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2004 DIGILAW 38 (UTT)

Kanti Devi v. S. K. Gupta

2004-04-21

K.D.SHAHI, LUXMI SINGH

body2004
JUDGMENT This is appeal against the order dated 26.12.2002 passed by the District Forum, Hardwar whereby the complaint of the complainant for compensation on the ground of medical negligence of the doctors was dismissed by the Learned Forum. 2. The brief facts of the case are that the complainant is the widow of Sh. Krishan Dutt Sharma, aged about 62 years. On 19.11.1997 at about 11:00 am., he met with an accident and suffered fracture. He was admitted in the nursing home of opposite party No. 1. Dr. S. K. Gupta of S. K. Gupta of Sarthak Nursing Home, Roorkee, Opposite Party No.1 xrayed the injury and informed that there is a fracture of Nech Femur and that shall be operated after 4 or 5 days. He further informed that the complainant has to spent Rs.25,000/- (Rupees Twenty Five Thousand) in. operation. The complainant and her son gave consent. The opposite party No. 1 got some signatures on blank papers from the son of the complainant. 3rd day, i.e. on 21.11.1997, there was test of blood and urine in Singh Pathology Clinic. Some medicines were given and on 3rd day body of the victim started swelling. Then opposite party No.2. Dr. Vinay Kumar Gupta was called. He advised some treatment which was administered but there was no progress. The medicines were going on but the ailment of the husband of the complainant was increasing, therefore operation was postponed. On 28.11.1997, when the husband of the complainant became serious, opposite party No.2 was again called, who advised that the victim cannot be treated at Hardwar, he should be shifted to Delhi. Two reference letters were prepared by opposite party No. 1& 2 separately but the, opposite party No. 1 in stead of giving the date of 28.11.1997, gave the date of 19.11.1997 on his reference. On the reference letter of opposite party No.2, date of 28.11.1997 was mentioned. The victim was brought to Safdar Jang Hospital, the same day. The doctors informed there that the victim is to be kept on Dialysis, which is not readily available there, therefore the victim was shifted to Mool Chand Hospiatal, where the doctors informed that the victim has been brought late and there is no hope on his survivl, However, the victim was admitted in Mool Chand Hospital, thereafter he was treated in AIMS and ultimately he died on 09.01.1998. The opposite peaty No.1 & 2 gave wrong assurances that they will cure and has also taken a sum of Rs. 10,000/- (Rupees Ten Thousand) in the name of treatment without giving any receipt. In the reference letter the renal disease is written but he was not suffering from any renal disease. , The opposite party No. 1 is a surgeon. He is not a doctor of kidney, he should have immediately discharged the victim who could have been taken to Delhi and might have been saved. The death of the victim was due to the negligence of the doctors, opposite parties. It is within the definition of deficiency in service. Therefore this complaint was filed for recovery of Rs.2,00,000/- (Rupees Two Lacs) spent towards medical treatment and Rs.1,00,000/ - (Rupees One Lac) as compensation. 3. The opposite parties filed joint written statement and denied about any deficiency in service, rather they have alleged that Sh. Krishan Dutt Sharma was admitted due to fracture. He was in serious condition but as there were friendly relations with him, he was advised to be taken to Delhi but the complainant and her family members told that there is no immediate arrangement to take the victim to Delhi, he should be kept in the nursing home of the opposite party No.1 and should be treated. On humanitarian ground, the victim was admitted in the nursing home. After the x-ray, the fracture was detected but in the meantime the family members and the victim informed that the victim was also suffering from blood pressure and kidney. It is why on 19.11.1997 itself, a reference letter was given to take the victim to Delhi but there was no immediate arrangement, therefore the family members insisted to admit the victim and immediately blood and urine was sent for examination. Opposite party No.2 wan called for who checked the victim and gave the treatment. The victim was in his nursing home, he was properly treated and when his condition worsened, on 28.11.1997, the family members were again directed to take the victim to Delhi and then he was shifted to Delhi. It is alleged that no fee was charged due to earlier friendly relations and on humanitarian grounds, the victim was admitted, there was absolutely no negligence on the• part of the doctors and the complaint is liable to be dismissed: 4. It is alleged that no fee was charged due to earlier friendly relations and on humanitarian grounds, the victim was admitted, there was absolutely no negligence on the• part of the doctors and the complaint is liable to be dismissed: 4. After taking the evidence of the parties and hearing them, the Learned Forum rejected the petition. Against which order, the present appeal has been filed. 