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Judgment
Avm J. Rajendra, Avsm Vsm (Retd.),Presiding Member
This Revision Petition has been filed under Section 21(b) of the Consumer Protection Act, 1856 (the “Act”) against the order of the State Consumer Disputes Redressal Commission Haryana (State Commission) dated 11.09.2012 in First Appeal No. 129 of 2010. In the impugned order, the Appeal by Petitioners/Complainants was dismissed, thereby, upholding the order dated 15.09.2008 passed by the learned President and order dated 24.12.2009 passed by Shri Azad Singh Ghanghas, Member of the learned District Consumer Disputes Redressal Forum, Narnaul (hereinafter “District Forum”) and dismissed the order dated 15.09.2008 passed by Smt. Kumudani Srivastava in CC No. 270 of 2006, wherein the Complainant’s complaint was allowed.
For convenience, the parties in the present matter are referred as per the Complaint before District Forum.
Brief facts of the case, as per the Complainant, are that the deceased, wife of Complainant No.1 was pregnant for the second time in June 2005. During her pregnancy, she was regularly examined by Dr. Alka Yadav (OP-1) at Shanti Hospital, Narnaul. In August 2005, OP-1 informed Complainant No.1 that his wife was carrying twins, as reflected in the report dated 17.08.2005. On 13.03.2006, the deceased was admitted to Shanti Hospital for delivery. Although OP-1 completed the necessary preparations, she informed Complainant No.1 that she had developed jaundice and decided to delay the delivery, keeping her admitted until 15.03.2006. OP-1 repeatedly assured that there was no danger and that the jaundice would be controlled, but hre condition continued to worsen. On 15.03.2006, OP-1 advised Complainant No.1 to transfer his wife to Jaipur, which he did. She was admitted to OP-2 hospital at 7:00 A.M. on 15.03.2006, where OP-3 examined her and assured a speedy recovery. At about 1:30 P.M., Complainant No.1 was informed that twins had been delivered through an operation and that both the mother and babies were healthy. However, her condition deteriorated, leading to her admission to the ICU at 5:00 P.M. On 17.03.2006, OP-3 indicated the need for a second operation, which was performed by OP-4 on 18.03.2006, and was deemed successful. Despite assurances, the deceased remained in the ICU for 13/14 days. On 10.04.2006, OP- 5 and 6 discharged her despite her poor condition and she was brought back to Narnaul on 11.04.2006 and continued her prescribed medication. Unfortunately, during the night of April 13-14, 2006, she passed away. Consequently, Complainant No. filed a complaint and sought compensation of Rs. 16,60,000 with 12% interest from the OPs.
Top of Form. In their written version OPs denied the contentions and asserted that there was no negligence or deficiency and sought the complaint to be dismissed.
The learned District Forum vide Order dated 15.09.2008, in its majority view dismissed the complaint with following reason/ findings:
“The sole witnesses produced by the complainants as expert is Dr. Dev Raj Taneja who is simply MBBS. Thus an MBBS doctor cannot sit as an expert over the MD & MS doctors and thus the case of the complainants remains without evidence of expert. ... The complainants did not place on record the referral slip given by opposite party No.1 to the complainants at the time of shifting which is most important document to contain the details of treatment given by opposite party No.1 to the patient during her stay at the hospital of opposite party No.1. Thus it amounts to suppression of material facts. ... The complainants are not consumers of opposite parties No.3 to 6 because in their individual capacity the complainants did not pay anything to them in lieu of treatment from them. Moreover, opposite parties No. 3 to 6 were not the choice of complainants for treatment of their patient, rather they treated the patient as per their duty entrusted by their employer. The Opposite Party No.2. So far as opposite party No.2 is concerned this Forum has no territorial jurisdiction because the entire treatment of the patient was given at Jaipur. The cause of action, if any, arisen to the complainants is against the alleged negligence of treatment on the part of opposite parties No 2. To 6 and that alleged negligence was committed at Jaipur. Thus it is the place of commission of that alleged negligence and not the place of death of the patient which determines the territorial jurisdiction of this Forum. Moreover, the complainants have raised complex questions of law and facts through their complaint and to prove their case the complainants had to lead voluminous evidence both oral and documentary. Therefore, in view of the ruling cited as 2003 (1) Judicial Reports Consumer 84 it is not possible for a Forum under the Consumer Protection Act to decide such a case in its summary jurisdiction. Thus, viewed from any angle, the complaint deserves dismissal. In view of the above mentioned discussion the complaint is dismissed.”
