STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No. 29 of 2022 Date of institution : 14.01.2022 Reserved on : 06.09.2023 Date of Decision : 26.09.2023 Usha Sharma w/o Sh. H.L. Sharma r/o H. No. 321, Preet Colony, Near Nanda Poultry Farm, Jandli, Near Ganesh Jee Castings, Ambala City Pincode-134 005, Distt. Ambala. Aadhar Card No. 276628342963 Cell No. 6239637154 ….Appellant/Complainant
Versus
1. Ivy Hospital, through its Managing Director / Manager Concern, Sector 71, Mohali, Punjab
2. Fortis Hospital through its Managing Director / Manager Concern, Sector 71, Mohali, Punjab
.…Respondents/Opposite Parties
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the order dated 30.11.2021 passed by the District Consumer Disputes Redressal Commission,
Fatehgarh Sahib.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellant : Sh. Manish Kumar, Auth. Rep. For respondent No.1 : Sh. Inderdeep Singh, Advocate For respondent No.2 : Sh. Munish Kapila, Advocate
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SIMARJOT KAUR, MEMBER :
Appellant/complainant Usha Sharma, the daughter of the deceased has filed the present appeal being aggrieved by the order dated 30.11.2021 passed by the District Consumer Disputes Redressal Commission, Fatehgarh Sahib (in short, "the District Commission"), whereby the complaint filed by her against the respondents/OPs was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the appellant/complainant before the District Commission are that in the midnight of 10.09.2016 the mother of the complainant, namely, Smt. Wash Devi complained of pain in her abdomen followed by severe vomiting. The complainant took her mother immediately to Military Hospital Ambala Cantonment and got her admitted there in emergency. Later on some investigations were carried out and the mother of the complainant remained in ICU at Military Hospital but her health started deteriorating. The doctors of the said Hospital referred her to ECHS empanelled Hospitals after examination by forwarding a letter so that the patient could be given out of turn treatment and immediate admission in ECHS empaneled hospital for a speedy treatment. On 13.09.2016 at 1:30 a.m., the complainant along with her mother reached OP No. 1 Hospital i.e. IVY Hospital Mohali being the empanelled Hospital under ECHS scheme. It was mentioned that the doctors of the hospital refused to admit the patient
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with the plea that they did not have any bed in the ICU. The complainant moved to OP No.2 i.e. Fortis Hospital Mohali, another ECHS empanelled Hospital but OP No.2 Hospital also informed that they did not have any vacant bed in the ICU. During this period, the health of the mother of the complainant was deteriorating fast but the OPs due to their adamant attitude did not provide even the basic First-aid/primary treatment to the mother of the complainant. The complainant was left with no other option but to move her mother back to Military Hospital, Ambala which was at a distance of 70-80 Kms from Mohali. On 13.9.2016 at about 5:30 a.m. - 6:30 a.m., the complainant again got her mother admitted in the ICU of Military Hospital, Ambala where she was stabilized. Due to the critical condition of the patient, she was referred to Indus International Hospital, Dera Bassi, Mohali, which was the other ECHS empaneled Hospital situated at a distance of 50 Kms from Ambala. The complainant had managed to get her mother admitted in said Hospital at 9:15 a.m. but the mother of the complainant was passed away when her routine tests were being conducted. It was stated that all this had happened due to negligence of the opposite parties as had the treatment was given in ICU/Emergency Treatment, she would have survived. It was also argued that the hospitals have transformed as a platform for commercialization and are often show reluctance for treatment to those patients, who are not able to pay them. Later on due to the said conduct of the OPs, the complainant through her son, namely, Sh. Manish Kumar had moved an application dated
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13.10.2016 against the conduct of the OPs to the Punjab Medical Council, Mohali but no fruitful results could be achieved.
4. Stating that the act and conduct of OPs for not admitting the patient i.e. ailing mother of the complainant resulting in harassment of the complainant physically, mentally and financially, the act of the opposite parties is unfair, amounting to 'unfair trade practice'. Hence, the complaint has been filed for issuing directions to the opposite parties to pay Rs.18,00,000/- (Rs.9,00,000/- each) in the shape of compensation along with the total amount incurred by the complainant towards the medical treatment of her mother and Rs.33,000/- as litigation expenses along with the interest accrued thereon.
