Brief Facts : 1. That on 20.05.2007, Sh. Om Prakash, the father of complainant - Respondent no.1 was brought to the hospital of the petitioners at 12 PM with abdominal pain. The patient was not attended till 2-00 P.M. After 2-00 P.M., Respondent No.2 prescribed medicines and the condition of the patient deteriorated around 5-10 P.M. and Dr. Ajay Singh Pundeer, Petitioner No.1 was called at 5-45 P.M. but ultimately the patient collapsed and expired at 6-00 P.M. due to cardiac arrest. 2, The complainant - therefore filed complaint before the District Forum alleging that the father of the complainant died on 20.05.2007 due to willful and intentional negligence of the OPs. The complainant alleged that the father of the complainant was not attended by the OPs nor he was given any treatment for two hours. Thereafter, Respondent No.2 attended the patient and given some medicines but there was no response. 3. It is alleged that the Respondent No.2 introduces himself as MBBS but in fact he does not hold any degree of MBBS and he is BAMS and is not even registered with the competent authority. Respondent No.2 was not even entitled to prescribe treatment as per the complications arisen in E.C.G. taken at 2-00 P.M. Respondent No. 2 called another doctor at 5-45 P.M. The condition of the patient deteriorated and the other doctor OP-1 was called and ultimately the father of complainant died at 6-00 P.M. 4. The complainants filed complaint before the District Forum alleging that his father had not been given proper treatment by the OPs. Dr. Pundeer, who himself was not specialist and the OP-2 called Dr. Pundeer when the condition of father of complainant deteriorated. No proper treatment throughout the day was given to the father of complainant by the OPs and the OPs neither sent the patient to ICU nor called any competent or specialist doctor for treatment. OP-2 was doctor of Ayurveda but was prescribing medicine of Allopathy, which clearly violated the guidelines and directions/orders passed by the Hon’ble Supreme Court of India. 5. On enquiry by the Police, it was revealed that the OPs were not the branch of renowned Metro Plus Hospital which has specialization in heart diseases. 6. The District Forum allowed the complainant and directed the OPs to pay Rs.5,00,000/- to the complainants within 30 days of the complainant submitting affidavit giving names and particulars all the LRs on record and copy to the OPs. 7 Aggrieved by the said Order dated 30.03.2009 of District Forum, Petitioners appealed in State Commission and the State Commission vide order dated 20.12.2017 in FA No.328 of 2009 has dismissed the Appeal filed by OP-3 and by the same order the State Commission also dismissed the Appeal FA/273/2009 filed by the Complainant for enhancement of compensation. 6. The Petitioners filed the Revision on following grounds : (i) That the State Commission has attached an undue and unwarranted important to the complainant’s version and evidence led by the complainant and thereby holding petitioners’ negligence on vague pretext. The State Commission failed to appreciate that the objections filed by the petitioners that the Delhi Medical Council did not take into account that the medicine such as GTN Spray, injection Voveran, Injection Acilok, Tablet Nimecet P, Tablet Oflox TZ, Tablet Pantocid D and Gel Acifix were meant for the patient who had not disclosed whether he was suffering from any heart ailment earlier and as such the patient had his attendants complained that he has only having acidity and that is why the patient feeling uneasy. ii) But the doctor attending the patient got ECG done and when it was revealed that the ECG was having complications he was advised for admission which the attendants refused as they alleged that the patient was suffering from gastric problem and as per standard protocol the above said medicines were prescribed and the Delhi Medical Council did not apply its mind when they passed the impugned order because GTN spray in its full form Glyceryl trinitrate and it is given only for angina pain and it is a spray which is taken to ease angina pain when it happens. Some people take a tablet or spray and as such it is one of the fast and effective medicine for relief from angina pain. It works in two ways. It relaxes blood vessels in the body to widen and this reduces the strain on the heart and making it easier for the heart to pump blood. It relaxes and widens coronary arteries which increase the flow of blood to the heart muscles. iii) The factum of medical negligence could not be proved by an expert before the State Commission as well as before the District Forum as both the Fora below did not referred the matter to the medical board. iv) The Appellants also relied upon several judgments of hon'ble Apex Court in their support Held : 1. The Commission held that it is admitted by the Petitioner that both Dr. Vinay and Dr. Pundeer (Opposite Party No. 2 & 3 before the District Forum) were the Doctors on the rolls of Metro Plus Hospital (OP-1 before District Forum) on the date the patient was admitted / died in the Hospital i.e., 20.05.2007. 2. It is also admitted that Dr. Vinay is an Ayurvedic Doctor while Dr. Pundeer is an Allopathic Doctor. It was further stated that Dr. Vinay was the Duty Doctor who attended the patient on this date in consultation with Dr. Pundeer. Later on, Dr. Pundeer also attended the patient. In this case District Forum has held all the OPs liable and Order to pay the compensation is against all the OPs. Dr. Vinay has neither filed any appeal before State Commission nor revision before the National Commission. It is admitted by the Petitioner that the prescription dated 20.05.2007 was made by Dr. Vinay (the hand written portion prescribing medicine and regarding case history/ symptom etc.) and this prescription is signed by Dr. Pundeer. 3. The name of Dr. Vinay does not appear in the typed list of various Doctors on the left hand penal of the prescription. To this the Counsel states that he being a Duty Doctor, normally the names of Duty Doctors are not mentioned on the prescription. The Petitioner claims that the Metro Plus Hospital is registered/ approved with the competent authority however, he is not in a position to confirm whether their Hospital is authorized to do treatment of both the stream of medicine i.e., Ayurvedic and Allopathic. 