The complainant Sandeep Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Adesh Institute and another (here-in-after referred to as opposite parties).
Briefly stated the case of the complainant that he is suffering from Ear discharge from his right ear and he was taking treatment from Dhillon Hospital, Ajit Road, Bathinda. Whenever complainant suffered from this ear problem, he took medicine from Dhillon Hospital, and felt relief. It was a temporary treatment and the doctor advised him that it will be cured by operation. The complainant only suffered ear discharge, but his hearing power was absolutely good.
It is alleged that the complainant is beneficiary under Bhai Ghanhiya Scheme and the opposite parties shown readiness to provide cashless treatment under the said scheme. The complainant started his treatment from Adesh hospital under the observation of doctor Grace Budhiraja (opposite party No.2) in the month of August 2017 and she advised the complainant for operation. Before operation, opposite parties conducted all the necessary tests including audiological evaluation test and reports were good. The listening power of the complainant was very good before the operation of the ear.
It is alleged that on 6.11.2017, complainant was admitted and the operation was conducted on 7.11.2017 and he was discharged on 11.11.2017. Before operation, the opposite parties took consent for operation and also obtained signature of the complainant on many blank and printed papers. After operation, complainant visited Adesh Hospital regularly for his post operative checkup/ follow-ups from opposite party No.2
It is further alleged that after operation complainant felt that he has lost his hearing and listening power. He visited opposite parties for follow up and complained to the doctor. The opposite parties did necessary tests including Audiological evaluation tests, which clearly shows that the complainant has lost his hearing and listening power. Audiological evaluation test conducted by opposite parties after the operation on dated 2.1.2018 and 16.1.2018. Thereafter complainant consulted many doctors and they also conducted tests, which revealed that after operation, he lost his listening and hearing power because operation was not successful. The complainant visited Guru Gobind Singh Medical College Faridkot for his check up and they also conducted tests and gave their opinion that the complainant has lost his listening and hearing power. In this regard the Civil Surgeon Faridkot also issued 16% hearing handicapped certificate after thorough check-up of the complainant.
The complainant alleged that he was taking treatment as outdoor patient from 11.11.2017 to till date and spent Rs. 1,00,000/-. The complainant also incurred Rs.10,000/- on travelling and Rs. 20,000/- on rich diet etc. It is alleged that complainant has suffered financial loss and also suffered physical and mental agony for which he claimed compensation to the tune of Rs.8,50,000/-. It is alleged that there is negligence and deficiency in sevice on the part of the opposite parties.
On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay an amount of Rs. 1,30,000/- incurred on treatment alongwith compensation to the tune of Rs. 8,50,000/- in addition to Rs. 11,000/- as litigation expenses.
Upon notice, the opposite parties appeared through counsel and contested the complaint by filing written reply raising legal objections that the complainant is not consumer. No consideration was ever paid by the complainant to the opposite parties and the complainant has never hired any services of the opposite parties. The entire treatment of the complainant was done free of cost. The complainant has not come to the Commission with clean hands and has no cause of action and that the complainant himself is negilent and is at fault.
On merits, the opposite parties admitted that the problem of the complainant regarding his ear was a very old problem and the complainant was not taking regular treatment as advised by the earlier doctors and was rather negligent. It was specifically denied that the hearing power of the complainant was absolutely good before coming to the Institute of the opposite parties and particularly the surgery done by the opposite parties. The complainant came to the opposite parties with a motive to get treatment free of cost. The complainant was never assured by the opposite parties that his problem will be totally cured or that he will not face any ear problem in future rather the complainant was well informed by the opposite parties regarding the risk factor and success rate of surgery varies from 60 to 99%. Thereafter the complainant consented for the surgery in question and signed in English and Punjabi language.
It has been pleaded that hearing test dated 26.09.2017 showed mild conductive hearing loss in complainant's right ear. All the tests were conducted by the opposite parties on the complainant as prescribed and required for the nature of surgery. Reports of the complainant were not very good due to which the complainant was advised to get the surgery done. The complainant was also suffering from listening power before coming to the opposite parties as disclosed by the complainant himself during his various visits before the surgery. The consent of the complainant was obtained only after apprising him of all the risk factor and success rate of the surgery in question.
It has been further pleaded that the complainant was himself very negligent. He did not obey the post surgery advise given by the opposite parties regarding the care, precaution and hygiene. The complainant was also given written instructions slip to be followed in post operative period. The complainant lifted heavy weights immediately after the surgery against the advise of the opposite parties which resulted into damage due to pressure change to the operated part of the ear.