There being a difference of opinion, the matter was referred to another Member of the District Forum under Section 14(2A) proviso, and vide Order dated 24.12.2009, the majority view dated 15.09.2008 dismissing the complaint was upheld with the following finding:
“In view of the above mentioned discussion the complaint is dismissed. I agree with the order dated 15.09.2008 passed by Shri Mohammad Shakir President of this Forum because it is well reasoned order. Hence, in terms of Proviso to Sub-Section (2-A) of Section 14 of Consumer Protection Act, 1986 the opinion of Shri Mohammad Shakir, President vide order dated 15.09.2008 and the opinion of the undersigned vide order dated 24.12.2009 is the order of the majority. File be consigned to record room after due compliance.”
Being aggrieved, the Complainant filed FA No. 129/2010, and the State Commission vide order dated 11.09.2012 dismissed the appeal with following observations: -
“At very outset, so far as the claim of the complainants against the opposite parties No.2 to 6 is concerned, the treatment was given by them at Jaipur and therefore the complaint against them was not maintainable at Narnaul. From the record it is established that the opposite parties have produced on the record expert report Ex.R-53 of Dr. Mitra Saxena, MBBS, M.C. (Obs.& Gynae) c/o Ashwini Saxena Hospital, Rewari and her affidavit Ex.R-54. The Expert Report Ex.R-55 of Dr. Shri Ram Aggarwal and his affidavit Ex.R-56 were also produced. Both the above stated expert reports Ex.R-53 and Ex.R-55 are supported with affidavits Ex.R-54 and Ex.R-56 wherein it was opined that there was no medical negligence on the part of Dr. (Mrs.) Alka Yadav. On the other hand, the complainants have miserably failed to establish any evidence rebutting the evidence produced by the opposite parties. Thus, for want of cogent and convincing evidence, the opposite party Dr. Alka Yadav cannot be blamed merely on the basis of affidavit of the complainant. It has come on the record that during the period the patient remained admitted with the opposite party No.1, the patient was given better treatment as per medical norms and merely that the patient did not get any relief from the treatment given by the opposite party No. I, the same cannot be termed as medical negligence and deficiency in service. The ratio of the above cited judgments fully applies to the instant case. Thus no case for interference in the impugned orders dated 15.09.2008 passed by President and order dated 24.12.2009 passed by Shri Azad Singh Ghanghas, Member of the District Forum while dismissing the complaint is made out. Hence, this appeal is dismissed being devoid of any merit. Consequently, the order dated 15.09.2008 passed by Smt. Kumudani Srivastava, whereby the complainant was allowed is hereby set aside.”
Being dissatisfied by the Impugned Order dated 11.09.2012 passed by the State Commission, the Complainant filed the instant Revision Petition No. 4824 of 2012 mainly advancing the following grounds in the Revision Petition:
A. The State Commission erred in dismissing the appeal by failing to properly consider crucial evidence, including the patient history sheet and Bed Head Ticket which detailed the patient's admission and discharge.
B. The State Commission overlooked the fact that jaundice with twin pregnancy was noted on 13.03.2006, and bile salts were detected. Acute fatty liver of pregnancy (AFLP) was suspected on 14.03.2006, at 5:30 PM, and a referral to a higher facility was suggested. But OP-1 did not provide test reports or clarify the timing of tests from DC Patho Lab. Also, the medical records provided by OP-1 did not align with the accounts of OP 2 to 6 on her condition during transfer to Jaipur and her admission there.
C. The State Commission failed to note for fact that she remained under OP-1’s care for over 36 hours, whereas for pregnancies beyond 34 weeks, termination should occur within 24 hours, while the present was 37 weeks pregnancy. Further, references to medical textbooks on this matter, as noted in Dr. DR Taneja’s affidavit, was ignored by the State Commission.
D. The State Commission did not note that the Affidavits of OP-4 and 5 contradicted the claims of OP-1, and the treatment records handed over to OP-2 to 6 were not produced, suggesting a conspiracy to falsify records. It failed to note that the prescription of OP-2 dated 15.03.2006 indicated normal readings. Yet. their written statement described serious condition of jaundice. These discrepancies in the prescription and written statements of OP 2 to 6 suggest negligence in addressing her deterioration.
E. The Fora below have failed to consider that the pleas of OPs-2 to 6 in their written statement were contradicted by respondents No. 3 & 4. The written statement from Durlabhji Hospital referred no bleeding at the time of surgery, but subsequent examinations revealed significant bleeding and complications, including pelvic hematomas and sepsis, indicating failure in post-operative care.
F. The Fora below failed to acknowledge that medical records and statements confirmed a second surgery to drain a hematoma, after which she patient developed multiple organ complications. It also failed to note that the hospital records claimed that she improved by the time of discharge, however, lab results showed a critically high serum bilirubin level of 29.78 mg, suggesting a need for further hospitalization and treatment.
