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Sanjay (Member)     31 December 2009

medical negligence,morality &consumer law

 Please read the following judgement of Distt. Consumer Forum, Ferozepur and post your comments.

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,     FEROZEPUR.

 

QUORUM

 

                             President              :         Shri Sanjay Garg

                                                                                                                                                                                                                                                                                                                                                                                                                                                     

                             Member                :         S. Tarlok Singh

 

                                                                   C.C. No.26 of 2008

 

                                                                   Date of Institution: 15.1.2008

 

                                                                   Date of Decision: 30.9.2009

 

Sarabjit Kaur wife of Nishan Singh son of Balkar Singh, resident of Village Kamre Wala, Backside P.S. Sadar Jalalabad, Tehsil Jalalabad, District Ferozepur.

 

........ Complainant

Versus

1.       Dayanand Medical College & Hospital, Ludhiana, through Managing Society, Civil Lines, Tagore Nagar, Ludhiana.

 

2.       Amar Hospital, Near Railway Brigade, Ferozepur, through Dr. K.S. Dhillon, Authorized Signatory.

 

3.       United India Insurance Company Limited, Savitri Complex No.1, First Floor, G.T. Road, Ludhiana, Punjab (Insurance Company of Dayanand Medical College and Hospital).

 

4.       Oriental Insurance Company, Ferozepur, through its Divisional Manager. (Insurance Company of Amar Hospital).

 

5.       Dr. Harpal Singh, Orthopeadician, Dayanand Medical College and

Hospital, Ludhiana.

 

6.       United India Insurance Company Limited, Division Office No.1, 455-

The Mall, Ludhiana, through its authorized signatory (Insurance Company of Dr. Harpal Singh).

 

7.       M/s Zimer India Private Limited, Plot B & B-1, Vanijya Nikunj, 7th

Floor, En Kay Tower, Udyog Vihar, Phase-V, Gurgaon, through its authorized signatory.

      

                                                              ........ Opposite parties

 

C.C. No.26 of 2008                 \\2//

                                                                    C.C. No.27 of 2008

 

                                                                   Date of Institution: 15.1.2008                                                                                                                                                                                                                                                                                   

 

                                                                   Date of Decision: 30.9.2009

 

Nishan Singh son of Balkar Singh, resident of Village Kamre Wala, Backside P.S. Sadar Jalalabad, Tehsil Jalalabad, District Ferozepur.

 

........ Complainant

Versus

1.       Dayanand Medical College & Hospital, Ludhiana, through Managing Society, Civil Lines, Tagore Nagar, Ludhiana.

 

2.       Amar Hospital, Near Railway Brigade, Ferozepur, through Dr. K.S. Dhillon, Authorized Signatory.

 

3.       United India Insurance Company Limited, Savitri Complex No.1, First Floor, G.T. Road, Ludhiana, Punjab (Insurance Company of Dayanand Medical College and Hospital).

 

4.       Oriental Insurance Company, Ferozepur, through its Divisional Manager. (Insurance Company of Amar Hospital).

 

5.       Dr. Harpal Singh, Orthopeadician, Dayanand Medical College and

Hospital, Ludhiana.

 

6.       United India Insurance Company Limited, Division Office No.1, 455-

The Mall, Ludhiana, through its authorized signatory (Insurance Company of Dr. Harpal Singh).

 

7.       M/s Synthes Media Pvt. Ltd. Plot No.118, Sector-44, Gurgaon,

through its authorized signatory.

                                                                        ........ Opposite parties

Complaint   under   Section   12  of

                                                          the Consumer Protection Act, 1986.

                                                                    *        *        *        *        *       

PRESENT :

For the complainants              :         Sh. Inderjit Singh, Advocate     

For opposite party No.1 & 5            :         Sh. S.S. Saini, Advocate

For opposite party No.2                   :         Sh. A.K. Gupta, Advocate

For opposite party No.3, 4  & 6       :         Sh. Ashwani Sharma, Advocate

For opposite party No.7                   :         Sh. Gaurav Dhawan, Advocate

C.C. No.26 of 2008                 \\3//

 

