BHUPENDRA PAL DHAMI v. MANJU GUPTA & ORS.

circumstances prayer has been made for accepting the appeal and for dismissal of the complaint. The appellant in FA/1156/2012 states that he is not at all involved in any type of medical practice. He only owns the OP hospital as a proprietor. Infact his argument is that his son Dr. B.P. Dhami and his daughter in law Dr. Varsha Dharmi manage the affairs of the Hospital. Their sole arguments is two folded, namely, the death has been caused due to cardiac problem which is unconnected with the ailment he was treated. Secondly, the death was done at Sir Ganga Ram Hospital two days after the admission of the patient there and therefore the allegation regarding negligence qua their hospital is not maintainable.

8.

The respondents in all three cases were noticed and in response thereto the three respondents have filed three separate reply resisting the appeal.

9.

Reply of the respondent in FA/1133/2012 The respondents have stated inter alia that the doctor who had done the surgery was unskilled, not qualified to undertake the treatment required by the patient and secondly they admitted the patient knowing it fully well they do not have the resources and infrastructure or the facility to administer the treatment. Admission of the patient was allegedly to extract money. In these circumstances their submission is that there exists no infirmity in the order and that the appeal be dismissed with cost.

10.

Reply of the respondent in FA/1156/2012 The respondent strongly contesting that the appellant despite not a qualified doctor having fraudulently obtained the licence to administer the nursing home, has done the treatment resulting in deteriorating condition of the patient, thus negligent and in that event there exists no infirmity in the order, warranting interference by this Commission. Secondly the Delhi Medical Council also having held the appellant guilty and negligent, the allegation of medical negligence as against them stands substantiated and thus there exists no ground to interfere with the order.

11.

In the appeal FA/151/2013 filed by the Oriental Insurance Company Ltd., the respondent number 1 to 4 are already proceeded ex-parte vide proceedings recorded on 26.04.2016. The respondent number 10, United India Insurance Company Ltd., has however filed the reply to the appeal, stating two folded submissions, namely, no allegation has been made by the complainant as against them and secondly, no cause of action as against them subsists in the appeal and therefore the matter qua them be treated as closed.

12.

Short question for adjudication in the two appeals, assailing the orders dated 06.09.2011 passed the District Forum, holding that the two appellant hospitals are negligent and awarding compensation in favour of the complainant to be paid by them, whether the said orders suffer from any infirmity.

13.

Having perused the pleadings and other facts of case and the opinion of the hospital, I may deliberate whether the OPs were negligent in the whole process as alleged. For this purpose I may examine as to what constitutes or accounts for negligence. Negligence per se is defined in Black's Law Dictionary as under:

14.

Negligence per-se : conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property,

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so constitutes. According to Hulsbury's Law of England Ed. 4 Vol. 26 pages 17-18, the definition of Negligence is as under:

"22. Negligence : Duties owed to patient. A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case : a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient.

These appeals were listed before this Commission for final hearing on 19.09.2019 when the counsel for all the parties appeared and advanced the arguments in support of their pleadings, the appellant for setting aside the impugned order based on the grounds advanced by them in the appeal and the respondents for dismissal of the appeals as no ground has been made out for interference with the impugned order holding the appellants deficient in rendering service to them. I have read and re- read the records of the case and given a careful consideration to the subject matter.

15.

I notice from the death bulletin/treatment summary in respect of the deceased issued by the Sir Ganga Ram Hospital clearly indicating that the cause of death was owing to the negligence of the appellants. Secondly on the recommendations of the team of doctors post martem was done at Maulana Azad Medical College who on examination referred the matter to the Delhi Medical Council. The said council having evaluated the documents, treatment summary and statement of the associated doctors and having gone through the all aspect of this case, held guilty the doctors of the OP nursing home. They were made sole responsible for the death of the said patient, Dinesh Gupta. The DMC instructed to Directorate of Health services to take legal action under Section 27 of DMC Act and other possible legal actions.

16.

The observation made by the Delhi Medical Council is indicated below:-17. The council makes the following observations:-

The surgery was conducted at Shakuntala Nursing Home on 04.01.2008 at 5.30pm. As per the records the surgery was done by Dr. Vikas Gupta and he was assisted by Sh. J. Raj Dhami. During the inquiry it was revealed that Sh. J. Raj Dhami who is the owner and is not a qualified doctor or surgeon assisted Dr. Vikas Gupta.

a.

Post-operatively as per the brother of the patient, the patient had severe abdominal pain. Since, Dr. Vikas Gupta, the operating surgeon had left at 8.30pm, the patient was seen by Sh. J. Raj Dhami and one of his junior's. It is noted had Sh. J. Raj Dhami is not a qualified medical practitioner, however, he prefixes "Dr. to his name. According to Sh. Vinod Gupta, in the absence of Dr. Vikas gupta, the patient was looked after by Sh. J. Raj Dhami only.

b.