The learned Counsel for Complainants emphasized the facts stated in the complaint and argued that OP-1 withheld the patient's medical records, leading to the District Forum to draw an adverse inference against the complainant for not producing the discharge summary. Regulation 1.3 of the MCI Regulation 2002 imposing duty on hospitals to retain patient’s records for at least three years. Since she was transferred from Narnaul to Jaipur under OP-1’s supervision, the discharge summary should have been retained by either OP-1 or by OP-2 to 7, who continued the treatment based on the records from OP-1. Further, it was asserted that OP-1 committed a grave error by delaying the diagnosis and transfer of the patient to a higher centre, thus contributing significantly to her untimely death. The discrepancies in medical records between OP-1 and OPs-2 to 7 suggested potential record fabrication to avoid liability. An adverse inference was sought against OP-1 and OPs-2 to 7 for not producing the affidavit of Dr. OP Yadav, who accompanied her during transit but did not corroborate the respondents’ version. Additionally, contradictions in OP-3’s records regarding the patient’s condition necessitated an adverse inference, as did unexplained post-operative bleeding and inconsistencies in the serum bilirubin levels recorded by OPs-3 to 7. The cause of death as acknowledged by OP-5, was due to AFLP, and the complainant’s expert opinion was deemed reliable, despite the respondents experts being criticized for their lack of access to crucial documents and failure to address the patient's condition at discharge. The OP-1’s detainment of the patient without adequate infrastructure and subsequent inadequate treatment by OPs-3 to 7 led to her untimely demise. On the issue of territorial jurisdiction, it was argued that since the treatment began with OP-1 in Haryana and continued under her supervision at OPs-3 to 7 in Jaipur, with her death occurring in Narnaul, the cause of action arose in both locations, making the complaint maintainable at either of the places.
Per contra, his arguments, the learned Counsel for Respondent 1/ OP-1 contended that the deceased patient had been diagnosed with a twin pregnancy along with pregnancy-induced hypertension and jaundice. OP-1, exercised due diligence, admitted the patient to the hospital on 13.3.2006 at approximately 8:30 PM, and obtained informed consent from the patient and Complainant No.1 as per standard protocol. The patient remained stable, fully conscious, and well-oriented overnight. Upon receiving the test results on 14.3.2006 at 6:30 PM, OP-1 suspected presence of Acute Fatty Liver of Pregnancy (AFLP) and, recognizing the unavailability of tertiary care facilities at Narnaul, prudently decided to refer her to a higher centre for specialized treatment. He asserted that the decision to transfer her to Jaipur was made in consultation with Complainant No. 1, who failed to act with necessary urgency by not returning to the hospital until 11:30 PM on 14.3.2006. Despite the delay caused by the Complainant, her condition remained stable. OP-1 ensured that all necessary referral records and discharge summaries were prepared and handed over along with all reports to Complainant No. 1 for further treatment. He asserted that there was no negligence attributable to OP-1 as OP-1 had no role in the surgical procedures conducted at Jaipur. OP-1 acted with all due skill and care, promptly diagnosing the patient’s condition and ensuring her timely transfer to a facility capable of providing the necessary tertiary care. He argued that the complainants failed to discharge their burden of proof, having provided no credible evidence or expert testimony to substantiate claims of negligence or improper care. He contended that OP-1 presented compelling evidence, including affidavits and expert reports, to demonstrate the adequacy and appropriateness of the medical care provided. He argued that their allegations of negligence are devoid of scientific or medical basis, being grounded only to affidavits without any corroborative evidence. The complainants have not shown any negligence or recklessness on the part of OP-1. It was underscored that the burden of proving such allegations lies with the complainants, who have, in this case, failed to present any credible expert evidence. OP-1, on the other hand, has provided substantial expert testimony, which unequivocally confirm that there was no negligence or deficiency in service.
The learned Counsel for Respondent 2/OP-2 argued that OP-2 had issued a policy in favour of OP-1 and was wrongfully impleaded and there was no privity of contract between OP-2 and the patient. He argued that OP-2 was neither a necessary nor a proper party and its role depended upon OP-1 being held guilty and the terms and conditions of the insurance policy being met.