                                            ORDER

SANJAY GARG, PRESIDENT:-

                   With this common order, we will dispose off two complaints – one filed by Sarabjit Kaur and the other by her husband Nishan Singh son of Balkar Singh against Dayanand Medical College & Hospital, Ludhiana (herein after referred to as opposite party No.1), Amar Hospital (herein after referred to as opposite party No.2), United India Insurance Company Limited (Insurance Company of Dayanand Medical College and Hospital) (herein after referred to as opposite party No.3), Oriental Insurance Company, Ferozepur (Insurance Company of Amar Hospital), (herein after referred to as opposite party No.4), Dr. Harpal Singh (herein after referred to as opposite party No.5), United India Insurance Company Limited (Insurance Company of Dr. Harpal Singh) (herein after referred to as opposite party No.6) and M/s Zimer India Private Limited (herein after referred to as opposite party No.7). The facts of both the complaints are almost similar to each other.

2.                The brief facts of the case are that complainants Nishan Singh and Sarabjit Kaur alongwith other family members were travelling by car, which met with an accident on 16.2.2006. In the said accident, father of complainant Nishan Singh had died. Both the complainants i.e. Nishan Singh and Sarabjit Kaur, who are husband and wife, got severe injuries. Bone of right thighs of both the complainants were broken. However, in case of complainant Nishan Singh, the bone of right Bycep was also broken. Firstly the complainants were admitted in Amar Hospital, Ferozepur, who

C.C. No.26 of 2008                 \\4//

 

further referred the complainants to Dayanand Medical College & Hospital, Ludhiana, which is super specialty hospital. Dr. Harpal Singh Selhi, opposite party No.5 treated both the patents/complainants and a surgery was advised. Metal Rods were inserted in the right thigh and Bycep of complainant Nishan Singh and in the right thigh of complainant Sarabjit Kaur. Complainant Nishan Singh bore more than Rs.3,10,921/- on the treatment, whereas, complainant Sarabjit Kaur bore more than Rs.1,00,000/- on the treatment of her right thigh. The complainants followed the advice of dr. Harpal Singh and also visited him for follow up treatment. Complainant Nishan Singh felt a severe pain in his right thigh on 10.9.2006 and he immediately visited KGM Bone Hospital of Dr. Kulwant Singh, where complainant Nishan Singh was informed that metal rod inserted in his right thigh has been broken. Similarly, complainant Sarabjit Kaur also felt severe pain in her right thigh on 1.7.2007 and she visited Malwa Ortho Hospital of Dr. Arun Jain at Muktsar, where she was informed that the metal rod inserted in her right thigh has been broken. The complainants have alleged that there is negligence and carelessness in the treatment given to them, as the metal rods inserted in their right thighs have been broken. Complainant Nishan Singh finding no other alternative except to get re-operated himself, approached Amandeep Hospital at Amritsar and a new metal rod was inserted in his right thigh by replacing the previous rod and the complainant Nishan Singh spent more than Rs.87,039/- on his treatment from Amandeep Hospital, Amritsar. At Amandeep Hospital, a 14 mm rod was inserted replacing the 11 mm rod, which was inserted by Dr. Harpal Singh at

C.C. No.26 of 2008                 \\5//

 

 

Dayanand Medical College & Hospital, Ludhiana. It has been further averred that at Dayanand Medical College & Hosptal, the price of 11 mm rod was charged Rs.22,500/-, whereas at Amandeep Hospital, only Rs.14,218/- were charged for 14 mm rod. It has been further pleaded that complainant Nishan Singh is also having problem in his right Bycep and he has also been told by the other doctor that the metal rod inserted in his Bycep also needs replacement. However, complainant Sarabjit Kaur cannot get herself re-operated because of insufficiency of funds with the couple. Pleading medical negligence on the part of the opposite parties, complainant Sarabjit Kaur has claimed a compensatuion of Rs.4,90,000/-, including the expenses incurred by him on her treatment. Rs.10,000/- have also been claimed as litigation expenses. Complainant Nishan Singh has claimed Rs.15,00,000/- as compensation and Rs.10,000/- as litigation expenses.

