Jagtar Singh Vs. Post Graduate Institute of Medical Education and Research and Others - Court Judgment

K.K. Srivastava, President:

1. This is an appeal filed against order dated 2.6.2003 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh [for short hereinafter referred to as the District Forum] in Complaint Case No. 1199 of 1998, Jagtar Singh v. P.G.I., Chandigarh and 2 Others. The District Forum has dismissed the complaint on the ground that the appellant/complainant has not been able to prove medical negligence on the part of O.Ps. in the treatment of his own son Shri Rakesh Kumar (since deceased). The appellant filed the complaint in the District Forum alleged, inter alia, as under:

2. Shri Rakesh Kumar, since deceased, was suffering from fever and he was taken by the appellant to Barnala Nursing Home, Cheeka in Kaithal District in the State of Haryana and there he was examined by Dr. Ranbir Bansal at a Nursing Home who prescribed some medicines and diagnosed that Shri Rakesh Kumar was suffering from dog bite/Rabies. Dr. Ranbir Bansal referred the son of the appellant to Rajindra Hospital at Patiala where doctors did not handle the case due to lack of facilities in the hospital. The appellant, thereafter, brought his son Shri Rakesh Kumar in the night of 9.7.1998 to the Hospital situated in Sector 22, Chandigarh for treatment of Rabies. The doctors at Sector 22 Hospital, Chandigarh were of the opinion that Shri Rakesh Kumar was not suffering from Rabies as he was drinking water. The complainant ultimately brought his son Shri Rakesh Kumar to the emergency wing of Post Graduate Institute of Medical Education and Research, Chandigarh (for short hereinafter referred to as the PGI) where he reached about 10.30 p.m. Shri Rakesh Kumar was attended by Dr. Uppal and Dr. Bharat Kumar Gupta who examined him. After laboratory test of blood and corneal smear, the aforesaid doctors diagnosed that Shri Rakesh Kumar was suffering from tuberculosis and informed the appellant that a treatment of minimum six months was required with admission in the hospital for at least three months. After indoor treatment in the hospital, the patient will have to take medicine at home and then he would be all right. On 10.7.1998 at about 10.00 a.m., the doctors at PGI got x-ray and blood test of Shri Rakesh Kumar and reported that he was not suffering from tuberculosis as earlier detected by Dr. Uppal and Dr. Bharat Kumar Gupta. At about 3 p.m., Shri Rakesh Kumar was referred to Borstal ward of PGI and a bottle of glucose was administered along with some other medicines. At about 6 p.m. the same day, doctors without conducting further laboratory test came to the conclusion that the patient was suffering from Rabies and there was no treatment of the said disease. A skin test was also done the same day at PGI, which showed that Shri Rakesh Kumar was not suffering from Rabies. The condition of Shri Rakesh Kumar started deteriorating and became worse and ultimately Shri Rakesh Kumar died on 11.7.1998.

3. The grievance of the appellant/complainant was that the death of his son was caused due to wrong diagnosis and wrong treatment/medicines. Shri Rakesh Kumar died thus due to negligence and deficiency in service on the part of O.Ps. The complainant prayed for award of compensation to the tune of Rs. 4 lacs, which included expenses on the medicines also.

4. Notices were issued to the O.Ps. who filed reply and contended, inter alia, that Shri Rakesh Kumar (since deceased) was promptly attended by a team of doctors in the emergency wing of PGI on 8.7.1998 and they carried out all possible investigations and treatment. The out-patient card showed that the deceased was brought to PGI on 8.7.1998 and not on 9.7.1998 as was alleged in the complaint. The patient Shri Rakesh Kumar had a history of fever and dog bite and was afraid of water and used to cough out water and he could drink only the small quantity of water with the help of attendants. The cerebrospinal fluid (CSF) test and blood test were carried out. The CSF test showed elevations in the leukocyte count and normal sugar and protein concentration and which showed that the patient was suffering from viral encephalitis. They took a plea that Rabies is also a viral disease and caused viral encephalitis. Since the symptoms were indicative of Rabies, the patient was shifted to communicable disease ward on the night of 9.7.1998. The O.P. Nos. 2 and 3-Dr. Uppal and Dr. Bharat Kumar Gupta examined and viewed the patient for the first time on the night of 9.7.1998 and clinically observed that classical symptoms of Rabies i.e., fever, hydrophobia, aero-phobia coupled with the history of dog bite and suspected it to be a case of Rabies. The treatment for tuberculosis was thus stopped. With a view to confirm the diagnosis of Rabies, further tests “corneal smear” and “skin biopsy” were done in the morning on 10.7.1998 to detect ‘Antigens of Rabies virus. The patient was put on supportive treatment by Dr. Uppal and Dr. Bharat Kumar Gupta as there was no specific treatment of Rabies. The patient, however, could not survive and expired in the intervening night of 10/11.7.1998 before the above test reports were received.

