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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
J.M. Malik, Presiding Member Dr. S.M. Kantikar, Member
SARITA - Appellant
Versus
UNION OF INDIA AND OTHERS - Respondents
Original Petition No. 36 of 2000
Decided on : 04-09-2014
Mr. Devender Verma, Advocate, for the Appellant; Ms. Jagriti Singh, Advocate, for the Respondent
The main legal point established in the judgment is that the standard of care and reasonableness in medical treatment should be determined based on expert opinions, medical literature, and established legal principles, and a single failure in treatment does not necessarily constitute medical negligence.
Headnote:
Medical Negligence - Consumer Protection Act - Section 21 - [Consumer Protection Act, 1986, Section 21] - The court discussed the medical negligence allegations under the Consumer Protection Act, 1986, Section 21. The court analyzed the medical records, expert opinions, and medical literature to determine the standard of care and reasonableness in the treatment provided by the opposite parties. The court found no deviation from normal practice and concluded that there was no medical negligence on the part of the opposite parties.
Fact of the Case:
The complainant alleged medical negligence in the treatment of her son, who died due to negligence and carelessness on the part of the doctors. The complainant sought damages and compensation for the alleged medical negligence.
Finding of the Court:
The court found that there was no medical negligence on the part of the opposite parties based on the expert opinions, medical literature, and judgments of the Hon'ble Supreme Court.
Issues: The issues revolved around the alleged medical negligence in the diagnosis, treatment, and referral of the patient by the opposite parties.
Ratio Decidendi: The court's decision was based on the analysis of medical records, expert opinions, and medical literature, which led to the conclusion that there was no medical negligence on the part of the opposite parties.
Final Decision: The court dismissed the complaint and directed the parties to bear their own costs.
ORDER
Dr. S.M. Kantikar, Member -The Complainant, Smt. Sarita, filed this complaint, under Section 21 of the Consumer Protection Act, 1986 against the Air Force Hospital, Gorakhpur, UP, OP-3, alleging medical negligence in treatment of her 9 years old son, Master Aditya Vikram, who died due to negligence and carelessness on the part of OPs-4 and 5, i.e. Dr. Arun Dutta, Dr. Manisha Bishwas, contesting OPs and Dr. Ashwini Kumar, proforma OP. She prayed for action against the OPs-4 and 5 claiming damages to the tune of Rs. 25,00,000. The complainant's husband was serving under control of OPs-1 and 2. The complainant's son was legally entitled for medical treatment from OP-3.
2. Master Aditya, fell sick, on 26.3.1998, for which the Complainant took her son to the hospital of OP-5, Dr. Manisha Bishwas for medical treatment. The OP-5, after examining Master Aditya Vikram, advised for a CT Scan of head from Gomti Medical and Diagnostic Centre, Gorakhpur. It was performed on 26.3.1998. After going through the CT Scan report, the OP-5 told the Complainant not to worry, as it was just a minor disease, having a blot on the right side of head. The OP-5 started the treatment. On 27.3.1998, Master Vikram was taken for confirmation of TB disease, which was found to be negative. The treatment was continued, but no improvement was seen in the health of master Vikram.
3. On 28.3.1998, Master Vikram's condition deteriorated. The OP-5 was requested by the Complainant to take an expert opinion from Gorakhpur Medical College. But, OP, again assured the Complainant that there was absolutely nothing to worry, there is no need for any reference to any other place or to any medical expert and OP-5 continued her treatment with ALBEN DOZOLE , till 31.3.1998. The condition further worsened, Master Vikram started vomiting, left hand and leg became paralyzed which was brought to the notice of OP-5 and requested to take the opinion of Neuro-Surgeon. But OP-5 turned a deaf ear to it. She flatly refused to refer the patient to a better medical institute. Hence, Master Aditya, further deteriorated with continued vomiting for 3 days, with fever and headache. Thereafter, OP-5 put the patient on dangerously ill-list (DIL). On 3.4.1998, the doctor falsely assured the Complainant, again that Master Aditya would be preferably alright, within a few days. On 4.4.1998, at the request of the Complainant, her husband and a few well-wishers, the OP-5 referred the case to Command Hospital, Lucknow, on 5.4.1998, along with one attendant. Accordingly, the Complainant and her husband boarded the available train for Lucknow, but unfortunately, Master Vikram died at Gonda Railway Station which was declared by the Railway Doctor. Hence, the body was brought back to Gorakhpur and handed over to OP-3, which was kept in Mortuary and handed over to Police, for post-mortem report. On 7.4.1994, the post-mortem was performed by Dr. C.P. Srivastava at District Hospital, Gorakhpur (Annexure-C-2). Therefore, alleging medical negligence on the part of OPs-4 and 5 in the diagnosis treatment and the deficiency in service in delayed referral to the higher centre, the complainant filed this complaint and prayed for total compensation amount of Rs. 25 lacs with 12% interest, p.a.
Defence:
4. The opposite parties 1 to 5 filed their affidavit through Sqn. Ldr. D. N. Gupta of 12 AF Hospital, Gorakhpur (U.P.). The first point taken in defence was that the complainant has no jurisdiction to file this case under CP Act, because the deceased boy, Master Aditya Vikram, was not a consumer. Also, the entire treatment was free of cost i.e. such free service would not fall, within the ambit of service under Section 2(1)(o) of the Consumer Protection Act, t986. Further, the OP-5, Dr. Monisha Biswas filed an affidavit-evidence and her educational qualifications as MD Pediatrics. She has admitted that Master Vikram was brought to her, on 26.3.1998, with a complaint of weakness in the left upper and left lower limb.