3.                Notices of both the complaints were issued to the opposite parties. Opposite parties appeared and filed almost similar replies to both the complaints. In its written reply, opposite party No.1 has took certain preliminary objections as to territorial jurisdiction of this Forum and further for non-joinder of manufacturer of rods etc. On merits, the treatment of the complainants by Dr. Harpal Singh, opposite party No.5 has been admitted and it has also been admitted that the metal rods were inserted as the immediate internal fixation of open fractures of the femur and the humerus is usually necessary even as per medical literature. However, it has been further pleaded that as per OPD card produced by the complainant, the

C.C. No.26 of 2008                 \\6//

 

complainant had visited Dr. Harpal Singh, opposite party No.5 on 12 October, 2006 and it was observed that there was callus formation in the right thigh and arm. On 12.10.2006, there wasn’t any complaint regarding the non-union or breaking of nail etc. It has been pleaded that there are certain reasons for the nail breakage and one of these is that the patient did not take proper care and the breakage may occur due to non-union of femoral or due to some injudicious act on the part of the patient. Citing medical literature, it has been further pleaded that breakage may occur early in small diameter non-reamed nail that use small screws and late in larger reamed nails when the patient has continued to bear weight in the face of a non-union. It has been further pleaded that as per discharge summary of Amandeep Hospital, there is a history of fall recorded in it, which means that the nail of the complainant had broken due to any future accident. Rest of the allegations levelled in the complaint have been denied.                          

4.                Opposite party No.2 Amar Hospital, through Dr.K.N.S. Dhillon, has pleaded that they have given only first aid to the complainants, as the condition of the complainants was serious.  So they were required to be referred to a Tertiary Care Centre such as the Dayanand Medical College & Hospital and as the complainants were required to be referred to Neuro Surgeon and Orthopedic specialist, so they were referred accordingly. Rest of the averments of the complaint have been denied and any negligence and carelessness on the part of opposite party No.2 has been denied.

5.                Opposite party No.3 and 6 i.e. United India Insurance Company Limited, who is insurance company of opposite party No.1, filed separate

C.C. No.26 of 2008                 \\7//

 

written reply and has denied the allegations written in the complaint. However, it has been pleaded that in case any liability on the part of opposite party No.1, the insurance company is liable to the extent of 25% of limit of indemnity subject to minimum Rs.1000/- and maximum of Rs.1,00,000/- in respect of one patient subject to maximum total liability of Rs.10,00,000/- per annum. It has been further pleaded that the policy in respect of opposite party No.5 Dr. Harpal Singh Selhi is also limited liability policy and the insurance company is not liable for any excessive amount claimed by the complainant.               

6.                Opposite party No.4, who is the insurance company of Amar Hospital, has denied their liability of any claim.

7.                Opposite party No.5 i.e. Dr. Harpal Singh has made almost similar reply as given by opposite party No.1.

8.                Opposite party No.7, who is manufacturer of the metal rods/nails, which were inserted in the thighs of the complainants, has pleaded that as per allegation of the complaint, the loss, if any, has occurred to the complainants due to untrained doctors. The carelessness, if any, is on the part of the doctor, whereas rod made by the opposite party is of superior quality and there is no fault on the part of opposite party No.7.

9.                Parties led evidence.

10.              We have heard the learned counsel for the parties and have also gone through the file.

11.              During the course of arguments, the complainant also moved an application for cross-examining of Dr. Harpal Singh and Prof. Dr.

C.C. No.26 of 2008                 \\8//

 

Mohammad Yamin, who have produced their affidavits in support of pleadings of opposite party No.1 and 5. Dr. Harpal Singh was personally present before this Forum and he was cross-examined on the same date. However, the opposite parties showed their inability to produce Prof. Dr. Mohammad Yamin for cross-examination stating that Prof. Dr. Mohammad Yamin being a super specialist doctor, lots of patients would have to suffer because of his absence in the hospital. The complainant was asked to put the interrogatories to Prof. Dr. Mohammad Yamin, which was also replied by Prof. Dr. Mohammad Yamin in the shape of affidavit.

12.              Learned counsel for the complainant and learned counsel for opposite party No.1 and 5 relied upon lot of medical literature to prove their respective points. We have considered all the aspects of the case. Our findings in respect of the matter are as under:-    

13.              So far the objection as to territorial jurisdiction of this Forum is

concerned, the metal rods/nails inserted in the thighs of the complainant have admittedly been broken at Jalalabad, which falls in the territorial jurisdiction of this Forum. The cause of action to the complainants has accrued, when the said metal rods in their thighs got broken, which invited legal proceedings against the opposite parties. As per Section 11 (2) (c) of the Consumer Protection Act, a complaint can be instituted in a District Forum within whose jurisdiction the cause of action wholly or in part arises:-

                             “11 (2) A complaint shall be instituted in a District

                             Forum within the local limits of whose jurisdiction –

C.C. No.26 of 2008                 \\9//

 

                             (a)     x        x        x        x        x        x        x

 

                             (b)     x        x        x        x        x        x        x       

 

                             (c)      the cause of action, wholly or in part, arises.”

