stephens hospital, the Opposite Party No.1 hospital shifted the Complainant to Kailash hospital & heart institute at Noida without considering complainant’s financial position and without her husband’s permission. During the treatment in kailash hospital, Noida, the Complainant had to spend amount of Rs. 2,28,284/- which Complainant allegedly had to borrow from his friends and relatives at high interest. It is alleged that the above noted problem occurred due to negligence and lack of knowledge/experience of doctors of Opposite Party No.1 hospital.
10.  The case of the opposite party hospital is that the surgery of the complainant was performed by team of senior, well qualified and experienced doctors and the surgery was done with due care and diligence as per set medical standards.
11.  It is pertinent here to refer to the dicta of the Hon’ble Apex Court, in Harish Kumar Khurana vs. Joginder Singh and Ors. reported at AIR 2021 SC 4690, wherein, the Hon’ble Supreme Court, while taking into consideration its previous pronouncements in Jacob Mathew v. State of Punjab and Anr. reported at (2005) 6 SCC 1, and Martin F. D'Souza v. Mohd. Ishfaq reported at (2009) 3 SCC 1, has held as under:

“14. Having noted the decisions relied upon by the learned Counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception.”

12. In the present case, it was to be ascertained whether there was any lack of skill and competence on the part of the operating doctors and/or any omission to do what was actually required in the present facts and circumstances. On the point of lack of competence, the Opposite Party has contended that all the three doctors were well qualified and experienced and in support of their contention, they have filed the affidavits of the all the three doctors who treated the complainant. Since the complainant has not led any cogent evidence to prove the point of incompetence in rebuttal, the contention of incompetence is to be rejected.
13. The perusal of the file shows that vide letter dated 23.01.2020, this commission had forwarded the complete record of the medical of treatment of the complainant by the Opposite Party hospital to the Medical Superintendent, Lok Nayak hospital, New Delhi directing the said hospital to provide expert medical opinion. Consequently, the Medical expert opinion report dated 04.02.2020 was received. However, in view of the objections raised by the complainant regarding the said report, vide letter dated 25.11.2022, this commission again directed the said hospital to re- examine the matter after hearing the parties and accordingly, the report dated 12.12.2022 was received. The perusal of the report shows that no modification or changes were required, hence the report dated 04.02.2020 was made final. The relevant extract of the said report is as follows:

“ As per the findings in the records, vaginal hysterectomy with colpo-perineorraphy was done at Panchsheel hospital and later referred to  Kailash hospital for post-operative haemorrhagic complication, as per protocol and managed well”

14. From the perusal of the said Medical expert opinion report, it is evidently clear that there was no medical negligence in providing treatment to the complainant by the doctors of Opposite Party hospital.
15.  It is noted that the complainant has neither been able to prove the fact of medical negligence, nor lack of competence on the part of the Opposite Parties. On the contrary, the expert medical opinion from the Govt hospital of high reputation confirms the efficaciousness of the treatment given by the alleged negligent hospital. Therefore, in view of above, we are of the considered opinion that no case of medical negligence has been made out.
16.  Thus, in view thereof, we dismiss the present complaint with no order as to costs.
17.  Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
18. Order announced on 24.02.2023.

Copy of this order be given to the parties free of cost.

File be consigned to Record Room.