5. We have heard the Learned Counsel for the parties and gone through the records. The law is not like Motor Accident Claims that there may be fault of the driver or not but some compensation must be paid by the insurance company to the victim in case of serious injury or to the heirs of the victim in case of his death. Herein, medical negligence is to be proved with the facts and merely because the doctors could not cure the victim or the victim died, there cannot be presumption of any medical negligence. It is to be proved as a fact. Often some ,humanitarian considerations prevail that on humanitarian ground for the rehabilitation of the family, some claim may be awarded but evidently, the question ,also arises that the prestige, reputation & goodwill of the doctor is also involved and it cannot be simply brushed aside to give relief to the complainant. It is therefore in such cases of medical' negligence, the Forum has to be more vigilant so that neither injustice should be done to the consumer nor the doctor should be unnecessarily humiliated and his goodwill should be thrown to dots. 6. The burden of proof was squarely on the complainant to prove that the doctors have been negligent and the basic principle to prove such a negligence is what the doctor did which he should not' have done and what the doctor did not do, which he should have done. The total complaint is to be seen in this light. 7. It is admitted fact that the opposite party No. 1 is an orthopaedic surgeon and the complainant herself has admitted this fact that he is an orthopaedic surgeon. He has also got his own nursing home. Naturally he is a doctor who has the qualification and ability to operate and cure a fracture. 8. It is admitted fact that on 19.11.1997 at about 11:00 am, Sh. Krishan Dutt Sharma, the victim was injured. He has also got his own nursing home. Naturally he is a doctor who has the qualification and ability to operate and cure a fracture. 8. It is admitted fact that on 19.11.1997 at about 11:00 am, Sh. Krishan Dutt Sharma, the victim was injured. The complainant look him to the nursing home of Dr. S.K. Gupta herself. It is alleged in Para 2 of the complaint that their x-ray was done and it was revealed that he has got a fracture of right neck femur. Thus the admission to the nursing home of the doctor was made for the treatment and operation, if necessary, of the fracture and no other disease. The doctor was fully qualified and entitled to do that. It is not the case that was a homeopathic doctor and started doing operation of bones. It is also not the case that he was a physician and not authorised to do operations. There is nothing in Para 2 of the complaint, which suggests any medical negligence of opposite party No.1. In Para 3 it is alleged that the 3rd day, there was pathology test of the blood and urine of the victim. That pathology report is on the record and that was made by Singh Pathology Clinic, where blood urea was found to be 131 mg, while the normal range is 15-40 mg. This definitely shows some problem in the kidney, In Para 3, it is alleged that after this test, opposite party No.2 was called for. Opposite party No.2 is Dr. Vinay Kumar Gupta. He is M.B.B.S., M.D. (Medicine) and fully entitled to give medicines in such cases. There is no negligence of Dr. S.K. Gupta if Dr. Vinay Kumar Gupta was called, this rather shows the vigilance of Dr. S.K. Gupta to call an expert for the treatment of other ailments because he being an orthopaedic surgeon, may not be said to be an expert to treat other diseases. No allegation whatsoever has been made in Para 3 regarding the negligence of any of the doctors. It is alleged that treatment was given but it was not responding, the, disease was increasing. That is no ground to presume' negligence. The victim was aamitted in even Safdarjang, Moolchilnd Hospital and AIMS, still he died. The complainant never said that they were negligent because the victim died then. It is alleged that treatment was given but it was not responding, the, disease was increasing. That is no ground to presume' negligence. The victim was aamitted in even Safdarjang, Moolchilnd Hospital and AIMS, still he died. The complainant never said that they were negligent because the victim died then. Merely because treatment did not respondent here cannot be presumption of any negligent. It is alleged that on 28.11.1997, when the condition of the victim worsened, he was then referred to Delhi. There is no gauze or measurement of ability or qualification. Primary Health Centers refers the patients to District Hospitals. District Hospitals refers. the patients to Medical Colleges. Medical Colleges refer them to Institutes and AIMS, etc that in itself is no ground to presume negligence. If every body could have been cured in Premary Health Centers, there would not have been any need of AIMS, Apollo Hospital, etc and as regards negligence, even the doctors of Primary Health Centers are not negligent and in certain cases, even the doctors of Apollo, AIMS have been found negligent. That is to be proved as a fact. The only allegation of negligence is in Para 7 & 8 of the complaint, which is that in the reference letter, it is written that the victim was suffering from renal disease whereas he never had any renal disease. Sh. Prem Chandra Sharma, Learned Counsel for the complainant argued that after the fracture, some portion of the bone might have gone into the kidney and it might have caused the disease. That was only his conjecture. None of the doctors, even the