 

As the rods in the thighs of the complainants have broken in the local jurisdiction of this Forum and as such a part of cause of action has arisen within the territorial limits of jurisdiction of this Forum. Reliance can also be placed on an authority of the Hon’ble State Commission, Punjab passed in Revision Petition No.59 of 2004, decided on 18.11.2004 styled as “Sofat Infertility & Women Care Centre and others Versus Des Raj and others” vide which the Hon’ble State Commission, Punjab, while dealing a similar point regarding territorial jurisdiction regarding unfair trade practice and medical negligence on the part of Sofat Infertility and Women Care Centre, Ludhiana, held that the fact of unfair trade practice and medical negligence on the part of the opposite parties had come to the knowledge of the complainant at Sangrur, when she got her test conducted from Goel Diagnostic Laboratory at Sangrur and it was held that District Forum at Sangrur has got the territorial jurisdiction to entertain the complaint as the part of cause of action has arisen at Sangrur on the basis of which the complainant has alleged unfair trade practice and negligence on the part of the opposite parties. In view of the facts and above said law, we hold that this Forum has jurisdiction to entertain and decide the present complaint.

14.              So far the objection of non-impleading of the manufacturer of the metal rods is concerned, the complainant was allowed to implead the manufacturer of the rods vide order dated 17.2.2009 and he was impleaded

C.C. No.26 of 2008                 \\10//

 

as opposite party No.7 in the present complaint and hence this objection has automatically become redundant.

15.              On the onset one thing is clear that the nails/metal rods inserted in the thighs of both the complainants have broken down whatever may be the reason. The complainants have asserted that there was a defect in the treatment given to them at Dayanand Medical College & Hospital that is why the said nails/metal rods have been broken. On the other hand, opposite party No.1 i.e. Dayanand Medical College & Hospital and Dr. Harpal Singh asserted that there may be some injudicious act on the part of the complainants. The learned counsel for opposite party No.1 and 5 has vehemently argued that as per medical literature and as per expert opinion of Prof. Dr. Mohammad Yamin, Professor & Head of Department of Orthopaedics, Dayanand Medical College & Hospital, Ludhiana, application of similar force or more than the force, which was applied at the time of accident, could result into the breakage of nail and not otherwise. There is no evidence on the file that the complainants have suffered another accident of a similar force or more than the force of the previous accident. There is no evidence on the file regarding taking of treatment by complainants of any other injury at any other hospital after the treatment at Dayanand Medical College & Hospital or after the breakage of the said metal rod. A discharge summary of Amandeep Hospital relating to complainant Nishan Singh, copy of which has been placed on the file as Ex.C-170, does not show treatment of any other part except the re-nailing of the broken nail of complainant Nishan Singh. There is no evidence on the file that complainant Sarabjit

C.C. No.26 of 2008                 \\11//

Kaur has taken treatment of any other injury after the said implant at the Dayanand Medical College & Hospital, Ludhiana.

16.              In our view, the breakage of nail of both the husband and wife cannot be termed as co-incidental. The breakage of nail of any one of the complainants perhaps would have led to presumption that there would have been some accident or injudicious act on the part of that person, but breakage of nails of both the complainants gives a presumption that there may be some imperfection, short coming or defect either in the treatment or in the shape, size, diameter etc. of the nail, which shows some error of judgment on the part of treating doctor. A perusal of medical literature as well as affidavit of Dr. Harpal Singh and Prof. Dr. Mohammad Yamin further corroborate this fact. It has been specifically mentioned in the affidavits of Prof. Dr. Mohammad Yamin and Dr. Harpal Singh, which are almost verbatim copy of each other that the diameter of the nail as well as weight of the patient and non-union of the femoral are the major factors contributing nail breakage. The relevant portion of the affidavit of Prof. Dr. Mohammad Yamin, Head of the Department of Orthopedics, Dayanand Medical College & Hospital, Ludhiana is reproduced as under :-

“In Champman’s Orthopedic Surgery Third Edition,

Volume I, it has been observed as under, in Ex. R/8

on page 695 :-

                   “Breakage may occur early in small diameter non-

reamed nail that use small screws and late in larger

reamed nails when the patient has continued to bear

weight in the fact of a non-union.”