It has been also pleaded that the surgery was successfully done by the opposite parties as per the prescribed standard procedure with latest equipment available in the institute of the opposite parties. The complainant was discharged in healthy condition, but the complainant was himself negligent before the surgery and also after surgery. The complainant never followed the advice given by the opposite parties pertaining to the post surgery care and caution and never regularly visited the opposite parties for the post surgery follow ups as advised. Complainant was advised to come after 10 day's on 07.12.2017 but he came on 02.01.2018. Complainant did not follow advice to consult the physician and Psychologist on 07.12.2017. It is denied that the complainant lost his hearing and listening power. The surgery was successfully done but it was never promised or assured by the opposite parties that the result of the surgery will be 100%. The success rate of surgery varies from 60 to 99% in adults and this fact was brought into the knowledge of the complainant before taking his consent for the surgery in question. The surgery in questions was a routine surgery performed at the Institute of opposite parties on regular basis. The surgery in question was performed by Dr. Grace Budhiraja (opposite party No.2.). As per experience of opposite party No. 2, the hearing loss of this magnitude should not have occurred due to the surgery in question i.e. Myringoplasty/tympanoplasty, Type 1. PTA tests can have false results and cannot be relied upon. If the patient/complainant would have come for regular follow up and followed the advise given in the post operative instructions and had not lifted the heavy weight, got done the TCA application on the margins of the residentual perforation as advised on 7.12.2017, the complainant would not have landed into this condition. So the negligence is solely on part of the complainant himself. No doctor ever opined that the complainant lost his hearing and listening power after the operation /surgery in question. The complainant was explained by Dr. Kapila of SPS Apollo Hospital that there was fungal debris in right ear. The complainant was advised suction cleaning and PTA but the complainant failed to follow the advise of the said doctor. Presence of fungus in ear shows the negligence on the part of the complainant as he was consulting number of doctors but was not following their advise. The complainant never kept his ear clean as advised by the opposite parties and various other doctors and got infected with fungus infection which lead to interference in hearing.
It has also been pleaded that the complainant was having listening and hearing problem for the past so many years before coming to the opposite parties. Alleged 16% hearing handicapped certificate is not very significant in nature as falsely alleged by the complainant. The Gazette of India states that 16% hearing is mild in nature. As per the Gazette of India 'Deaf' means person having 70 DB (57.1%) hearing handicap problem loss in speech in both ears. Similarly 'Hard of hearing' means person having 60 DB to 70 DB (40% to 57.1%) hearing loss in speech frequencies in both ears.
The opposite parties further pleaded that they did not charge even a single penny from the complainant. The complainant himself was negligent throughout the treatment with the opposite parties and was rather negligent before coming to the opposite parties as he never bothered about the advise given by the previous doctors. After controverting all other averments of the complainant, the opposite parties prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence his affidavit dated 11-9-2018 and the documents (Ex. C-1 to Ex. C-32).
In order to rebut the evidence of complainant, the opposite parties tendered into evidence affidavit dated 5-11-18 of Dr. Grace Budhiraja (OP-1/1) and the documents (Ex. OP-1/2 to Ex. OP-1/15).
We have heard learned counsel for the parties and gone through the record.
The learned counsel for the complainant submitted that complainant was suffering from some ear problem. He visited opposite parties in the month of August, 2017 and opposite party No. 2 after check-up advised the complainant for operation. The complainant was admitted on 6-11-2017 in the hospital of the opposite parties and opposite party No. 2 performed operation on 7.11.2017. The complainant remainted admitted till 11-11-2017. The complainant kept on visiting the opposite parties regularly as advised by opposite party No. 2 for post operative treatment. The complainant observed that after operation he lost hearing and listening power. The complainant complained to opposite party No. 2 and opposite party No. 2 conducted necessary tests including Audiological evaluation test which revealed that complainant lost his hearing and listening power. Civil Surgeon, Faridkot also issued 16% hearing handicapped certificate after checking the complainant. The opposite party No. 2 was negligent in performing operation due to which complainant lost his hearing and listening power.
On the other hand, learned counsel for the opposite parties submitted that complainant was himself negligent as he has not followed the advise of doctor. He did not obey the post surgery advised given by opposite parties regarding the care precaution and hygience. He lifted heavy weights immediately after surgery against the advise of the opposite parties which resulted into damage due to pressure change to the operated part of the ear. The surgery was successfully done by the opposite parties as per prescribed standard and procedure with latest equipment. Even Dr. Kapila of SPS Apollo Hospital, explained to complainant that there was fungal debris in his right ear. The presence of fungus in ear shows the negligence on the part of complainant. Moreover, 16% hearing handicap problem is mild in nature. Complainant has not produced any expert evidence to prove negligence on the part of the opposite parties.
We have considered the rival contentions and gone through the record carefully.
In order to decide the controversy involved in this case, the observations of the Hon'ble Apex Court reproduced in the case of 2012(IV) CPJ 18 case titled Amar Singh Sidhu (Dr) & Anr. Vs. Anuradha Rani & Anr. are also relevant. For the sake of convenience, some of the observations are reproduced as under :-
“ Hon'ble Supreme Court in case cited as Martin F. D'sourza Vs Mohd Ishfaq 2009 (I) CPJ 32 (SC)..... has observed that :
“49. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.
In para No. 47 of Martin F. D'Souza's case (supra) it has been held that :-
“Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.”
In case cited as Mohd. Abrar V. Dr. Ashok Desai and Others 2011(II) CPJ 115 (NC)......Hon'ble National Commission has observed as under :-
“The medical practitioners cannot be treated as magicians or demi-gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practitioner and there was clear material available to foresee the injury.”