5. It was specifically alleged that Dr. Uppal and Dr. Bharat Kumar Gupta never diagnosed the patient to be suffering from tuberculosis nor the patient was referred to Borstal ward because there was no such ward in the PGI. The patient was given a standard treatment by the O.Ps. in such like situation and there was no departure from traditional method of treatment. It was alleged that there was no specific treatment for rabies. The patient was fed through Ryles Tube as he was not in a position to swallow liquids for fulfiling the nutritional requirement and was given juices, tea, milk and biscuits along with intravenous fluids. There was no fault with the procedure adopted by the doctors as they felt that different tests had to be carried out to identify the disease and there was no nexus between the procedure adopted for treatment and death of the patient. The O.Ps. treated the patient for a day and in the circumstances, it could not be held that the condition of the patient worsened due to want of proper treatment by the O.Ps. or it was due to lack of reasonable care and attention on the part of O.Ps. On the other hand, the patient was treated with utmost care and attention on the part of O.Ps. On the other hand, the patient was treated with utmost care and attention.

6. The appellant/complainant filed replication and also brought on record his affidavit. The O.Ps. filed affidavits of Dr. Bharat Kumar Gupta, Senior Resident and Dr. Rajan Uppal.

7. The District Forum, as mentioned above, accepted the version of the O.Ps. and held that the complainant failed to lead cogent evidence and convincing evidence to prove negligence on the part of O.Ps. by substantiating his version that there was wrong diagnosis and the treatment given by the O.Ps. and the procedure followed by the doctors was wrong and that there was any nexus between the treatment carried out by the doctors and the death of the patient. Resultantly, the complaint was dismissed.

8. Feeling aggrieved against the impugned order of the District Forum, the complainant has filed this appeal. Notice of appeal was served on the respondents. Respondent No. 1 put in appearance through Mr. H.S. Awasthi, Advocate whereas respondent No. 2 despite service did not put in appearance. Respondent No. 3 was ex parte before the District Forum and also he did not put in appearance before the Commission despite notice sent to him.

9. We have heard Mr. Attar Singh Gulia, learned Counsel for the appellant and Mr. H.S. Awasthi, Advocate appearing for respondent No. 1-PGI and have carefully perused the impugned order and the record of the case.

10. There is a factual controversy regarding the date when Shri Rakesh Kumar was brought to PGI. According to the averments made in the complaint, the complainant had taken his son to Sector 22 Hospital, Chandigarh for treatment of Rabies in the night of 9.7.1998 and on that very day, he brought his son to the emergency wing of PGI, Chandigarh at 10.30 p.m. where Dr. Rajan Uppal and Dr. Bharat Kumar Gupta attended the patient.

11. On the other hand, the case of the respondents is that the patient Shri Rakesh Kumar was brought to PGI emergency wing on 8.7.1998 where he was attended by the team of doctors on duty at a particular time and carried out all possible investigation and treatment. Reference was made to Outpatient Record (Annexure C-1) to show that the deceased was brought to PGI on 8.7.1998 and not on 9.7.1998. Annexure R-1 is the photocopy of the Outpatient Record. It shows the name of Shri Rakesh Kumar having been written after scoring the other name already mentioned. The date mentioned was also scored of and other date was mentioned as 8.7.1998. The Central Registration Number, however, remained 181230. The column of “AGE” was also overwriting and 16 years was mentioned therein. The column of “sex” was, however, remained the same i.e., (M) Male. In column “WIFE/SON/DAUGHTER OF” the words “Luxmi Narayan” were scored of. In the Column of “ADDRESS” also mentioned something, which was scored of. The history and physical examination was noted by Dr. Bala and then complaint of afraid of water and other facts noticed on physical examination were mentioned.