C.C. No.26 of 2008                 \\12//

 

Again in Rockwood and Green’s Fractures in Adults,

Sixth Edition, it has been observed as under, in Ex.R/9

on page 1904:-

                   “The main implant related complications of antegrade

and retrograde intramedullary nailing procedures are

broken implants. With advances in nail design and

an appreciation for the biomechanics of these implants,

fatigue failure of the implant occurs much less frequently.

Broken nails are indicative of femoral non-union. If a

fracture fails to heal, the nail will eventually fatigue and

break. The timing of nail failure is dependent on numerous

factors including the size of the implant, type of metal,

location of the non-union, fracture pattern, patient’s weight

and patient’s activity level. In a review of 60 broken nails

in 56 patients. Franklin  et al identified the commonly

observed sites of nail failure (262). The usual location

for fatigue failure of the nail is at the site of the non-

union, where the implant deformation is maximal with

motion.”

                   Thus, reasons for nail breakage are well known as is clear

from the above said literature.”

Learned counsel for the complainant, while relying upon the medical literature from book Rockwood and Green’s Fractures in Adults, vehemently stressed that infact complainant Nishan Singh is a heavy weight patient and

C.C. No.26 of 2008                 \\13//

 

 

nail of larger diameter was required to be inserted. However, nail of lesser diameter has been inserted resulting into breakage of the nail. While cross-examining Dr. Harpal Singh, a specific question was asked to Dr. Harpal Singh as to whether the thickness of the metal and the configuration of 11 to 15 mm kuntscher nail results in a structure capable of resisting considerable angular forces, to which Dr. Harpal Singh admitted to be correct. However, justifying the use of nail of 11 mm diameter in case of Nishan Singh, he said that the medical literature or the data to support 11 to 15 mm nail diameter is of European and American population where average height and weight is different from Indian set up. No document or medical literature to the effect that a small diameter nail is required in case of Indian population as compared to that of European or American population has been placed on the file by the opposite parties. In an answer to another question, Dr. Harpal Singh also admitted that complainant Nishan Singh looks to be overweight for his height.                         

17.              So the facts itself speak that the diameter of the nail is to be decided as per weight of the patient also taking into consideration other relevant factors. However, with the above said observation we are not going to observe any negligence on the part of Dr. Harpal Singh. We agree with the contention of opposite party No.1 and 5 that it is the treating doctor, who has to decide as to what treatment is required to be given to the patient for saving his life and as to what type instrument/nail and of what diameter should be inserted, is to be decided by the doctor at the time of treatment.

C.C. No.26 of 2008                 \\14//

 

 

The complainants were admitted in an emergency condition and the first and foremost duty on the part of the doctor was to save the life of the complainants and that duty has been performed by the doctors at Dayanand Medical College & Hospital, Ludhiana. However, there is another aspect of the case. The breakage of nail of both the complainants also cannot be overlooked.

18.              A specific question was asked to the counsel for opposite party No.1 and 5 as to whether they suspect any defect in the quality of material of the rod/nail to which he replied in negative.

19.              The medical negligence can be both inviting criminal action and civil action. In criminal medical negligence, the strict proof of negligence or carelessness on the part of the doctor is required. However, in a civil action, the negligence is not required to be proved so strictly as required in criminal cases, rather the same can be decided on the basis of preponderance of probabilities. However, so far the deficiency in service under the Consumer Protection Act is concerned, the medical negligence in strict terms is not required to be proved. We can say that even the case may not fall in the exact definition of negligence or the complainant may not be able to prove gross negligence or carelessness on the part of the treating doctor, but still if the complainant is able to prove any fault, imperfection, shortcoming or inadequacy in the quality and manner of treatment, then the same will fall in the definition of deficiency in service, as provided under the Consumer Protection Act.

