Case study – “Consumer Court is a summary
court, if a consumer dispute involving complicated allegations of medical negligence requires
scrutiny of elaborate documentary evidence and/or recording of
oral testimony of numerous witnesses the fora may refuse
adjudication under summary jurisdiction and relegate to the civil court of competent jurisdiction”
Case Study By: Mohit Popli, Advocate
NCDRC : CC. 351 OF 2012
Compensation prayed: Rs. 6,30, 60,000/-
Ramesh Kumar
Vs. Dr Akhil Saxena, Saxena Multi
Speciality Hospital & Ors
Facts of the case:
The Complainant filed
the complaint against Dr. Akhil Saxena & Ors, the opposite parties,
alleging medical negligence during the treatment of his wife, Smt. Anita Khatri
(in short “Patient”) which resulted in untimely death. He has arrayed total 11
Opposite Parties, which consists of 7 doctors, 2 hospitals, and 2 blood banks.
Complainant further alleged that there was a breach of duty by the treating
doctors, the medical records are incomplete, inconsistent and show tampering of
the same. The patient suffered
complications due to blood transfusion, which was transfused on the date of
expiry, therefore, possibility of contamination cannot be ruled out. The
patient was suffering from borderline
Cardiomegaly and urinary infection,
even though she was operated for fibroid uterus. The Opposite Parties did not
give proper prophylaxis prior to surgery. No pre-operative tests were conducted.
The operation was not properly monitored and the general anesthesia was not
proper.
During
post-operative period, the patient suffered pulmonary embolism which the
Opposite Parties should have been anticipated. It requires intensive management
having advance cardio pulmonary facilities, which were not available with the
Saxena Hospital. The patient was not given ventilator supports which finally
lead to septicemia, multi organ failure, death of the patient, on 29.12.2010.
Thus, as per the Complainant, the doctors did not follow the standard of
medical practice; there was no proper referral and the complications
management. Opposite Parties did not conduct the Post mortem, even after
request.
Other Complaints
filed by the Complainant
a. On 05.07.2011, Haryana Medical Council dismissed the
complaint of the Complainant.
b. On 30.12.2011, Delhi Medical Council dismissed the complaint
of the Complainant. Appeal was filed before the Medical Council of India; it
was decided in favor of complainant on 19.06.2013. held that “The
treating doctors namely, Dr. Anupama Sethi & Dr. Akhil Saxena have been
found to be negligent in their care provided to late Mrs. Anita and the ethics
committee recommended for removal of their names from the Indian Medical
Register/concerned State medical Register, for a period of one month.
Hence,
complainant filed the complaint and prayed for a total compensation of
Rs.6,30,60,000/- under different heads as follows:
S. No.
|
Particulars
|
Amount (in Rs.)
|
1.
|
Cost incurred in medicines at Saxena Multi Speciality
Hospital; Sonipat
|
15,000/-
|
2.
|
Cost incurred in surgery at Saxena Multi
Speciality Hospital
|
30,000/-
|
3.
|
Cost paid towards ambulance
|
11,000/-
|
4.
|
Cost incurred at Sir Ganga Ram towards treatment
|
1,45,929/-
|
5.
|
Loss of income due to death of the patient
Rs.15,000/- per month income * 42 yrs.
(remaining estimated life) * 12 months
|
75,60,000/-
|
6.
|
Inflation for 42 years @ 10%
|
7,56,000/-
|
7.
|
Alternative arrangements made and difference in
the cost of Rs.5,000/- per month income * 42 years (remaining estimated life)
* 12 months
|
25,20,000/-
|
8.
|
Alternative arrangements made for household work
Rs.5,000/- per month * 42 years (remaining estimated life) * 12 months
|
25,20,000/-
|
9.
|
Cost of inflation for 42 years @ 10%
|
5,04,000/-
|
10.
|
Mental agony, distress, permanent loss of
companionship, breakdown of family life
|
1,00,00,000/-
|
11.
|
Mental agony, distress, torture caused to the
mother in law for loss of daughter in law
|
1,00,00,000/-
|
12.
|
Mental agony, emotional distress, torture caused
to her four children on loss of their mother
|
1,50,00,000/-
|
13.
|
Time loss and loss of professional prospects of
the husband as a result of this shocking development and the associated
hardships in seeking justice for his wife
|
99,000/-
|
14.
|
Time loss and loss of professional prospects of
his daughter as a result of this shocking development. She was at that time
preparing for medicals.
|
1,00,00,000/-
|
15.
|
Punitive deterrence, so as to ensure that a
strong message is sent to the medical fraternity, which is hoped to curtail
such eventualities.
|
38,00,000/-
|
16.
|
Cost of litigation till date
|
1,00,000/-
|
Total claim on the date of filing the complaint
|
Rs.6,30,60,000/-(Rupees Six Crores thirty lakhs, sixty thousand
only)
|
Findings by Hon’ble National Commission
On mere perusal of
the Prayer supra, Hon’ble Commission were of view that, Serial No. 1 to 4 and
16 are somewhat relevant. The remaining quantum of compensation appears to be
just hypothetical and illusionary. Hon’ble Commission do not see any
justification in such prayer. At most, the Complainant incurred expenditure of
around Rs.2-3 lakhs, but is seeking hefty compensation. It is the discretion of
courts to allow or disallow the compensation in such cases, if the Complainant
succeeds.
