DR. JATINDER KUMAR vs RATTAN LAL & 4 ORS

Late Gagandeep Singh, aged about 20 years at the relevant time, was brought to Civil Hospital Hoshiarpur on 10.12.2010 and was admitted in the emergency ward of the aforesaid hospital. He was suffering from headache, fever and pain, besides loose motion. He was attended by Dr. Jatinder Kumar, petitioner in Revision Petition No.1225/2015, who, after recording the history of the patient, advised Complete Blood Court, Malaria Parasite Slide, RBS, Blood Urea, Serum Creatinine, Serum Electrolytes-Sodium, Potassium, Calcium, Widal Test for conducting typhoid and X-ray Chest. . The platelets of the patient were found to be 12000/-. It later transpired that Malaria test was not done in the hospital. The patient was advised Injection Voveran, Injection Stemetil, Injection Zenflox, Injection Cefamed, Injection Aciloc and Tablet Cynim. He was also given Dextrose in order to maintain hydration. Since the platelet counts were only 12000, he was advised Platelets Rich Plasma. When the patient was again examined by Dr. Jatinder Kumar on 11.12.2010, he did not have fever, his condition was better and his platelet count was increased to 19,000/-. In the night, he was examined by another Dr. Daljit Singh Khella. At that time, his condition was found to be serious. He was shifted from Civil Hospital to Dayanand Medical College and Hospital Ludhiana. The patient remained hospitalized in Dayanad Medical College and Hospital till 19.12.2010 when he expired.

Alleging negligence on the part of the doctors including the pathologist in Civil Hospital Hoshiarpur, the complainants, who are the parents of the deceased, approached the concerned District Forum by way of a complaint. Dr. Jatinder Kumar as well as the pathologist of the hospital Dr. Seema Garg also impleaded as the opposite parties.

The complaint was opposed by the opposite parties inter-alia on the ground that there was no negligence in treatment of the patient.

The District Forum vide its order dated 30.10.2013 directed all the opposite parties to pay 9,22,400/- to the complainants along with interest on that amount @ 9% per annum from the date of filing of the complaint.

Being aggrieved from the order passed by the District Forum, the opposite parties filed three separate appeal being F.A. Nos.1366, 1371 and 1400 of 2013. Vide impugned order dated 27.02.2015, the State Commission allowed the appeal filed by Dr. Seema Garg, Pathologist in Civil Hospital Hoshiapur but dismissed the remaining two appeals, thereby maintaining the order of the District Forum against other opposite parties. Being aggrieved, they have filed two separate revision petitions being R.P. No.1225/2015, which has been filed by Dr. Jatinder Kumar and R.P. No.2016/2015, which has been filed by Punjab Health System Corporation and Civil Hospital, Hoshiarpur.

Dr. Rajesh Mahajan, Professor of Medicine in Dayanand Medical College and Hospital was examined as a witness before the District Forum. In his statement before the District Forum, he inter-alia stated that when the patient was brought their hospital, he was in serious condition having deranged LFT, RFT, thrombocytopenia with bilateral infiltrates in chest x-ray. His malaria antigen test was conducted in Dayanand Medical College and Hospital, which turned out to be positive. In the opinion of Dr. Rajesh Mahajan, complicated malaria was the cause of the death of the deceased.

It is an admitted position that Dr. Jatinder Kumar had advised Malaria Parasite Slide test to the patient though he did not advise Malaria Antigen Test. The aforesaid test is known as Falciparum Malaria Test. Malaria Antigen Test is also known as Card Test. Malaria was diagnosed only in the card test, even in Dayanand Medical College and Hospital and it was shown to be negative in the slide test. No medical literature has been placed before me to show that Malaria Antigen test, known as Card Test, was mandatory for a patient exhibiting symptoms, which could be taken as symptom of malaria. It has come in the deposition of Dr. Rajesh Mahajan that malaria slide test is the test of gold standard. It that is the position, Dr. Jatinder Kumar cannot be said to be negligent in the treatment of the deceased on account of he having advised malaria parasite slide test but not having advised card test. If he in his judgment felt that malaria parasite slide test would be the appropriate test to be conducted in respect of the patient examined by him that would not be a case of negligence in the treatment of the patient. It would not be possible to say that a doctor of average intelligence, in such circumstances would have advised only the card test and not malaria parasite slide test. Had Dr. Jatinder Kumar not advised even malaria parasite slide test there could have been justification for saying that he was negligent in the treatment of the patient but giving preference to one mode of investigation of another cannot be turned as a case of medical negligence. Therefore, I have no hesitation in holding that the complainant has failed to prove any negligence on the part of Dr. Jatinder Kumar in the treatment of the deceased.

However as far as the petitioners in R.P. No.2016/2015 are concerned, the negligence on the part of their doctors/para medical staff in the treatment of the deceased, while he was in Civil Hospital Hoshiarpur can hardly be disputed. It is an admitted position that Dr. Jatinder Kumar advised malaria parasite slide test when he examined the patient on 10.09.2010. It is also an admitted position that the above referred test was not performed despite the advice given by Dr. Jatinder Kumar. Once blood sample of the patient had been taken, it was the duty of the paramedical staff of the hospital to take the said sample to the laboratory where the test was to be performed. That having not been done, the hospital is vicariously liable for the negligence on the part of its paramedical staff. If the hospital has to pay the compensation for the negligence of a member of paramedical staff, it will be open to it to take such action as may be available in law against the negligent employee but, as far as the complainants are concerned they are entitled to compensation from the hospital on account of the negligence exhibited by its paramedical staff in not taking the blood sample of the patient to the laboratory for carrying out the malaria parasite slide test. Had the test been done immediately after the blood sample was taken, it would have been possible for the doctor to advice medicines for treatment of malaria, in case the test was found to be positive. Not carrying out a vital test advised by treating doctor, by itself was a negligent act on the part of the paramedical staff of the hospital in undertaking the treatment of the patient. Therefore, the negligence on the part of the employees of Civil Hospital Hoshiarpur is writ large in the present case.

For the reasons stated hereinabove, the revision petition no.1225/2015 filed by Dr. Jatinder Kumar is allowed and the orders of the fora below to the extent they have directed payment of compensation by Dr. Jatainder Kumar as well is set aside. The revision petition no.2016/2015 filed by Punjab Health System Corporation and Civil Hospital Hoshiarpur is dismissed with no order as to costs. The payment to the complainants shall be made by them within four weeks from today. The amount if any deposited by Dr. Jatinder Kumar with the State Commission as well as with this Commission shall be refunded to him along with interest which may have accrued thereon. The fee of the Amicus Curiae be paid as per the scale approved by the Registry.