DINESH KAUSHAL vs K.K.KHURANA

THIS complaint has been filed by Shri Dinesh Kaushal, Arwind Kaushal, Sunita Rani and Smt. Ranjana Rani, all residents of Ward No. 13, Kurali, District Ropar, legal heirs of the deceased Sh. Kamal Nabh, who died on 10.1.2000 due to the alleged medical negligence on the part of the opposite party, Dr. K.K. Khurana, Chandigarh Medical Centre (CMC), Sector 17, Chandigarh, resident of Kothi No. 114, Sector 36-A, Chandigarh. The complainants along with their father were residing at Kurali, District Ropar in September, 1999. On 5.10.1999, the father of the com-plainants, Sh. Kamal Nabh was suffering from high fever. The complainants took him to the clinic of the opposite party - Dr. K.K. Khurana for medical treatment. Dr. K.K. Khurana examined the patient and asked for certain laboratory tests and investigations such as blood tests, x-ray, etc. Dr. Khurana, after examining all the test reports (Annexures C-1 to C-5) found that the patient was suffering from diabetes and tuberculosis and prescribed medicines as well as the diet. On 27.10.1999, the patient was taken to the opposite party, Dr. K.K. Khurana as his condition had not improved. Dr. K.K. Khurana advised the deceased to undergo some more tests and after examining these tests dated 27.10.1999 (Annexures C-7 and C-8) prescribed the medicines. There was no improvement in the condition of the deceased, so the complainants took the deceased again on 8.12.1999 to the opposite party, Dr. K.K. Khurana for further checkup as the deceased had periodic attacks of chest pain accompanied by swear sweating and shivering. They suspected that their father was suffering from some heart problem, but the opposite party diagnosed that the deceased was only suffering from diabetes and there was no heart problem and the shivering and chest pain was due to high blood sugar. Dr. K.K. Khurana advised the deceased to undergo more tests and after examining the reports dated 8.12.1999 (Annexures C-8 to C-12) prescribed medicines. Annexure C-12 indicates "No Appreciable Improvement". The condition of the deceased as per the averments made by the complainants further deteriorated and they took the patient to the opposite party, Dr. K.K. Khurana on 6.1.2001 when he was suffering from acute chest pain. Dr. Khurana directed the deceased to undergo few more medical tests (Annexures C-13 to C-17) and confirmed that the patient was suffering only from the diabetes and not from any heart problem, Annexure C-14 shows "Mild Improvement".

IT has been alleged that despite the treatment prescribed by the opposite party and number of visits made by the father of the complainants to the clinic of the opposite party, the condition of the father of the complainants did not show any improvement and he continued to suffer from severe pain. Again on 10.1.2000 when the father of the complainants had acute chest pain and became breathless, he visited the clinic of the opposite party, who prescribed certain medicines and advised the father of the complainants that he is not suffering from any serious ailment. When the father of the complainants reached his native place at Kurali at 7 p.m., his condition had deteriorated so much that he had acute pain and became breathless. So immediately the complainants took their father to the local civil hospital. There Dr. Raju attended him and advised ECG test. The ECG test was got conducted at Gupta Hospital at Kurali. On reading the ECG report, Dr. Raju informed the complainants that the father of the complainants had suffered severe heart attack and he referred him to Sector 32 General Hospital, Chandigarh, copy of the ECG report dated 10.1.2000 is enclosed as Annexure C-18 (internal Wall Infarction). Immediately, the complainants took their father to the Sector 32 General Hospital, Chandigarh but somehow on his way from Kurali to Chandigarh, the patient was suffering from acute pain and had become breathless suffering from severe heart attack and breathed his last and died, a copy of the death certificate enclosed as Annexure C-19. The complainants have prayed that they are entitled to get Rs. 9,52,800/- along with the medicine expenditure as well as fee charged by the opposite party and conveyance charges amounting to Rs. 6,000/-. Besides this the complainants are also entitled to get compensation of Rs. 2 lakhs on account of mental harassment and agony suffered by the complainants as well as an amount of Rs. 50,000/- as litigation expenses for medical negligence and gross deficiency in service on the part of the opposite party.

In reply, the opposite party has contended that the deceased was a critical patient of diabetes, anaemia and both lungs having tuberculosis which was clear from the clinical report brought by the complainants and the attendants of the patient. Besides this, he was found suffering from high fever, extensive weakness, prostration and Mark Toxemia. The complainants'' attendants were clearly informed by the opposite party that the condition of the patient demands immediate admission in a good hospital as the opposite party had no facilities for hospitalization. However, the complainants and their attendants insisted upon the opposite party - Doctor to attend the patient and for providing prescription till they take him to some hospital. On this, the opposite party examined the deceased with best of his ability and experience and after identifying the cause of sickness prescribed the medicines.