12. The learned Counsel for the appellant laid great stress on the cuttings of the names, address, etc. and said that it made the document (Annexure R-1) rather suspicious and not a genuine document. The complainant referred to Autopsy Report (Annexure C-3), which mentions the date of admission as 9.7.1998 and the date of death as 11.7.1998. Annexure C-5 is a document issued by PGI, Chandigarh showing the name of the patient as Shri Rakesh Kumar, aged 13 years, male with C.R. No. 181230 showing the date of admission as 9.7.1998 and date of death as 11.7.1998. The final Autopsy diagnosis is mentioned as ‘Pulmonary edema. The ‘Remarks made by the Resident Dr. Sanjay Jogi and Consultant Prof. A.K. Banarjee, at the end of the ‘Final Autopsy diagnosis No. 1 to 6 is as under:

“Possibility of Rabies ruled out.” (Underlined by us)

13. The photocopy of a document issued by PGI, which has been enclosed with the affidavit of the complainant shows the date of admission as 9.7.1998 and the date of discharge as 11.7.1998. The patient was described as poor and treatment recommended was free. The doctor who filled the Outpatient Card and whose name appears from the document as Dr. Bala has not been cross-examined inasmuch as Dr. Bala has not filed any affidavit regarding the patient being seen and examined on 8.7.1998. Th name of Dr. Bala was also not disclosed in the affidavit of Dr. Bharat Kumar Gupta who has deposed in para 3, inter alia, that “........the deceased patient came to P.G.I. on 8.7.1998 in the evening in Emergency O.P.D., wherein, he was immediately attended by a team of doctors....”. This paragraph has been verified to be true and correct according to knowledge of Dr. Bharat Kumar Gupta though Dr. Bharat Kumar Gupta had not deposed that he himself was present in the emergency wing and in his absence on 8.7.1998, the patient was seen and examined.

14. The affidavit of Dr. Rajan Uppal is of not much significance inasmuch as he has deposed only one paragraph, which reads as under:

“1. That the deponent has gone through the accompanying affidavit of Dr. Bharat Kumar Gupta and state that the facts stated in para Nos. 1 to 8 thereof are true and correct to the knowledge of the deponent. The deponent adopts the affidavit filed by Dr. Bharat Kumar Gupta and state that the said affidavit be read as affidavit filed by the deponent.”

15. Such kind of an affidavit cannot be legally admissible in evidence as the evidence of Dr. Rajan Uppal in this case. If Dr. Rajan Uppal wanted to file his own affidavit regarding the treatment of the patient by him in this case, then he was required to file his affidavit stated therein clearly and specifically the part played by him in the treatment of the patient. The deposition of Dr. Rajan Uppal that the facts mentioned in the affidavit of Dr. Bharat Kumar Gupta are true and correct to his knowledge and that affidavit is adopted by him, is not a legal and proper course to give evidence by filing an affidavit.

16. The case of the respondent that the patient had come to PGI on 8.7.1998 and was examined by a team of doctors thus has not been substantiated and the document relied on by the O.Ps. is in itself a suspicious document, which is not credit worthy. We find no valid reasons to hold that the complainant would unnecessarily tell a wrong date regarding the patient being brought for treatment to PGI. We are thus of the view that the case of the complainant be accepted that he took his son to PGI on 9.7.1998 and not on 8.7.1998 and on 9.7.1998 in the night in the emergency wing, he was examined by Dr. Bharat Kumar Gupta and Dr. Rajan Uppal.