C.C. No.26 of 2008                 \\15//

 

 

20.              In strict sense, there may not be any negligence inviting compensation or damages on the part of doctor at Dayanand Medical College & Hospital, Ludhiana, but still we may say that there is some deficiency in service, which has resulted into breakage of nails of both the complainants. Deficiency in service has been explained in the Consumer Protection Act as under :-                

                   “2.     Definitions – (1) In this Act, unless the context

                             otherwise requires –

(g)              “deficiency” means any fault, imperfection or

shortcoming or inadequacy in the quality, nature

and manner of performance which is required to

be maintained by or under any law for the time

being in force or has been undertaken to be

performed by a person in pursuance of a contract

or otherwise in relation to any service.”

From the perusal of definition of deficiency in service, it is not necessary that there should be a gross negligence on the part of service provider. It is also not necessary that a clear cut negligence or carelessness on the part of treating doctor is required to be proved. If the consumer proves some inadequacy or imperfection or shortcoming in the treatment by a doctor, especially when the doctor claims himself to be super specialist, then the case falls in the definition of deficiency in service, as provided under the Consumer Protection Act.  Any fault, imperfection, shortcoming or

C.C. No.26 of 2008                 \\16//

 

inadequacy in the quality, nature and manner of performing of service can be said to be a deficiency in service.The treatment of complainants at Dayanand Medical College & Hospital, Ludhiana may not come into definition of medical negligence, but still there is some shortcoming or inadequacy in treatment due to which the nails in the thighs of both the complainants have broken down.

21.              In this case, very small, but fine distinction can be made between medical negligence and deficiency in medical service. The distinction is fine, but real.

22.              It is the own case of opposite party No.1 and 5 that Dayanand Medical College & Hospital is super specialty hospital and opposite party No.5 Dr. Harpal Singh is a super specialist in the filed of orthopedics. It has also been earlier observed by the courts of law that a specialist owes a greater responsibility of duty towards his patients than the general practitioners as they are expected to hold greater knowledge, skill and training. An error of judgment can be excused and a reasonable degree of care and skill is expected but if the person professes to be a specialist in the filed, then a highest degree of skill is mooted.

23.              In the OPD slip of Dr. Harpal Singh, there was observation of callus formation and the patient was advised to walk with the help of walker, which means that complainant Nishan Singh was following the instructions of his doctor, but to his bad luck the nail planted in his thigh broke down.  24.            Opposite party No.5, who claims himself to be super specialist, could not disclose the exact reasons for the breakage of the nails of both the

C.C. No.26 of 2008                 \\17//

 

complainants. In our view, neither it is a matter of chance nor co-incidence, but it is a matter of some imperfection or shortcoming whatever it may be.

25.              Though the shortcoming, imperfection or inadequacy in service, as in this case, may not be sufficient to impose damages or compensation on the treating doctor or the hospital, but still a duty is cast upon the hospital and the doctor to atleast undo the fault, imperfection, shortcoming or inadequacy in the treatment given to the patient. We mean to say that when the complainants have reported to the doctors at Dayanand Medical College & Hospital that the nails inserted in their thighs have broken down, the doctor or Dayanand Medical College & Hospital authorities should not have thrown them out of the hospital. A duty is cast upon the hospital to retreat the patient so that the mistake, fault or shortcoming in previous treatment may be undone and rectified relieving the patients from further pain, sufferings and harassment. The complainants have spent whole of their savings and money on the treatment and infact have paid all the bills of the opposite party for the said treatment.

26.              Even otherwise, when the treatment given by the doctor at Dayanand Medical College & Hospital, Ludhiana had not brought the required results, the hospital authorities and the doctor in question were socially as well as morally liable to retreat the complainants so as to relieve them from further sufferings. No doubt, the doctors are not God and sometimes luck of the patient or other factors also do play a role, but still the doctors are considered next to God and it was their moral duty to retreat the complainants without charging any extra sum because in the present case,

C.C. No.26 of 2008                 \\18//

 

 

the complainants have suffered a lot due to some inadequacy in the treatment.

27.              If the doctors at Dayanand Medical College & Hospital are not in strict terms negligent, still no fault can be attributed on the part of the complainant, who have to face physical pain, harassment, loss of business etc. due to some inadequacy in the treatment whatever it may be. The foremost duty of a doctor and hospital is to serve. To yield should not always be the aim or motive on the part of health service providers. The status of a doctor for the patient is next to God, who is not expected to be so inhumane.