IN another preliminary objection, the opposite party alleged that the complainants did not state the facts correctly and it was on 5.1.2000 that his relations phoned to the opposite party about sweating and generalized pains of the body. Next day i.e. on 6.1.2000, the attendants of the patient brought the patient with 2-3 recommendations of close friend of the opposite party - Dr. K.K. Khurana from Kurali at 3 p.m. The opposite party examined the patient and told his attendants to get him admitted in hospital as his condition was not satisfactory and was very critical, because the patient was deteriorating day-by-day due to non-attendance and non-compliance of directions given by the opposite party. Still the attendants insisted repeatedly to take care of the patient then he told the attendants to continue the same treatment for some time and in case of any problem, shift him to any best hospital immediately. Thereafter, the opposite party lost contact with them. They were probably contacting some local doctors, who probably told the complainants to continue the treatment as advised by the opposite party as the complainants did not find any other major problem for adding or subtracting any change in line of treatment as advised by the opposite party. The doctor at the local hospital carried out ECG on 10.1.2000 and told the attendants of the patient that the patient had developed heart ailment. The attached ECG does not show any old heart problem. The changes could be due to recent developments in one week and critical condition after 6.1.2000 when the opposite party examined the patient. It has been alleged by the opposite party that the complaint is motivated with a motive to encash by claiming pension for 20 years. On merits, the facts of treatment of the patient have not been denied by the opposite party as stated in Annexures C-1 to C-8 and C-13. The opposite party has alleged in Para 3 of the reply that the medicines prescribed by the opposite party were not given to the patient as per the prescription. Even at this stage the attendants including the complainants were advised to get the patient admitted in some other hospital. The opposite party examined the patient on 27.10.1999 and found improvement in his condition and advised the attendants to continue the same treatment. At that time there was no symptoms of heart problem. The blood sugar was so high as is clear from the Annexure C-3 showing +++, which is very high sugar. Similarly BH was 8.2 and blood sugar shot upto 244 against maximum 110. The clinical report Annexure D-3 shows very bad Tuberculosis. After the prescription by the opposite party the urine sugar came down to +, however, the condition of blood sugar also showed improvement when the patient was shown to the opposite party on 27.10.1999. The opposite party has prayed that the complaint be dismissed in view of the submissions made in the report with special costs of Rs. 11,000/- which the opposite party has suffered on account of frivolous litigation.

THE complainants as well as the opposite parties have led their respective evidence. On behalf of the complainants evidence has been led in the shape of affidavits of complainant No. 1, Sh. Dinesh Kaushal and Dr. P.D. Pathak (Retired) P.C.M.S. Dr. K.K. Khurana, opposite party, has filed his own affidavit in evidence. We have heard Mr. Mukund Gupta, Advocate, learned Counsel for the complainants and the learned Counsel for the opposite party, Mr. H.S. Awasthi, Advocate. We now proceed to examine the rival contentions of the parties. Mr. Mukund Gupta, Advocate has contended that the patient was under constant treatment of the opposite party, Dr. K.K. Khurana from 5.10.1999 to 10.1.2000. The opposite party treated the patient for diabetes and for tuberculosis but failed to get the improvement in the heart ailment for which he was suffering right from the beginning. This fact came to light when the deceased was admitted in the Gupta Hospital in Kurali, where the ECG was taken and revealed from the ECG report that it had ''Interior Wall Infarction'' (Annexure C-18). The learned Counsel for the complainants also pointed out that on 6.1.2000 the patient was checked by the opposite party, the patient has been seen second time on 10.1.2000 on the same slip whereby previous medicines were stopped and new set of medicines were given and the patient died due to the negligent medical treatment provided by the opposite party. However, in his cross-examination, opposite party has contended that he examined patient on 6.1.2000 and not on 10.1.2000. The relevant portion of the cross-examination is reproduced as under : "I did not consider it necessary to advise for the ECG of the patient. I did not consider it necessary that a patient should waste his time over the test of his sputum and culture as my diagnosis of the disease of the patient was very clear and specific. Each time the patient was brought to me, I found him critically ill and advised his attendant to get him admitted for the specialized treatment at once but no attention seems to have been paid regarding it. I had also mentioned on the ticket regarding treatment of the patient that he can show to him after a period of three months. This was written by me on 8th December, 1999. After seeing the second report of Dr. Sudhir Goyal dated 8.12.1999, I did not think it necessary to change the line of treatment of the said patient. I never wrote on the ticket for treatment of the patient that he should be taken for specialized treatment. I had given the attendant a chit regarding it once, which he did not honour. I have no record regarding such chit. I examined the patient i.e. father of the complainant on 6.1.2000 at my residence between 2 p.m. and 3 p.m. I did not advise the patient fasting sugar test on 6.1.2000. The patient never came to me after 6.1.2000 and it is incorrect to suggest that I examined him on 10.1.2000 and no prescription was issued by me to the patient on 10.1.2000. I have no knowledge about the death of the patient on 10.1.2000. I put the patient right on day on oral anti-diabetes treatment. The patient did show a little improvement when he came on the second visit to me. I do not remember if I wrote on the prescription about the giving of insuline to the patient...."

ON the other hand, the learned Counsel for the opposite party, Mr. H.S. Awasthi, Advocate has contended that the line of treatment given by Dr. K.K. Khurana, opposite party for diabetes and for tuberculosis has been on the correct line of medical treatment. The patient has also been improving and at nowhere, it has been proved that the condition of the patient has been deteriorating as and when the opposite party - Dr. K.K. Khurana examined the patient. The patient was not at all suffering from any heart ailment whenever he has been examined by the opposite party. He contended that if the opposite party had seen patient on 10.1.2000 he should have been confronted with the Annexure C-13 prescription which did not happen.