In the case 2004 NCJ 37 (NC) 37 case titled K S Bhatia Vs. Jeevan Hospital, Hon'ble National Commission has observed that as per settled law on the subject, complainant has to allege which action of the opposite parties was not as per accepted medical practices. What was done which should not have been done. This has to be supported by expert evidence or medical literature on the subject.
In the light of observations recorded in the above referred cases, now it is to be seen whether the complainant has been able to prove any medical negligence on the part of the opposite parties.
The complainant has mentioned in his complaint that he suffered ear problem and he used to visit doctor in this regard after a year or two. A perusal of prescription slips issued by Dhillon Hospital, Bathinda, produced on file by the complainant do not reveal dates but one or two slips show that complainant was taking treatment from that hopsital since year 2011-2012. Thus, the complainant visited the opposite parties in the month of August, 2017 with chronic problem. This fact is further corroborated by CT Scan report dated 12-10-2017 issued by the opposite parties (Ex.C-13) whereby under heading 'Impression' it has been mentioned 'Right Chronic myringitis with right CSOM.'
The complainant has alleged that opposite parties were negligent in performing operation due to which he lost his hearing and listening power. The opposite party No. 2 performed Myringoplasty/tympanoplasty Type 1 surgery upon the complainant on 7-11-2017 and he was discharged from hospital on 11-11-2017 as per Ex. C-16 in satisfactory condition. Complainant visited opposite parties on 9th post operative day when stiches were removed and wound was found healthy as is evident from Ex.C-17. Ex.C-18 is prescription slip issued by the opposite parties. This document reveals that on 07-12-2017 a specific remark has been given by the doctor/opposite party No. 2 that “Patient had lifted heavy weight”. Medicines were prescribed and complainant was advised to visit again for follow-up after 10 days but a perusal of prescription slip (Ex. C-20) reveals that complainant visited opposite parties on 02-01-2018. On this prescription slip again a specific remark has been given by doctor (opposite party No.2) that “Patient did not come for follow-up inspite of repeated calls”. Therefore, evidence placed on file by complainant himself proved that complainant was not regular in follow-up for post-operative treament and he lifted heavy weight immediately after operation against the advice of operating doctor.
The complainant has alleged that surgery was not successful but he has not placed on file any expert evidence to prove that opposite parties were negligent in performing sugery in question.
The complainant has placed on file 16% hearing handicapped certificate (C-32) issued by Civil Surgeon, Faridkot. As per Gazette of India (Ex. OP-1/7), 16% (48DB) hearing handicap problem is mild in nature. Deaf means person having 70 DB (57.1%) hearing loss in speech in both ears and Hard of hearing means person having 60 DB to 70 DB (40% to 57.1%) hearing loss in speech frequencies in both ears.
The opposite parties have placed on file sufficient evidence relating to qualification and experience of opposite party No. 2 to prove that she was competent to perform surgery in question but the complainant has not placed any document to file to challenge the competency of opposite parties.
The complainant has alleged that he consulted many doctors. He has placed on file prescription slip issued by Dr. Kapila of SPS Apollo Hospital, dated 16-07-2018 (Ex.C-28), which reveals that there was fungal debris in right ear. The complainant was advised suction cleaning and PTA. Presence of fungus in ear shows negligence on the part of complainant as he himself admitted that he consulted number of doctor but it seems that he did not follow their advise. This shows that he did not obey the post surgery advise regarding care, precaution and hygiene.
The complainant has also placed on file prescription slip dated 10-12-2017 issued by Kapoor Nursing Home, Jaipur. This document shows that said doctor has mentioned 'No active intervention required at present' and also advised residentual perforation. If the complainant would have visited the opposite parties for regular follow up and followed the advise given in the post operative instructions and had not lifted the heavy weight, got done TCA application on the margins of the residentual perforation as advised on 7-12-2017 (Ex. C-18), he would not have landed into this conditions.
Ex. OP-1/2 is the medical literature wherein it is mentioned that Wullsterin in 1956 (2) classified tympanoplasty, with myringoplasty being classified as a Type 1 tympanoplasty. Under the heading 'complications' it has been mentioned that Myringitis can occur, influenced by the presence of infection or choice of material through most cases resolve within 3 months with short term topical medication and observation.
The evidence placed on file by complainant himself proved that he was himself negligent in regular follow up for post operative treatment rather he lifted heavy weight immediately after surgery which has been specifically mentioned by the opposite parties when he visited opposite parties and disclosed this fact. The complainant has not placed on file any evidence or document of any doctor who treated complainant after the opposite parties to the effect that there was any negligence on the part of the opposite parties in performing surgery or treating the complainant.
From the foregoing discussion, we are of the view that complainant has failed to establish any negligence by producing cogent and convincing evidence on the file about diagnosis, pre operative treatment, treatment during/in performing surgery and post operative treatment provided by opposite parties to complainant. Hence, medical negligence alleged by the complainant is not proved.
In the results, this complaint fails and is hereby dismissed with no order as to costs.
The complaint could not be decided within the statutory period due to covid pandemic and heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record room.
Announced :
24-08-2022
- (Kanwar Sandeep Singh)
President