28.              The concept of morality is not unknown to the filed of legal jurisprudence.

29.              As discussed by Dr. S.R. Myneni in his book Jurisprudence (Legal Theory) 2004 Edition, morality represents the principle of good behaviour. It deals with the principle of right and wrong, but relates to good and virtuous living. It helps to understand the difference between right and wrong. It is equal to righteousness and honesty. In the earlier stages of society, no distinction was made between law and morals. The Roman jurists in the name of natural law recognized certain moral principles as the basis of law. There can be little doubt that moral consideration do influence rules of law. Prof. Lon L. Fuller is regarded as a leading natural lawyer. Morality of law according to him has two aspects, external and internal. External morality is the morality of aspiration, ideals. Internal morality is a

C.C. No.26 of 2008                 \\19//

 

procedural version of natural law. It is the morality that makes the governance of human conduct of rules possible. A judge may stay neutral with regard to external morality, but not with internal morality. The inner morality is not something superimposed on the power of law, but is an essential condition of that power itself. It is a pre-condition of good law. He says that immoral policies are bound in the end to weaken the inner morality and so the very quality of law.

30.              Many jurists argue that the law must conform to morals.

They say, if the law is not in conformity with morals it is not valid and binding. In practice, to a great extent law conforms to morals due to many reasons. It is the general opinion that law is not law unless it is not conformed to morality. Morals have often been considered to the end of law. Law has always a purpose; it is a means to an end and this end is the welfare of the society. The interests which can bring greater benefit with the legal sacrifice should be recognized and protected. Law and morals act and react upon and mould each other. In the name of justice, equity, good faith and conscience, morals have infiltered into the fabrics of law. In judicial law making, moral considerations play a very important role. All human conduct and social relations cannot be regulated and governed by law alone. A considerable number of them are regulated by morals. So far as the legal rules are concerned, it is not the legal sanction alone that ensures their obedience but morals also help in it. Thus, morals perfect the law.

31.              The Consumer Protection Act is a special legislation enacted for the better protection of the consumer rights. The quasi-judicial bodies

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like Consumer Forums are required to observe the principle of natural justice. The District Consumer Forum consists of one judicial member and two non-judicial members, one of whom should be a woman. The persons of ability, integrity and standing and having adequate knowledge and experience in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration are taken as non-judicial members. The Consumer Forums are supposed to decide the cases on the basis of principles of natural justice. It can be said that when the technicalities of law come into the way of natural justice, then the principle of natural justice have to prevail. The principles of natural justice, equity and good conscience prevail over the technicalities of legal frame work paving way for a justice, which may not look so good while seen through the mind of a judicial person entangled in the frame work of legal technicalities, but seems very judicious when it is so observed by the minds taking decision on the basis of morality, equity and good conscience. The principles of equity and good conscience are well known in the field of law. As explained by Dr. S.R. Myneni in the book Jurisprudence, referred to above, equity is synonymous with justice. Equity is the embodiment of the grace of the graceful Goddess of justice. Equity follows the law. Equity is not a substitute for the law. It is only a supplement to the law – to correct the law and bring it more in consonance with justice. Aristotle considered equity as the correction of the law. Law without equity is hard and rigid and leads to injury.

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32.              In English law as well as Indian law, the principles of equity, morality, natural justice and good conscience are more oftenly recognized.      

33.              Now coming again to the merits of the case, there is no definite explanation as to what were the exact reasons for the breakage of nails of the complainants. When the nails of the complainants have broken down, according to the principles of morality, equity, justice,  good conscience and natural law, a duty was cast upon opposite party No.1 and 5 i.e. hospital and the doctor to offer them further treatment free of cost i.e. physical damage occurred to the complainants could have been compensated if not in the shape of monetary compensation. The refusal to further treat the complainants without payment of charges is itself against the principles of morality, equity and natural justice.

34.              During the course of arguments, we had asked the learned counsel for the opposite party to enquire from his client as to whether they are ready to treat the patient Sarabjit Kaur now without any expenses to which the learned counsel for the opposite party out rightly refused. The Tertiary hospital like Dayanand Medical College & Hospital, in our view, is not established just to earn profits. The basic purpose nevertheless is to serve the society. To serve and not to yield perhaps is the basic principle of the hospital, as the Principal of the Dayanand Medical College & Hospital has advised the students in his lecture regarding Convocation - 2006 Principal’s Report, copy of which has been placed on the internet.