. No
doubt, the ethics committee of Medical Council of India recommended for removal
of names of Dr. Anupama Sethi and Dr. Akhil Saxena from the Indian Medical
Register or from the concerned State Medical Register for a period of one
month. In opinion, the MCI has not commented anything about the negligence in
the treatment of the wife of the Complainant. The Consumer Courts are not bound
accept the findings of MCI, in totality. In this case, to establish a claim of
medical negligence against Opposite Parties, this Commission needs voluminous
evidence from each of the Opposite Parties, also needs to examine several
medical literatures and expert evidence.
Hon’ble
Commission gave opportunity to the Complainant to amend the complaint with
proper justification, but still, the claim is a highly inflated one. The
Consumer Courts are not a Lottery Centre or game of Russian roulette. After considering the complainant’s case thoroughly by the
Hon’ble Commission they observed that the complainant he is claiming Rs.6,30,60,000/-,
as compensation. Hon’ble Commission relied upon various authorities of Hon’ble
Supreme Court. In a recent authority Pesi Dady Shroff Vs. Boehringer Ingetheim Denmark & Anr.,
Civil Appeal No.9453 of 2013, filed against this Commission’s
judgment and order passed in Consumer Complaint No.164,
dated 10.07.2013, the Hon’ble Supreme Court was pleased
to make the following observations :-
“Leaving
the question of law open, as to whether in such a fact situation, provisions of
Consumer Protection Act, 1986, are applicable, it is open to the appellant to
approach the Civil Court for the simple reason that for the purchase price of
Rs.4-5 lakhs in 2003, he has claimed a sum of Rs.73.35 crores. Such a claim can be adjudicated only after the
assessment of evidence, etc., before the Civil Court and, therefore, it is a
fit case where, even if the Consumer Protection Act, 1986, is applicable, the
appellant must approach the Civil Court for appropriate relief.
With these observations, the civil appeal is disposed of”.
In Synco Industries Vs. State Bank of Bikaner & Jaipur and
Others, (2002) 2 SCC 1, the Hon’ble Apex Court has held as under:-
“3. Given
the nature of the claim in the complaint and the prayer for damages in the sum
of rupees fifteen crores and for an additional sum of rupees sixty lakhs for
covering the cost of travelling and other expenses incurred by the appellant,
it is obvious that very detailed evidence would have to be led, both to prove
the claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an
appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to
the appellant liberty to move the civil court. This is an appropriate claim for a civil court
to decide and, obviously, was not filed before a civil court to start with
because, before the consumer forum, any figure in damages can be claimed
without having to pay the court fees. This, in that sense, is an abuse of the process
of the consumer forum”.
Also, the Commission
has decided recently a Consumer Complaint No 76 of 2014 on 16.05.2014, in Kumari Sangita Tukaramji Rokde vs. Union of India and Ors., the Complainant
prayed for compensation of Rupees Five Hundred Crore, wherein Hon’ble Mr.
Justice J. M. Malik has made following observations:
“For the meagre sum of about Rs.500/-, she is claiming Rs.5.00
crores, as compensation. This
Commission, under the Consumer Protection Act, 1986, is a summary court. The examination of witnesses and their
cross-examination is not permissible as such. She has lodged report with
the CBI. The offence of bribe is yet to be proved. This Commission under the
Consumer Protection Act, 1986, does not deal with the cases of bribery and
fraud. These entail a lot of evidence and proper investigation. The offence
must stand proved in accordance with law. Although, the pleadings are quite impressive,
yet, the facts are yet to be discussed down the ground. The consumer fora
cannot arrogate to itself the powers of a CBI Court or a Court under the
provisions of Prevention of Corruption Act, 1988. It is too early to give our
piece at this stage in absence of solid and unflappable evidence. All these
allegations cannot be proved through mere affidavits or interrogatories. It is pertinent to know that cross examination
of the witnesses is the life/blood of our legal system. It is the only way, a
Judge can decide whom to trust and an answer, during cross-examination, may
wreck one’s case. It is painfully apparent that it is impossible to gauge the
real issue. This Commission is unable to winnow truth from falsehood. This
Commission can go into the subject, only skin deep. It cannot be said at this
stage, at which way the wind will blow.”
The
Hon’ble Commission dismissed the complaint and grant liberty to the Complainant to approach Civil Court or proper
Forum, where the pecuniary jurisdiction lies.
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