5. The complaint was contested by the OPs before the District Commission by filing their separate written versions. OP No.1 had taken certain preliminary objections that the contents of the complaint had not been expressly admitted; further it was stated that the patient (mother of the complainant) could not be admitted in the hospital due to non-availability of ICU bed. They had given in writing regarding this fact to the complainant. It was also mentioned in the said letter that the list of names, addresses and phone numbers of 14 other hospitals empanelled with ECHS were provided to the complainant, where the patient could be admitted. It was also submitted that mere non-availability of bed cannot be construed as an aberration on the part of the OPs Hospital warranting award of compensation to the complainant. The complaint being misconceived,
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unwarranted, baseless, cannot be a case of negligence on their part. The complaint is an abuse of the process of law and the same had been filed with a motive to harass, malign the reputation of the answering respondent and to blackmail them. The complainant was not consumer of OP No.1, as there was no privity of contract between the complainant and OP No. 1. On merits also, it was pleaded that the complainant had wrongly pleaded that OP No.1 was reluctant in providing First-aid to the patient whereas the patient Wash Devi did not require any First-aid as it was not a case of accident. Rather she required ICU bed, which was not available. Without wasting any time, the caretakers of the patient were informed to take her to another faculty, OP No.1 Hospital had also mentioned this fact in its written slip wherein phone number and addresses of 14 Hospitals empaneled with ECHS in the vicinity was mentioned so that the attendants of the patient could have contacted/taken the patient to any of these Hospital/Centres. It was pleaded that it was not a case of negligence on the part of the answering respondent and had prayed for dismissal of the complaint with costs. OP No. 2 in its separate reply had also taken the same stand.
6. By considering the contents of the complaint and replies filed by the OPs, going through the documents on the file as well as on hearing the arguments raised by all the sides, the complaint was dismissed by the District Commission vide impugned order dated 30.11.2021 after observing as under:-
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"8. Admittedly the Mother of the CC was referred to any empanelled Hospital under ECHS scheme. She was not referred to IVY Hospital Mohali or Fortis Hospital Mohali specifically. The both Hospitals showed their inability to admit the mother of the CC due to non-availability of bed in ICU and both hospitals provided a list of other 14 empanelled hospitals alongwith their contact numbers and addresses. From the perusal of the list of empanelled Hospitals under ECHS scheme, we find that PGI Chandigarh, GMCH Sector 32, Chandigarh and General Hospital Sector 16 A, Chandigarh were also empanelled along with other 11 Hospital and CC could have gone to any other Hospital under the scheme instead of returning back to Military Hospital, Ambala. From the material available on file we do not find any intentional act of the OPs No. 1 and 2 which caused any type of harassment to the CC. It was unfortunate and bad luck that the bed was not available with the OPs No. 1 and 2 in ICU. This commission has sympathy with the CC, but without any fault of OPs, they can not be held liable for compensation or damages as prayed for.
9. In view of out aforesaid discussion we find no ground to allow the complaint and the same is hereby dismissed….."
7. Aggrieved by the findings of the District Commission, the appellant/complainant has challenged the order dated 30.11.2021 on the grounds that the findings of the District Commission are contrary to the facts that mother of the complainant (patient) was referred to the empanelled Hospital and not to the OPs. The District Commission had observed that instead of approaching 14 empanelled hospitals by the OPs, the complainant had opted to move again to Military Hospital. This fact is contrary to the factual position, since two multi- speciality hospitals had refused to admit the referred patient, the complainant thought in case multi-speciality hospitals of such high standards were running out of beds then other hospitals as mentioned in the slip, which were hardly up to the mark in comparison to the facilities provided by the OPs Hospitals, might also
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have refused to admit the patient. Therefore, without wasting any further time, she was moved to military hospital. It was pleaded that in the referral letter it was nowhere mentioned that patient should be given an ICU bed. In the referral slip it was categorically mentioned that it may approach ECHS empanelled centre with facility of GI surgeon and cardiologist for urgent admission and further management. It is clear that OPs instead of providing their services had tried to exonerate themselves from their prime duty by simply writing a note of non-availability of ICU bed even without examining the patient. Another ground was also raised by the appellant that the OPs had not placed on record any Register/Record, depicting as to how many ICU beds were there with them in their hospitals and how many were occupied by the patients at that point of time no such information was provided as to whether they had referred any other patient to some other hospital also on the same grounds or adjusted otherwise within the hospital on the same day. Another argument raised was that it was the foremost duty of the OPs to firstly treat the patient and thereafter to make arrangement for the emergency equipment but OPs had shown reluctance in one way or the other. The appellant had pleaded that the OPs had not admitted the patient Wash Devi being the ECHS patients pay very nominal charges towards the medical care as approved by the Government whereas these multi-speciality hospitals charge huge amount from private patients. Thus, there might be commercial angle too for the said refusal. In support of his contention, the authorised representative of the appellant had cited the judgment of the Hon'ble
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Supreme Court of case "Paschim Banga Khet Mazdoorsamity of Ors. Vs. State of West Bengal & Anr.", decided on 06.05.1996, wherein the compensation was granted to the patient as the State Hospitals had refused to admit the patient and such act amounts to 'deficiency in service' on the part of the State Hospitals. The District Commission had failed to take into consideration the evidence of the complainant. He has prayed to set-aside the impugned order and to allow the complaint.