doctors of safdarjaung, Moolchand Hospital and AIMS had not given any such report that kidney trouble was caused due to this fracture. To the contrary the evidence is that the victim was suffering from renal disease from before and we are supported by the report of the Moolchand Hospital when the doctor has written, the case of the victim is chronic renal failure. Chronic means old, not all of a sudden. It is immaterial where the victim was suggested on 19.11.1997 or on 28.11.1997 to be shifted to Delhi. The only question is from 19.11.1997 to 28.11.1997, whether there was any deficiency in service of the opposite parties or not and merely because his condition became serious and he was discharged on 28.11,1997, that is no ground to presume negligence. It is immaterial where the victim was suggested on 19.11.1997 or on 28.11.1997 to be shifted to Delhi. The only question is from 19.11.1997 to 28.11.1997, whether there was any deficiency in service of the opposite parties or not and merely because his condition became serious and he was discharged on 28.11,1997, that is no ground to presume negligence. Even the reports of Moolchand Hospital, Safdarjang Hospital sow that there was no negligence on the part of the opposite parties. Their report would have gone a long way to prove negligence because they are the experts but there is no such report and there is no such allegation in their reports as well. 9. The opposite party No.1 has admitted the victim for operation, to which he was fully authorized, he could not do operation because there was risk in the operation. This fact is proved and correct from the report of Moolchand Hospital where the victim was operated upon under high risk. The operation by Moolchand Hospital shows that the victim was in a condition to be operated upon, otherwise if he would have been in a dying condition, he could not have been operated by the doctors there. 10. From the Moolchand Hospital, the victim was discharged on his request. May be on the ground that the condition of the victim was a worsening a There is no allegation that the doctors of Moolchand Hospital were negligent because his condition was worsening. 11. Except mere allegation, there is nothing on record to show that the opposite parties were .negligent, in discharge of their duties. We are sorry that subsequently the victim died but nobody on earth could help the complainant, unless the negligence of the doctors is proved. 12. The Learned Counsel for the complainant referred the ruling reported in IV(2003) CPJ 633, Dr. Gangadharan us. K.A. Abdul Salam to show that when doctrine of res-ipsa laquitur comes into play, burden of proof is shifted to the opposite party. In this ruling local anaesthesia was applied without considering possible consequences, therefore the principle was applied. Nothing is said in this particular case that any line of treatment or diagnosis by the doctors was incorrect. Neither the complainant has said it, nor any expert evidence has been given to this extent, nor there is any report of the superior hospital where the victim was taken subsequently. Nothing is said in this particular case that any line of treatment or diagnosis by the doctors was incorrect. Neither the complainant has said it, nor any expert evidence has been given to this extent, nor there is any report of the superior hospital where the victim was taken subsequently. The ruling therefore shall not apply to the facts of the present case. The ruling reported in 2000 (1) A.W.C. 1.222( U.P.C.) Mohd. Ubaid Siddiqui Vs. Dr. Ramesh Kumar Upadhyaya was also referred. In this ruling, the doctor was claiming himself to be orthopaedic surgeon from foreign country but he did not take care of an ordinary doctor, he was held liable. There is no such allegation in this case. The only allegation in the present case is that the victim should have been released earlier than on 28.11.1997. For that there is counter allegation that there was no arrangement with the complainant to take the victim to Delhi and till that time the victim was requested to be admitted and given medicines. There is nothing on record to show that on 21.11.1997• or on subsequent days, the complainant did not inquire from pathologists about the report. Every patient inquires about the pathology reports and even if there was no pathological test on 19.11.1997, then admittedly on 21.11.1997 pathological test was there and on that date it was detected that there was kidney trouble. The ruling reported in 1998 (2) A. we. 1259 (S.C.) Spring Meadows Hospital and another Vs. Harjol Ahluwalia through E.S. Ahulwalia and another was further referred. This ruling is an authority on the subject but here too there was definite finding that there was a clear dereliction of duty on the part of the nurse, who was not even a qualified nurse and the hospital is negligent having employed such a nurse. There is no such evidence or allegation in this particular case. 13. On the facts and circumstances as discussed above there is absolutely no evidence on the negligence of the doctors. Mere allegation will not prove the case and we find that the Learned Forum was perfectly justified in rejecting the complaint. This appeal has got no force and is liable to be dismissed. ORDER The appeal is hereby dismissed. Cost of the appeal shall be easy.