As per the admission of Sh. J. Raj Dhami and Dr. Vikas Gupta made before the Council, the operating surgeon was not intimated about the condition of the patient till 10 am next morning when Dr. Vikas Gupta came to see the patient on his own.

c.

As per the hospital records and oral submission of Dr. Vikas Gupta he did not notice, anything wrong in the condition of the patient on 05.01.2008. The vitals were stable, abdomen was soft and drain output was nil. However, as per the brother of the patient, there was no relief in the pain of patient. d.

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As per records, patient was next seen by Dr. Vikas Gupta on 06.01.2008. By this time the patient had developed features of peritonitis probably due to intestinal perforation and was advised urgent exploratory laparotomy. However, as per the physician of said Nursing Home the patient would have required ICU support post-operatively and this was not available with the nursing home. Keeping this fact in mind he was referred to a higher centre for further treatment. e.

In light of the observations made hereinabove, the Delhi Medical Council is of the following opinion:-

Duodenal injury is a known complication of Laparoscopic Choleystectomy. This can present post- operatively anywhere between 24hrs. to 72hrs. depending on the mode of injury. In this case, by the time injury was diagnosed the patient had developed features of perforation peritonitis. The prognosis of this complication is very poor and unfortunately, this patient died despite adequate treatment at Sir Ganga Ram Hospital.

I.

There was no qualified assistant in the team.II. There was a deficiency in post-operative care, monitoring and recording.III. It is therefore, the decision of the Delhi Medical Council that post-operatively the patient did not receive reasonable degree of care in the treatment as is evident from the fact that the condition of the patient in absence of the operating surgeon was being monitored by an unqualified person namely Sh. J. Raj Dhami. It also reflects the callousness exhibited by a qualified medical practitioner towards the patient, by leaving him in the hands of an unqualified person, who as is apparent from the facts of this case was neither qualified nor competent to properly assess the clinical condition of the patient. Hence, no noting have been made in the records about the clinical condition of the patient, apart from those recorded by Dr. Vikas Gupta.

This case is a perfect example of malaise which plague numerous nursing homes which are being run by such unscrupulous person like Sh. J. Raj Dhami who claim/project themselves as qualified doctors and lure the gullible citizens into their trap and qualified doctors like Dr. Vikas Gupta by associating themselves with such individuals promote such nefarious activities.

The Delhi Medical Council directs removal of name of Dr. Vikas Gupta from the State Medical Registrar for a period of 30 days, stricture to be recorded in State Medical Registrar of Delhi Medical Council. Director Health Services to be requested to investigate Shakuntala Nursing Home in light of the observations made in this order and to take stringent action against it. Sh. J. Raj Dhami to be prosecuted under Section 27 of Delhi Medical Council Act in addition to other provision of the law.

The opinion of the Delhi Medical Council holding the above named doctor guilty of medical negligence is final. However, the order directing the removal of name of Dr. Vikas Gupta from the State Medical Registrar of Delhi Medical Council shall come into effect after 30 days from the date of this order.

During the course of the arguments the appellants were confronted to clarify whether any appeal has been preferred before the Medical Council of India assailing the observation made by the Delhi Medical Council or any Writ Petition was filed before the Hon'ble High Court. The answer to this was in negative inasmuch as no appeal or writ petition was filed although criminal proceedings are pending, which means and to put it differently there exists no gravaman to the appellants on the said report holding them guilty and negligent. If that be the case the impugned order also holding them negligent is unassailable. Even otherwise on merit also, keeping in view the records and other documents relied upon, this Commission does not find any infirmity in the orders, subject matter of this appeal. Having regard to the discussion done the two appeals FA/1133/2012 and FA/1156/2012 cannot be accepted and I have no reason to take a different view. The orders passed by the District

18.

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Forum are accordingly upheld, leaving the parties to bear the cost. However the amount so awarded in the preceding paragraph be paid in partial modification of the orders passed by the District Forum, by the hospital being vicariously liable, as held by the Hon'ble NCDRC in the matter Post Graduate Institute of Medical Education and Research and Anr Versus Jasmine and ors as reported in III [2018] CPJ 72 (NC), within a period of two months from the date of receipt of the copy of this order failing which simple interest at the rate of 9% shall accrue till the realisation of the amount.

19.

Orders passed by the District Forum are modified to this extent. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information and records.

20.

FA/151/2013 which is more of seeking clarification than assailing the orders passed by the District Forum is disposed of with the direction to the Insurance Companies to settle the claim, keeping in view the sum assured. No further orders are warranted in the subject.

21.

Registrar is requested to keep certified copy of this order in FA/1156/2012 and FA/151/2013 also for records and information.

22.

File be consigned to records.23. (Anil Srivastava)

Member

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