IT has been deposed by Dr. P.D. Pathak (Retired P.C.M.S.) in his affidavit filed in evidence on behalf of the complainants that the line of treatment for diabetes and tuberculosis could be different than prescribed by the opposite party, however he did not contradict the treatment given by the opposite party - Dr. K.K. Khurana. Learned Counsel for the complainants, Mr. Mukund Gupta, Advocate has relied on the judgments reported in II (1999) CPJ 420; Dr. Anumalla Satyanarayana v. K. Shankar of Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad and S.A. Qureshi v. Padode Memorial Hospital and Research Centre, II (2000) CPJ 463, of Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal. In the case of Dr. Anumalla Satyanarayana (supra), the complainant had undergone investigations in Apollo Hospital and was told that due to negligence and improper treatment for 6 days initially gangrene was formed, and there was danger to his life unless the leg was amputated upto thigh immediately. Thereafter, the right leg of the complainant upto thigh was operated and amputated causing permanent disability to the complainant. It was held that the last 10 days prior to coming to Hyderabad and getting admitted in Apollo Hospital were crucial and the fact that the leg had to be amputated due to gangrene established that there was negligence on the part of the opposite party. The Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in the case of S.A. Qureshi (supra), found that the history sheet of the treatment of the complainant had been lost at the hospital/opposite party and the same was found to be an attempt to suppress certain facts likely to be revealed from the history sheet. The complainant had suffered 50% disability. It was held to be a case of medical negligence and compensation was awarded. These two cases, relied on by the learned Counsel for the complainants are the proved cases of medical negligence in the given facts and circumstances of each case.

The learned Counsel for the opposite party, Mr. H.S. Awasthi has relied on the following judgments : (1) Kailash Kumar Sharma v. Dr. Hari Charan Mathur, III (1997) CPJ 41 (NC)=1997 (2) CPR 126, decided by National Consumer Disputes Redressal Commission, New Delhi. (2) Consumer Protection Council & Ors. v. Dr. M. Sundaram & Anr., II (1998) CPJ 3 (NC)=1997 (2) CPR 164, decided by National Consumer Disputes Redressal Commission, New Delhi. (3) Cheroth Suhara v. Dr. K.K. Subramonian & Anr., 1995 (1) CPR 258, decided by State Consumer Disputes Redressal Commission Kerala : Thiruvananthapuram. (4) Ramji Lal v. M/s. Sarvodaya Medical, II (1995) CPJ 234 (NC)=1995 (1) CPR 833, decided by National Consumer Disputes Redressal Commission, New Delhi.

COMING to the case in hand, the complainants failed to establish that the line of treatment prescribed by the opposite party - Dr. K.K. Khurana was totally contrary to the established medical standard regarding the treatment of the disease. We also find from perusal of the reply as well as the affidavit filed by Dr. K.K. Khurana that he time and again told the complainants that the condition of the patient was rather serious and that he should be taken to some competent hospital for treatment and it was because of the complainants in persisting to show the deceased to Dr. K.K. Khurana that the opposite party continued to see him and prescribed treatment which according to him was as per the established medical standard for the treatment of the disease of diabetes and Tuberculosis which is clearly indicative of the faith which the patient and the complainants had in the opposite party. In other words, the competence of the opposite party - Dr. K.K. Khurana to medically treat the illness of the patient cannot be doubted. Dr. K.K. Khurana has categorically denied that there was any negligence or carelessness on his part and none of the documents relating to the various tests conducted at the laboratory showed any deterioration in the condition of the patient. It may also be pointed out that Dr. P.D. Pathak, who has filed his affidavit in support of the complainants'' case, has not clearly and specially stated about the treatment prescribed by the opposite party - Dr. K.K. Khurana to be contrary to the established medical standard though he has deposed about some treatment which according to him was a better treatment for the illness suffered by the patient. Halsbury in his Laws of England, dealt with the degree of skill and care required by a medical practitioner and observed as under : "Degree of skill and care required-The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires : a person is not liable in negligence because someone else of better skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art although a body of adverse opinion also existed among medical men."

(Halsbury''s Laws of England, Volume 26, at Page 17 which has been quoted in Para 17 of the judgment of the State Consumer Disputes Redressal Commission, Delhi in the case of Lt. Col. A.K. Chaturvedi (Retd.) v. Union of India & Anr., 2001 CTJ 513 (CP)).

IN view of the foregoing discussion, we are of the considered opinion that the patient has been treated by the opposite party, Dr. K.K. Khurana on the correct line of treatment and there has been no medical negligence in service on his part while he examined the patient and prescribed the medicines. The complainants failed to produce any evidence in support of their complaint regarding medical negligence and deficient service on the part of the opposite party. The complaint lacks merit and is resultantly dismissed with no order as to costs. Copy of the judgment be supplied to the parties free of charges. Complaint dismissed.