17. In para 4 of the affidavit, Dr. Bharat Kumar Gupta admitted that he along with Dr. Rajan Uppal examined and viewed the patient on the night of 9.7.1998 and clinically observed the classical symptoms of Rabies i.e., fever, hydrophobia, aero-phobia coupled with the history of dog bite and suspected it to be a case of brain inflammation suggestive of Rabies. It was further deposed that to confirm the diagnosis of Rabies, further tests “corneal smear” and “skin biopsy” were done in the morning on 10.7.1998 to detect ‘Antigens of Rabies virus. Meanwhile, the patient was put on supportive treatment by him and Dr. Uppal as there was no specific treatment of Rabies. It was also deposed that natural course of Rabies is universal fatal. Utmost care was taken in treating the deceased who had past history of dog bite for which he had not taken anti Rabies injections, hence there was brain inflammation. It was deposed further that unfortunately, the patient expired on the intervening night of 10/11th July, 1998 before the above tests reports were received to reach at definite conclusion.

18. In para 5, Dr. Bharat Kumar Gupta deposed that it was very strange that the complainant took the patient/boy to Sector 22, Government Hospital, Chandigarh on 9.7.1998 in the night, while the patient was already admitted with P.G.I. on 8.7.1998. Moreover, the alleged Sector 22, Government Hospital Chandigarh does not specialize in treating the patient suffering from Rabies and the official timings of the said Government Hospital is till 2.00 p.m.

19. In our considered opinion, this controversy is being unnecessarily raised as the evidence and the record of the PGI itself shows that the patient Sh. Rakesh Kumar was shown as admitted there on 9.7.1998 and not on 8.7.1998. Dr. Bharat Kumar Gupta admitted that he along with Dr. Uppal examined the patient on 9.7.1998 and they did not have personal knowledge about the patient having been admitted on 9.7.1998 or a day prior i.e., 8.7.1998. We have already mentioned above that the complaint would for no valid reasons tell lies about his son being taken to PGI on 9.7.1998, if he had in fact been admitted there on 8.7.1998. If it was a fact that Sh. Rakesh Kumar was admitted in PGI on 8.7.1998, then he could not have been taken by the complainant without the permission of the attending staff outside the premises of the PGI to any other hospital or any other place and to be brought back on 9.7.1998.

20. It may be mentioned that before a proper diagnosis could be made and a proper treatment provided to the patient, the O.Ps. relied more on the history of a dog bite and proceeded on presumption that no treatment for the alleged dog bite in the past was taken and which resulted in the inflammation of brain. This line of defence is clearly contrary to the eventual finding by the team of doctors who conducted the Autopsy (Copy of Autopsy Report Annexure C-3) on the dead body of Shri Rakesh Kumar where a conclusion note appears “Possibility of Rabies ruled out”.

21. In this view of the matter, it cannot be said that the O.Ps. adopted a standard line of treatment of the patient Shri Rakesh Kumar who at one stage diagnosed to be a case of Rabies and he was also diagnosed to be a case of suffering from tuberculosis and while the further tests were being conducted for confirming Rabies suspected to be suffered by the patient, his condition deteriorated and he died. The question is whether the O.Ps. working in PGI, which is a premier medical institute in this part of the country, proceeded to treat the patient with the expertise, which they have and they adopted a standard line of treatment though the patient could not be survived. If the respondents had succeeded in showing that this was the standard line of treatment, which they adopted and despite their best efforts, the patient could not survive, it could be said that they were not negligent medically or deficient in services hired and availed by the complainant. The facts of the case, however, show a different story. We do not think it appropriate to repeat the events that happened at PGI as we have already narrated them earlier.

22. The complainant, in our considered opinion, gave adequate evidence to show that his son Shri Rakesh Kumar (since deceased) was not properly treated at PGI i.e., respondent No. 1 and as a matter of fact, there were considerable differences in the diagnosis and the line of treatment for the same, which according to the Autopsy Report was ruled out; this clearly shows to be a case of medical negligence on the part of respondents who were deficient in rendering services hired and availed. The District Forum was wrong in rejecting the complaint.

23. Resultantly, the appeal has considerable merit and is allowed. The impugned order is set aside and the complaint is allowed. In our considered opinion, a sum of Rs. 2,00,000/- (Rupees two lacs) would be just, proper and adequate to compensate the complainant. The O.Ps. are directed to pay to the complainant a sum of Rs. 2 lacs as compensation and a sum of Rs. 2,000/- as costs of litigation within two months from the date of receipt of certified copy of the order.

Copies of this order be sent to the parties free of charge.