8. On the other hand, learned counsel for the respondents had taken the same stand before this Commission also that they had not admitted the patient as there was no ICU bed available in their respective hospitals.
9. We have heard the learned counsel for the respondents, the authorized representative of the appellant and have also carefully perused the impugned order passed by the District Commission. We have also gone through the case file as well as law cited by the appellant.
10. Admittedly, the complainant had approached the opposite parties hospitals referred by the Military Hospital, Ambala as ECHS beneficiary. The referral slip (Ex. C-12) dated 13.09.2016 has clearly reflected that the patient was referred to ECHS empanelled Centre with the facility of GI Surgeon and Cardiologist for further admission and further management. As per the said referral slip, the complainant along with the ailing mother approached OP No. 1 firstly
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i.e. IVY Hospital Mohali, which was a multi-speciality hospital on the same day. The Hospital Authorities had neither admitted the patient in Emergency nor in any other faculty but had straightway handed over a refusal letter (Ex.C-17). Thereafter, the complainant approached another Multi-speciality Hospital i.e. Fortis Hospital, Mohali. They too had treated the patient in the same manner and handed over a refusal letter (Ex. C-18) with the same contents to the complainant. She was having no other option but to take her mother, who was in critical condition back to the Military Hospital, Ambala. The attending Doctors at the Military Hospital had stabilized the patient by admitting her in ICU. On the next day i.e. in the morning of 14.09.2016, the patient was shifted to Indus International Hospital, Dera Bassi where she passed away while undergoing routine medical examination/tests.
11. The issue for consideration before us is as to whether the refusal on the part of both the ECHS empanelled Hospitals in turning away the patient without giving primary medical treatment/examination rendered by GI Surgeon and Cardiologist as per the referral slip at their end, which was required by the patient urgently is an act of deficiency in service or unfair trade practice on their part or not?
12. Both the opposite parties/respondents have not produced any record pertaining to their respective hospitals regarding admissions in the ICU on the same day i.e. 13.09.2016 as per the documents available on the file. Also they did not take any defence of
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non-admission into their hospitals based on any documentary record during the course of oral arguments. The major defence taken by both the hospitals is that these hospitals had handed over refusal slips in which a list of 14-15 other ECHS empanelled hospitals' name, addresses and telephone numbers had been mentioned. Nowhere the OPs have raised the arguments that on the same day there was no admission in their respective ICUs subsequent to the issuance of refusal letter to the said patient.
13. No satisfactory reply was given by the OPs on the issue raised by the complainant regarding immediate/primary treatment by GI Surgeon and Cardiologist to the patient, as mentioned in the referral slip by the said Hospital. Both the OPs kept referring to non- availability of beds in their respective ICUs and side tracked the contention of the complainant. The OPs could have made an effort to stabilize the critical patient or could have admitted her in their emergency ward for treatment rather than turning her away from their respective hospitals. Both the hospitals are famous multi-speciality hospitals with all the modern facilities and it is beyond doubt that their Emergency would also be very well equipped to treat critical/serious patients. Since both the Hospitals are eminent multi-speciality hospitals, it is surprising that they have mentioned the reason as non- availability of ICU bed whereas it is a matter of fact that such hospitals are equipped with various ICUs like surgical ICU, Cardiology ICU and general ICU. Further the OPs have failed to give any cogent reason or produced documentary evidence for the refusal
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to admit a critical patient without giving her emergency treatment at their hospitals.