4. The Respondent produced the copy of order dated 10.06.2011 of the Delhi Medical Council (DMC) in which the complaint of the Respondent alleging medical negligence of the part of Dr. Vinay, Dr. Pundeer and Metro Plus Hospital was taken up. It is observed in this report that neither Dr. Pundeer, Director of Metro Plus Hospital filed his written statement nor provided the details of the Dr. Vinay who was employed at Metro Plus Hospital in spite of directions from DMC. DMC Order further observes that as per the information received from Directorate of Health Services (DHS) vide letter dated 16.02.2010, Metro Plus Hospital was not registered with Directorate of Health Services and accordingly, DHS was asked to take stringent actions against Dr. Pundeer for running Metro Plus Hospital in violation of Delhi Nursing Home Registration Act. DMC Order further observes that the patient was admitted and administered treatment by Dr. Vinay who is holder of BAMS qualifications from Maharishi Dayanand University. 5. For practicing system of Allopathy in NCT of Delhi a person should hold recognized medical qualifications, as per First, Second and Third Schedule of Indian Medical Council Act of 1956, and should be registered with DMC. Qualification of BAMS is not a recognized qualification as per aforementioned Schedules to Indian Medical Council Act, 1956 hence, Dr. Vinay being holder of BAMS, is neither qualified nor authorized to practice Allopathic system of medicine. Order further observes that as per records the patient late patient Shri Om Prakash was admitted in the Metro Plus Hospital under the care of Dr. Pundeer, however, in spite of this, Dr. Pundeer neither examined nor advised any treatment to the patient and instead allowed him to be left in the management of Dr. Vinay, who was neither qualified nor competent to treat his patient. Now, it is observed that due to lack of proper care and treatment, the patient died. 6. Accordingly, the DMC came to the conclusion that Dr. Vinay, a person unqualified in the field of modern scientific system of medicine (Allopathy) acted recklessly by administering treatment, which was beyond his knowledge, skill and competence, with scant regard to life and safety of the patient and that the actions on the part of Dr. Vinay constitute an act of criminal negligence, for which he is liable to prosecuted under the Provision of Indian Penal Code in addition to Section 27 of Delhi Medical Council Act 1997. DMC also held Dr. Pundeer guilty of professional misconduct for violation of provision of Regulation 1.9 and 1.6 of IMC (professional Conduct, etiquette and ethics) Regulation 2002 and also guilty of Medical Negligence. The Order further states that Order directing removal of name from the State Medical Register of Dr. Pundeer shall come into force after 30 days from the date of Order. 7. The Counsel for Petitioner herein states that they have not challenged the said Order dated 10.06.2011 before any higher Forum / or any Court. However, this Order was challenged by Dr. Vinay by way of appeal before the Medical Council of India. Respondents have produced a copy of communication dated 19.10.2011 of the Medical Council of India (MCI) addressed to Dr. Vinay, vide which decision of the ethics committee concurring with the observations of the DMC in the said Order dated 10.06.2011 have been conveyed to Dr. Vinay. 8. The commission rejected the Resolution tried to be relied upon by the petitioner pf Central Council of Indian Medicine as the said Resolution was found to be unsigned and its contents being in violation of provisions of Indian Medical Council Act/Delhi Medical Council Act, its authenticity was in doubt. 9. The Commission also held that it is not the case of Petitioner that Dr. Vinay was qualified to simultaneously practice both Allopathy and Ayurvedic System of Medicine and was holder of any valid registration certificate entitling him to simultaneously practice both systems of medicines. Hon’ble Supreme Court in Poonam Verma Vs. Ashwin Patel & Ors. (AIR 1996 SC 2111) held that “A person who does not have knowledge of a particular system of medicine but practices in that system is a Quack and a mere pretender to medical knowledge or skill or to put it differently a charlatan.” 8. Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1 has held that “degree of negligence in criminal negligence and negligence in civil law are jurisprudentially different – to fasten liability in criminal law, degree of negligence has to be higher than negligence enough to fasten liability for damages in civil law. Negligence which is neither gross nor of higher degree may provide a ground for action in civil law. Hence, it is clear that for negligence under civil law, negligence need not be gross or of a higher level, which are essential to fasten liability in criminal law. Hon’ble Court in the Jacob Mathew Case (supra) further stated that there is a marked difference as to the effect of evidence viz. proof. In civil proceedings, a mere preponderance of probability is sufficient, and defendant is not necessarily entitled to the benefit of every reasonable doubt. At the same time, in a claim of medical negligence, it is enough for the defendant to show that the standard of care and skill attained was that of an ordinary competent medical practitioner exercising an ordinary degree of professional and that test for medical negligence laid down in Bolam case was applicable in India. Hon’ble Court also observed that the essential components of negligence, as recognized, are three “duty”, “breach” and “resulting damage” that is to say 9. The Commission further held that in this case, both the Fora below have given concurrent findings of medical negligence on the part of Petitioner 1 & 2 and Respondent-2 herein. DMC has also concluded that Dr. Vinay has acted recklessly and his actions constitute an act of criminal negligence. DMC also found Dr. Pundeer guilty of professional misconduct and medical negligence. DMC also concluded that Petitioner-2 Hospital was running in violation of Delhi Nursing Home Regulation Act. This is a very important judgment from the point of view of the Doctors as well as from the patients. The patients are generally not aware about the qualifications of the Doctors and they may get carried away by the Facade and not every one who is aggrieved approaches the Court. Reason is simple -time & costs involved. This case is of 2007 and decided finally on 2023 ! The Small hospital owners should be more cautious while empanelling the Doctors and also to check the respective State Acts. thanks and regards Adv. ROHiT ERANDE ©
|
Comments
Post a Comment