35.              We have been told that Dayanand Medical College & Hospital is a charitable hospital. It accepts grants and concessions as a charitable

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hospital. Counsel for the complainant relies upon a news item in which it has been mentioned that a huge amount of arrears of electricity bills of Dayanand Medical College & Hospital (opposite party No.1) have been kept in abeyance because Dayanand Medical College & Hospital claims itself to be a charitable hospital. If it is so, then the situation is more worse than expected. When seen through the facts of this case, the doctors and management of Dayanand Medical College & Hospital, Ludhiana are far away from morality, what to say of charity !

36.              As observed in paras above, there is a little, but fine distinction between medical negligence and deficiency in service and that distinction is very much applicable to the facts of the present case. Complainant Nishan Singh has now got replaced the nail in his thigh because according to the structure of the society, the male has to go out to earn for the family. But the poor lady Sarabjit Kaur is lying in the bed from the date of breakage of nail in her right thigh and could not get re-plantation of the nail for want of funds for the same as the opposite parties are demanding fresh/more charges for re-treatment. When there is no proof of any deliberate act or injudicious act on the part of the complainants, then the presumption is that the nails of both the complainants have broken due to some inadequacy, shortcoming or error of judgment in the treatment or as to the size or diameter of nail etc. on the part of the doctor.

37.              The present case is a case  of resipsa loquitor as the  facts itself speak that there is some inadequacy in quality of treatment resulting into the breakage of nails of both the complainants.

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38.              So keeping in view the entire facts and circumstances and in view of the observations made above, we, without holding opposite party No.1 and 5 in strict terms medically negligent, hold them deficient in service. Complainant Nishan Singh has already got treatment of his right thigh from Amandeep Hospital, Amritsar. However, complainant Sarabjit Kaur is awaiting for her turn to become able to stand on her legs again. In our view, it will be proper to direct opposite party No.1 and 5 to treat/replant the nail of complainant Sarabjit Kaur without accepting any charges. In our view if patient Sarabjit Kaur is treated without any expenses, it would also amount to a relief to complainant Nishan Singh because ultimately the expenses of treatment of his wife is to be borne by complainant Nishan Singh. Opposite party No.1 is also directed to use the services of super specialist of their hospital as is told to us that Prof. Dr. Mohammad Yamin is the Head of the Department of Orthopedics and is also a super specialist. So opposite party No.1 i.e. Dayanand Medical College & Hospital is directed to retreat the patient Sarabjit Kaur through Prof. Dr. Mohammad Yamin and Dr. Harpal Singh and the expenses of the treatment, including the fee of the doctors would be borne by opposite party No.1. Opposite party No.1, if so desires, may claim the same from opposite party No.3 and 6 i.e. United India Insurance Company Limited. If a claim is lodged with opposite party No.3 and 6, that will be judiciously decided by them. Opposite party No.1 and 5 are further directed to retreat the defect, if any, occurred in the right Bycep of complainant Nishan Singh without accepting any further charges. All the

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charges of medicines and instruments, including metal rod etc. and stay at hospital during the treatment will be borne by opposite party No.1 hospital. The complainants will be given stay in a room equal in standard which was taken by the complainants during their previous treatment. Opposite party No.1 and 5 would give a definite time to the complainants to report to their hospital for treatment, which would be of not more than two months from the date of receipt of copy of this order. We expect that the complainants would be treated just like another patients and no ill will or feeling of any hatred would come in the minds of the treating doctors as we have already opined that doctors are considered next to God. Opposite party No.1 is further directed to pay a sum of  Rs.10,000/- to each of the complainant as compensation on account of physical as well as mental pains, agony and harassment and Rs.5000/- to each of the complainant as litigation expenses. In view of this, both the complaints are partly allowed. File be consigned to the record room.

Announced

                     30.9.2009                                                                             

                                                                             (Sanjay Garg)

                                                                              President

 

 

                                                                                     

                                                                             (Tarlok Singh)

                                                                              Member

 

                            



Learning

 1 Replies

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     31 December 2009

It is very good jugment.


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