APURVA NURSING HOME vs JOGINDER PAL & ORS.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 13.10.2010, passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (hereinafter referred to as "the State Commission") in First Appeal No. 1363/2010, Apurva Nursing Home vs. Joginder Pal & Ors., vide which, while dismissing the appeal, the order passed by the District Consumer Disputes Redressal Forum, Faridabad, dated 03.08.2010, in Consumer Complaint No. 811, allowing the said complaint, was upheld.

The fact of the case are that the complainant, Joginder Pal took his ailing wife Surjit Kaur for treatment to Dr. Prem Kumar at Apurva Nursing Home, OP-2/petitioner, wherein, she was diagnosed to be a case of prolapse uterus and was advised vaginal hysterectomy. Before her surgery, she was referred to Dr. G. K. Khurana for diabetic control. After requisite medication, the patient was cleared for the surgery. As per the petitioner, the informed consent was taken and the patient was subjected to surgery in the operation theatre under general anaesthesia. The petitioner have stated that the patient developed silent myocardial infarction, which was a well-known complication in the case of diabetic patients. The petitioner was, therefore, taken to

OP-1, Escorts Hospital, duly accompanied by Dr. Prem Kumar, who had detailed consultation with Dr. Sanjeev Kapoor of Escorts Hospital. However, the patient could not survive and died at Escorts Hospital. The complainant filed the consumer complaint in question, alleging conspiracy between Dr. Sanjeev Kapoor and Dr. Prem Kumar in declaring the death of the patient and stated that the complainants should be paid compensation of Rs. 4,95,000/- on account of damages, financial loss and mental tension etc. The complaint was resisted by the OP-2/petitioner by filing a written statement before the District Forum, in which they stated that there had not been any negligence on their part in treating the patient. Before the surgery conducted upon her on 11.12.1999, she was subjected to examination by a physician with regard to her physical condition. The surgery was performed upon the patient only after a green signal was received from the said physician that the sugar of the patient was under control. The anaesthesia was also administered by a specialist doctor, Dr. Rakesh Sethi, who was also present at the time of the operation. The petitioner stated that during the operation, the patient developed silent myocardial infarction, which was a known complication in such cases. The patient was immediately taken to Escorts Hospital and Medical Research Centre Ltd. at Faridabad in the company of the physician. The allegations against the petitioner were, therefore, not proved and hence, the complaint deserved to be dismissed.

The District Forum, after taking into account, the averments made by the parties, allowed the consumer complaint and directed payment of Rs. 3,60,000/- to the complainants, out of which the petitioner Apurva Nursing Home was held liable to pay a sum of Rs. 2,85,000/- and the balance amount of Rs. 75,000/- was to be paid by M/s. Apurva Nursing Home and the National Insurance Company, jointly and severally. A litigation cost of Rs. 2,200/- was also ordered to be paid by the Nursing Home as well as the Insurance Company jointly. Being aggrieved against this order, the petitioner, Apurva Nursing Home, challenged the same by way of an appeal before the State Commission and the said appeal having been dismissed vide impugned order dated 13.10.2010, the petitioner, Apurva Nursing Home is before this Commission by way of the present revision petition.

During hearing before this commission, notice was sent to the respondents for appearance before this Commission and defence of the case. The complainant/respondent no. 1 did not present himself despite service and hence, he was ordered to be proceeded against ex-parte. The arguments of the learned counsel for the petitioner, M/s. Apurva Nursing Home and the learned counsel for the National Insurance Company have been heard.

The main contention taken by the petitioner, Nursing Home, is that the District Forum as well as the State Commission had wrongly observed that the medical record of the case had not been produced before the Consumer Fora. During hearing before this Commission, it was ordered on 19.05.2011 that an affidavit will be filed to show that the medical records had been filed before the District Forum. The said affidavit had been duly filed by the petitioner before this Commission on 17.02.2012, in which it was stated that the treatment records of the patient, copies of which had been filed with the present revision petition, had been duly filed before the District Forum, Faridabad at the time of leading evidence before them. However, the District Forum as

well as the State Commission had wrongly observed in their orders that the hospital had not produced even a single document of treatment or prescription to show that proper treatment was given to the patient and all reasonable care and precaution were made before starting the operation. The learned counsel for the petitioner stated that the orders passed by the Consumer Fora below were, therefore, bad in the eyes of law and should be set aside. The learned counsel further stated that the complainant''s wife had been suffering from the problem of blood sugar and that she developed myocardial infarction during the surgery, having been done on her, for vaginal hysterectomy. The learned counsel further stated that considering her condition, the petitioner had shifted her to Escorts Hospital in the company of doctors and ensured that they have taken all possible precautions to take care of her. The learned counsel also stated that the liability for making payments should be that of the Insurance Company and not of the Nursing Home.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

In the consumer complaint filed by the husband of the patient, it has been stated that Dr. Prem Kumar from the petitioner hospital had sent the patient first to Dr. G. K. Khurana for bringing her sugar levels under control. The surgery was started upon her only after her sugar levels came under control. It is also clear from the complaint itself that when the condition of the patient deteriorated, Dr. Prem Kumar called Dr. G. K. Khurana and the patient was shifted to Escorts Hospital and Medical Research Centre Ltd. duly accompanied by Dr. Prem Kumar, where the said Dr. Prem Kumar had detailed discussion with Dr. Sanjeev Kapoor. The case of the petitioner hospital is that the patient suffered from myocardial infarction, which was a known complication in such cases. A material issued involved in the present case is that the District Forum stated categorically in their order that not even a single document of treatment or prescription was produced before them from where it could be known that proper treatment was given to the patient and that all reasonable care and precaution was taken before starting the surgery. The State Commission in the impugned order has referred to the above observation of the District forum and upheld the order of the said Forum. However, from the contention raised by the petitioner in the grounds of the Revision Petition as well as in the affidavit filed before this Commission, it is made out that they had filed papers of the treatment record of the patient alongwith the consent form before the District Forum, but the same documents were ignored while passing the order by the District Forum. The State Commission have also referred to this observation of the District Forum in the order, but have failed to give independent observation on this aspect. In the absence of anything contrary, it is considered, in the interest of justice, that the documents pertaining to the treatment record of the patient should be taken into consideration while taking a decision in the present case. In case it is felt necessary, the OP hospital should be asked to produce appropriate evidence in support of these documents by way of examination of the persons who prepared such documents. The District Forum should thereafter bring out clearly whether there had been medical negligence in any form, in the treatment of the patient and whether the complainant was liable to be compensated for such negligence, if any.

Based on the discussion above, the present revision petition is allowed and the orders passed by the State Commission as well as the District Forum are set aside. The case is remanded to the District Forum with the direction that they should consider the documents with respect to the medical treatment of the patient and then decide the issue, preferably within a period of three months, bringing out clearly whether the complainant was liable to be compensated on account of the alleged medical negligence on the part of the OPs. The parties have been directed to appear before the District Forum for further proceedings on 28.07.2016.