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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and
Dr. S.M. Kantikar, Member
Appeared at the time of arguments through video conferencing
Shiv Kumar Sharma and Anr. – Petitioners
versus
St. Stephens’ Hospital and Ors. – Respondents
Revision Petition Nos.2699 of 2008 and 2912 of 2008
Decided on 8.7.2021
Consumer Protection Act, 1986 – Section 21(b)(Consumer Protection Act, 2019 - Section 58) – Revision Petitions – Against the Order dt. 10.03.2008 passed by State Commission - Complainant/Patient met with road accident and after being administered first-aid at Govt. Hospital, was referred to Respondent hospital, where he was diagnosed with femoral fracture and operated under this assumption – Respondent Hospital failed to diagnose fracture of neck femur, leading to medical complications – Complainant/Patient claimed damages of Rs. 16,97,800 for medical negligence – Respondent Hospital alleged failure to disclose initial first aid treatment leads to suppression of facts – Distt. Forum directed Respondents to pay damages of Rs. 5 Lakhs with costs – Respondent Hospital and Respondent no.2 (Insurance company) appealed award before State Commission – State Commission modified award to Rs. 2.5 Lakhs on grounds of limited negligence - Treating doctor failed in the duty of care in administration of treatment – National Commission upheld the Distt. Forum award and dismissed the State Commission order – Respondent Hospital directed to pay Complainant/Patient Rs. 5,00,000/- with interest and costs.
Held: The Opposite Party No. 1, in their Written Version, denied the allegation and submitted that the Complaint was false, misconceived and not maintainable. The Complainant suppressed the facts that he was initially treated at the Ambala Government Hospital, wherein the X-rays showed only fracture of femur shaft. The Opposite Party No. 1 denied that the fracture in loin bone had occurred during surgery performed at their hospital.
The District Forum after hearing both Parties, partly allowed Complaint vide Order dated 20.06.2006 and directed the Opposite Party No. 1 to pay Rs. 5.00 lac to the Complainant and Rs. 5,000/- as cost of litigation.
The State Commission disposed both the Appeals vide common Order dated 10.03.2008 and modified the quantum of award. The State Commission directed the hospital to pay a lump sum compensation of Rs. 2.5 lakh to the Complainant.
Being aggrieved by the Order of State Commission, the instant cross Revision Petitions were filed. The Hospital (Opposite Party No. 1) filed Revision Petition No. 2912 of 2008 for dismissal of Complaint whereas the Complainant filed Revision Petition No. 2699 of 2008 for enhancement of compensation.
The District Forum awarded Rs. 5.0 lac; whereas the State Commission reduced the award to Rs.2.5 lac. We disagree with the view taken by the State Commission to reduce the quantum of compensation, that there was limited deficiency and negligence from the Opposite Party No. 1.It is to note that after the treatment, subsequently, the Complainant underwent operation twice in Hedgewar Sansthan at Delhi but his physical condition did not improve. The doctors informed him about no possibility of complete cure in the future. He was the sole earning member in the family. The Complainant had been suffering since the year 2003 and we are now in 2021. Considering the loss of earning capacity and future prospects, in our view, the compensation of Rs.5.0 lac is just and fair. (Paras 5, 6, 8, 9 & 26)
Result: Result: Revision Petition of Complainant/Patient partly allowed, Revision Petition of Respondents Dismissed.
ORDER
Dr. S.M. Kantikar, Member—Both the Revision Petitions have been filed against the Order dated 10.03.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the “State Commission”) in Appeal No. 732 of 2006, which partly allowed the Appeal and modified the Order of the District Consumer Disputes Redressal Forum (hereinafter referred to as the “District Forum”), wherein the award of compensation of Rs. 5 lakh was reduced to Rs. 2.5 lakh.
2. For the convenience, the Parties are referred as placed before the District Forum, such that, the Complainant is Shiv Kumar Sharma, the Opposite Party No. 1 is St. Stephen’s Hospital, New Delhi and Opposite Party No. 2 is the New India Assurance Co. Ltd.
3. Brief facts: On 18.08.2003 the Complainant Mr. Shiv Kumar (hereinafter referred to as “the patient”) sustained bodily injuries due to road accident. After First-Aid at Ambala Government Hospital, on 21.08.2003 he was referred to St. Stephens Hospital, Delhi (Opposite Party No.1). Dr. Mathew Verghese examined him and diagnosed it as fracture of femur (thigh bone) on right side. On 02.09.2003 he was operated and a rod was implanted from the loin to the thigh and he was discharged on 08.09.2003. The doctor informed about successful operation. During follow-up after one month, X-ray of operated site was taken and seen by Dr. Bedi of Opposite Party No. 1 Hospital. He assured that it would take some more time for getting everything cured. It was alleged that even after 6 months the patient was unable to walk due to pain. In the month of May, 2004 because of unbearable pain in operated leg, the patient contacted Dr. Neeraj Garg who examined the patient and took X-rays. He opined that there was a fracture of the loin bone, and advised the patient to approach the same hospital where he was first operated. However, the patient met his family doctor, Dr. Arvind Saxena, who saw all the X-ray films and opined that the fracture had occurred during the 1st operation in the Operation Theatre (OT) of the Opposite Party No. 1 Hospital. Then, the Complainant met Dr. Bedi and showed opinions of two doctors. Dr. Bedi, in order to protect the doctors at the Opposite Party No. 1 Hospital, told that the fracture might have occurred due to fall somewhere else. On 06.12.2003, the patient was advised for bone grafting as there was unsatisfactory union of bones. However, the patient was not willing to undergo bone grafting. On 04.06.2004, the patient came back to the Hospital with the complaint of pain in right hip and thigh. The X-ray revealed displaced intra-capsular fracture of neck femur and he was advised to undergo osteosynthesis- a valgus osteotomy and fixation with angled blade plate. The cost of operation was told about Rs. 45,000/-. Because of financial hardship the Complainant did not opt for further surgery and approached the nearby Dr. Hedgewar Arogya Sansthan”, (Govt. Hospital) Karkardooma, Delhi wherein on 21.07.2004 he was operated by Dr. Ashish and Niraj Garg.
4. Being aggrieved by the alleged negligent treatment at the Opposite Party No. 1 Hospital, the Complainant filed the Complaint No. 481/2004 before the District Forum, Tis Hazari, Delhi and claimed a total amount of Rs. 16,97,800/-.
5. The Opposite Party No. 1, in their Written Version, denied the allegation and submitted that the Complaint was false, misconceived and not maintainable. The Complainant suppressed the facts that he was initially treated at the Ambala Government Hospital, wherein the X-rays showed only fracture of femur shaft. The Opposite Party No. 1 denied that the fracture in loin bone had occurred during surgery performed at their hospital.
6. The District Forum after hearing both Parties, partly allowed Complaint vide Order dated 20.06.2006 and directed the Opposite Party No. 1 to pay Rs. 5.00 lac to the Complainant and Rs. 5,000/- as cost of litigation.
7. The Opposite Parties preferred two separate appeals before the State Commissio
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