14. Admittedly, for this act both the hospitals have been issued warning letter/ advisory by the Ethics Committee of Punjab Medical Council on the complaint of Sunil Kumar, brother of the complainant. The document dated 19.12.2017 (Ex. C-1) has been perused carefully and it is clear from the same that both the Hospitals have not been absolved of their short comings and their act had been censured by the said Committee and advisory to the effect for giving treatment to ECHS patient on priority basis has been issued to them.
15. The Hon'ble Supreme Court of India in catena of judgments has given dynamic interpretation to Article 21 of the Constitution of India thereby expanding the meaning of right to life, which also includes the right to health. The Court further held that preservation of one's life is the necessary concomitant of the right to life enshrined under Article 21, fundamental in nature, secured, precious and inviolable. Therefore, it is clear that preservation of human life is of paramount importance and non- providing of timely necessary medical care to the patient is failure on their part and violation of the right of the person to life guaranteed under Article 21. It is the bounden duty of the Hospitals and Doctors to provide immediate medical treatment, if patient approaches for the same. It is also held by the superior courts that even when the beds are not available, hospitals are not to refuse
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admission to the patients and they have to be accommodated in other wards/places. The judgment of the Hon'ble Supreme Court referred by the appellant i.e. "Paschim Banga Khet Mazdoorsamity of Ors. Vs. State of West Bengal & Anr." (supra) is very much relevant to this question. In the present case, person/patient who is member of the petitioner-Samiti, suffered a brain injury after falling from train and was denied treatment at several hospitals due to lack of expertise and non-availability of bed. In the said case, State Government appointed an Enquiry Committee, who found the officials guilty in performing their duty and compensation was granted to Hakim Seikh- patient and also made number of recommendations including that "all possibilities should be explored to accommodate emergency patients in serious condition. Medical Superintendents were directed to take beds on loans from other wards for accommodating such patients as extra-temporary measures".
16. It was also observed/held by the Hon'ble Supreme Court in the case of "Pandit Parmanand Katara Versus Union of India and Others", 1989 (4) SCC 286 as follows:-
"Every doctor whether at a Government Hospital or other has the professional obligation to extend his service with due expertise for protecting life.
No law or state action can intervene to avoid/delay the discharge of this paramount obligation cast upon members of the medical profession. The obligation being total absolute and paramount."
17. Furthermore to examine the issue involved in the case, we have gone through the 'Standard Operating Procedure' i.e. Policies and Procedures on Care of patients in ICU/HDU issued
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by the Indira Gandhi Institute of Medical Sciences dated 17.05.2017. In the said instructions, under Column No. 3 of 'Policy', it is mentioned that 'as and when there is a shortage of beds, patients those who are normal will be shifted to the wards and priority will be given to the emergency patients' and under Column No.4 'one empty bed shall be kept reserved for all the time for receiving emergency patients, who need ICU admission.' Further under column 'Procedure', following instructions have been given. The relevant extract of the above said instructions is as under:-
"Patients needed emergency care is shifted to Intensive Care Unit will be depending up on the cases.
Admission Criteria in ICU: Admission criteria are used to select patients who are likely to benefit from the care of ICUs. Patients who meet any of the following criteria shall be admitted to the ICUs at the request of the consultant….."
From the reading of above instructions, it is clear that some measures are necessary to be taken to deal with the shortage of beds but the action of the respondent-Hospitals shows that they did not make any effort to resolve the said problem. It is also clear that both the Hospitals were not having any such mechanism in case of shortage of beds. Since in this case no timely primary medical treatment was given to the critically ill patient, rather the patient was denied admission due to non-existence of ICU Beds and she was compelled to be shifted again to Military Hospital, Ambala from where she was again shifted to Indus Hospital, Dera Bassi in a period of less than 24 hours. Thus, the OPs cannot be absolved of their
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callous/irresponsible approach in handling of the said patient and that too in such condition.