The learned counsel for OPs-3 to 7 contended that upon admission, the deceased patient was critically ill with a full-term twin pregnancy. OPs-3 to 7 diagnosed acute fatty liver of pregnancy, toxaemia, and hepatic encephalopathy and advised immediate delivery. With the complainants' consent, that the obstetric procedures were performed successfully. Pre-delivery tests revealed elevated PT, impaired kidneys, and bilirubin levels of 15.8, necessitating administration of fresh frozen plasma. The learned counsel argued that despite extensive treatment, including 10 units of fresh frozen plasma, 4 units of blood, and platelets, the patient developed complications, necessitating a surgery and the complainants were informed of the same. They initially refused consent on 18.03.2006. Following persistent efforts by OPs-3 to 7, consent was eventually given later that evening, causing a delay in treatment. OPs-3 to 7 maintained rigorous care throughout and kept them informed at each stage. By 08.04.2006, significant improvement was evident, including normalized creatinine levels, normal urine output, and resolution of fever. He submitted that OPs-3 to 7 had advised that discharge could occur within 3-4 days, but they insisted on immediate discharge, which was reluctantly affected on 11.04.2006. OPs-3 to 7 had no information about any deterioration in her condition between 11.04.2006 and 13.04.2006, as proper rest was essential for recovery, and post-discharge conditions were unknown to them. He contended that the treatment provided by OPs-3 to 7 adhered to medical standards, and the complainants failed to substantiate any claims of negligence. Thus, this petition should be dismissed.
I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.
The main issue to be determined is whether there was negligence or deficiency in service on part of the OPs in treating the deceased. With respect to the evidence, it is a well-established principle that this Commission has limited jurisdiction to interfere in the concurrent findings of the District Forum and State Commission, except for any patent illegality, material irregularity or jurisdictional error. Hon'ble Supreme Court in Rajiv Shukla v. Gold Rush Sales & Services Ltd., (2022) SCC 31 dated 08.09,2022, wherein it was held as under:
"In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order [Goldrush Sales and Services Ltd. v. Rajiv Shukla, 2016 SCC OnLine NCDRC 702] the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act.”
In Narendran Sons v National Insurance Co. Ltd., 2022 SCC OnLine SC 1760 dated 07.03.2022, wherein it was held as under:
"The NCDRC could interfere with the order of the State Commission if it finds that the State Commission exercised jurisdiction has not vested in it by law or has failed to exercise its jurisdiction so vested, or has acted in exercise of its jurisdiction illegally or with material irregularity. However, the order of NCDRC does not show that any of the parameters contemplated under Section 21 of the Act were satisfied by NCDRC to exercise its revisional jurisdiction to set aside the order passed by the State Commission. The NCDRC has exercised a jurisdiction examining the question of fact again as a court of appeal, which was not the jurisdiction vested in it"
The Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. (2011) 11 SCC 269 dated 18.03.2011 has held as under:
“Also, it is to be noted that the revisional powers of the National Commission are derived from section 21(b) 0f the Act, under which the said power can be exercise only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the court below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent findings of two fora.”
Clearly, the State Commission examined the records including the expert report of Dr. Mitra Saxena, MBBS, M.C. (Obs.& Gynae) c/o Ashwini Saxena Hospital, Rewari and the Expert Report of Dr. Shri Ram Aggarwal and held that both the stated expert reports, supported with affidavits opined that there was no medical negligence on the part of Dr. (Mrs.) Alka Yadav. Therefore, I find no ground to interfere with the same. As regards the affidavit placed on record by Dr. Taneja, we are of the opinion that the District Forum has rightly held that the same is not by an expert in the field of gynaecology. Moreover, a scrutiny of the affidavit reveals that at various places it is illegible. Further, in the said Affidavit, Dr. Taneja himself stated that he is not sure of the exact negligence. Thus, in the absence of cogent evidence produced by the Complainants to discharge their primary burden of proof, negligence same cannot be attributed to the OP-1. In Devarakonda Suryasesha Mani v Care Hospital, Institute of Medical Sciences IV (2022) CP J7 (SC), decided on 21.03.2021, the Hon’ble Supreme Court has held:
“..2. Unless the appellants are able to establish before this Court any specific course of conduct suggesting a lack of due medical attention and care, it would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment which was administered to the spouse of the first appellant. In the absence of any such material disclosing medical negligence, we find no justification to form a view at variance with the view which was taken by the NCDRC. Every death in an institutionalized environment of a hospital does not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care.”
Considering the aforesaid discussions, there is no evidence on record to suggest any negligence or deficiency in service on the part of OP-1 in the treatment of the deceased. Consequently, no liability of OP-2 arises. Therefore, I do not find any reason to interfere with the detailed and well reasoned findings and order of the learned State Commission dated 11.09.2012. The instant Revision Petition No. 4824 of 2012 is, therefore, dismissed.
There shall be no order as to costs. All pending Applications, if any, also stand disposed of accordingly.