18. The stand of the complainant during the oral arguments that the OPs did not admit the patient Wash Devi due to commercial reason as the ECHS patients were to pay very nominal charges towards the medical care as approved by the Government whereas these multi-speciality hospitals charge huge amount from private patients. The main intent of ECHS policy as devised by the Ministry of Defence is to provide medical facilities to the patient/wife/legitimate children and wholly dependent parents of Ex-Servicemen Pensioner (ECM) through a network of ECHS empanelled hospitals. The manner in which the OPs/respondents Hospitals being multi- speciality ECHS empanelled hospitals have acted in the present case, does prove the averment of the complainant/appellant to some extent.
19. From the above discussion, it is clear that this act of the OPs tantamounts to deficiency in service. The definition of 'Deficiency' has been defined under Section 11 (i) of the CP Act, 2019:-
"(11) "deficiency" means any fault, imperfection, 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 and includes—
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(i) Any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
(ii) xxxx xxxx xxxx"
Therefore, in the aforesaid terms the refusal to admit the critically ill patient by the OPs tantamount to deficiency in service. It has also been held by the Hon'ble Supreme Court of India that the preservation of one's life is the necessary concomitant of the right to life enshrined under Article 21, fundamental in nature, secured, precious and inviolable.
20. One of the objections raised by the OPs is that there is no privity of contract between the complainant and the OPs, therefore, she did not fall within the definition of 'consumer'. In this regard, it is clarified that the empanelled Hospitals sign a Memorandum of Agreement with ECHS and as per the same, expenditure incurred on services provided by an empanelled hospital is paid directly to the empanelled facility by ECHS as per approved rates. If the patient had undertaken treatment from the said empanelled hospital, the amount incurred on treatment would have been reimbursed directly to the OP-Hospital by the ECHS, meaning thereby that there was an indirect contract between the ECHS beneficiary/Legal Heirs in the present case. Therefore, this averment does not hold true in the said case. Besides it has been held by the Hon'ble Supreme Court of India in case "Indian Medical Association Vs. V.P. Shanta and Others", III (1995) CPJ 1 (SC) that all the patients are consumers even if treatment is given free of charge.
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21. In the light of above discussion/observations, it is apparent that there was a serious deficiency in service by both the OPs/respondents-Hospitals for not examining the condition of the patient by the specialists doctors mentioned in the referral slip. Also no service was extended by their medical experts to stabilize a critical patient. May be by giving primary treatment to the patient on approaching them, she may have survived. This act of the OP- Hospitals is one of the reasons, which caused death of the patient- Smt. Wash Devi.
22. The above circumstances proved beyond doubt that the said act of the OPs/respondents harassed the complainant and patient mentally, physically and emotionally and this is an unfair act on their part. The negligence on the part of the OPs has been proved beyond doubt.
23. The findings of the District Commission are against the facts, law laid down by the Hon'ble Supreme Court in the cases i.e.
"Paschim Banga Khet Mazdoorsamity of Ors. Vs. State of West Bengal & Anr." (supra) and "Pandit Parmanand Katara Versus Union of India and Others" (supra) as well as Policies and Procedures laid down for the care of patients admitted in ICU/HDU. There is force in the contentions of the appellant, which proves 'deficiency in service' on the part of the OPs/respondents. As such, the appeal of the appellant is allowed and the impugned order dated 30.11.2021 passed by the District Commission, Fatehgarh Sahib is set-aside. We feel that the appellant be compensated by the OPs/respondents
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due to their deficiency for not providing emergency medical care. Accordingly, we deem it appropriate to direct the respondents to compensate the appellant. The respondents/OPs are directed to pay an amount of Rs.1,00,000/- each (Rs. One lac each) for mental agony, harassment and emotional turmoil. The above said amount be paid by the respondents within 4 weeks from the date of receipt of certified copy of the order.
24. Copy of this order be sent to ECHS Head Office with the direction to look into the said deficiency of the OPs-Hospitals and to take necessary steps in the matter so that in future other patients may not face same kind of problem.
25. Registry is directed to immediately send the certified copy of the order to the parties as well as District Commission, as per rules.
(JUSTICE DAYA CHAUDHARY)
PRESIDENT
September 26, 2023. (SIMARJOT KAUR) as MEMBER
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