BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 97 of 2014
Date of Institution : 24.7.2014
Date of Decision : 02.08.2016
Inderjeet Soni aged about 34 years son of Sh.Subhash Chander Soni, r/o House no.4375 New Abadi Street no.9, Abohar, District Fazilka (Pb.)
……Complainant.
Versus.
- Dr.Ashok Bishnoi, Sarita Ashoka Haddion wa Joron Ka Hospital, Sangwan Chowk, Dabwali Road, Sirsa, distt. Sirsa.
- Sarita Ashoka Haddion Wa Jorron Ka Hospital, Sangwan Chowk, Dabwali Road, Sirsa, distt. Sirsa through Dr.Ashok Bishnoi.
- The New India Assurance Co. Ltd. through its Divisional Manager, Sirsa distt. Sirsa.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH.S.B.LOHIA………………. ……………PRESIDENT.
SHRI RANBIR SINGH PANGHAL ……… ..MEMBER.
Present: Sh.JBL Garg, Advocate for the complainant.
Sh.A.K.Gupta, , Advocate for the opposite parties no.1&2.
Sh.A.S.Kalra, Advocate for opposite party no.3.
ORDER
In brief, case of the complainant is that complainant having fracture in his right hand, visited the op no.1 on 27.3.2013 at about 5.30 p.m.. Op no.1 after examination suggested for a surgical operation, but the complainant and his family members insisted for plaster. Upon this, op no.1misrepresented the complainant and his family and as such, under the compelling circumstances, complainant and his family members became ready for operation. It was assured that after operation, the said fractured arm of the complainant will become normal within 15-20 days and after one month, complainant will be able to work as normal including the heavy work. On 28.3.2013, op no.1 operated the complainant and inserted a rod in the fractured arm. After the operation, there was a severe pain and as such, fractured arm was x-rayed by the ops and it came to the knowledge of the complainant that after surgical operation, fractured bone has not been affixed properly. X-ray has been kept by the op-doctor. There was a gap between the fractured bone. Besides it, huge swelling appeared and the complainant was not able to feel sensation in the fractured arm. Upon this, op disclosed that the gap in the fractured bone will be covered with the use of medicines and swelling will be disappeared within 2 days. Complainant again felt severe pain in the night hours, but compounder of the doctor did not call the doctor and administered an injection. On the next day, without observing that the complainant is in trouble, op doctor discharged him from the hospital and charged Rs.60,000/-. It was advised to visit the hospital after 10-15 days for removing the stitches. But, complainant having 103 degree fever visited the hospital third day. The respondent gave him an injection and advised to take pain killers stating that pain will reduce day by day, but, there was no effect of medicines. The fractured arm started swinging from the place of fracture. Op-doctor advised sole clutch and on the advise of op-doctor complainant purchased a sole clutch and op wore the same on the fractured arm, but there was no improvement. In these circumstances, complainant and his family consulted Dr.Mahinder Goyal and after x-ray of fractured arm, Dr.Mahinder Goyal disclosed that the operation conducted by the op was totally wrong and applying of rod in the arm is 15 years old method in medical science. It is further disclosed by said doctor that in place of rod, plates should have been fixed. Upon that, complainant again visited op-doctor who assured that after few days, pain and swelling will disappear. When the condition of the complainant did not improve, he got medically checked-up from Dr.Sanjeev Gilhotra of Civil hospital, Abohar. Thereafter, complainant visited several doctors i.e. Rinwa hospital, Ganganagar; Dr.Virender Wadhwa of Sh.Prananth Parnami Accident care Hospital, Mukatsar, AIIMS, Delhi or Bikaner, Dr.Vedika of Shah Satnam ji Hospital; Dr.Nirania, Dr.Mohit Aggarwal of Civil hospital, Ganganagar, Dr.B.L.Khajotia, Unit Head of Bikaner Ortho hospital, Dr.M.S.Dhillon and Dr.Davinder of PGI hospital Chandigarh,Doctor of Plastic Surgery Ward, PGI, Dr.Dushyant and Dr.Bedi of Sector 16 hospital, Chandigarh; Dr.Sanjay Parkash of Agra, Dr.Bedi, Dr.Kapish Goyal of Chandigarh. All the above doctors after digital x-ray declared that there was no need for operation for this fracture and that only plaster was sufficient. It was advised for bone grafting with the expenses of approximately Rs.1.50 lacs. In the last, on 7.11.2013, complainant visited to General hospital, Sector-16, Chandigarh where he was operated on 11.11.2013 and bone grafting
was done and fracture was fixed with locking plating. Complainant remained admitted in the hospital from 7.11.2013 to 15.11.2013. As advised by the doctor, complainant was again admitted in the hospital on 27.2.2014 and second operation was conducted on 28.2.2014. Complainant remained admitted upto 3.3.2014. On 25.3.2014, he was advised nerve stimulation and to take neuropathy. Complainant again visited Govt. hospital, Chandigarh after Neuropathy on 3.6.2014 where he was advised for third operation.
2. It is further alleged that in this manner, due to wrong operation, complainant has suffered unnecessary pain of surgical operation with lot of harassment in visiting various doctors at the present places, which is a result of medical negligence on the part of ops. It is also alleged that now the complainant has become a permanent disable person and in future he has not earned even a single pie by doing his work of goldsmith. An amount of Rs.2,10,000/- for the treatments taken from different places has occurred and required at least Rs.80,000/- for third surgical operation. Complainant also made complaints against the ops to the Civil Surgeon, Sirsa, Hon’ble Chief Minister, Haryana, Hon’ble Governor, Haryana and Hon’ble Health Minister and Secretary Haryana Medical Council for taking action against the ops. It is alleged that complainant was directed to attend the office of Medical Superintendent General hospital, Sirsa on 8.1.2014, but the letter was received by the complainant on 9.1.2014. Hence this complaint seeking the reliefs as detailed in prayer clause.
3. On notice, Ops appeared and contested the case by filing their written versions. As per the version of ops no.1 and 2, there is no deficiency in treating the complainant. The healing of the injuries depends upon many factors including the patient’s physical response to the medicines, body resistant, following directions of medical advice etc. etc. The patient was advised for inter-locking nails for fixing the fracture which is the most acceptable and recognized line of treatment for such type of fracture and after conducting necessary tests, the patient was successfully operated and was discharged on 30.3.2013 with a follow up advise and he was also advised to take medicines and to take necessary precautions i.e. not to lift the weight for four months. It is also replied that complainant has moved applications to the Chief Medical Officer, General hospital, Sirsa with the similar complaints. The Op has submitted the written reply to the Civil Surgeon, Sirsa and Civil Surgeon, Sirsa got conducted an enquiry through a Board of Doctors investigated the complaint in August 2014 and it was held that the treatment of complainant had been done according to accepted norms and the complaint was found false and baseless. The stitches were removed after 10 days and PVC arms brake was given for the support with further advise to follow up the precautions. In view of the injury and the fracture, the best possible treatment was the surgery, which is the most recognized procedure in the case of such type injury. As such, there is no deficiency in service on the part of ops. The remaining allegations of the complaint have been denied.
4. Op no.3, who is insurance company replied that the allegations leveled against op-doctor are false, frivolous and are not based upon the report of expert committee and his case is based upon the presumptions which are not applicable in the eyes of law and his complaint deserves dismissal. As the treatment given by the op doctor was correct and there was no deficiency, so the insurance company is not liable to compensate the complainant in any manner.
5. By way of evidence, complainant produced his affidavit Ex.C1, affidavit of Ms.Geeta Rani w/o complainant Ex.C2, affidavits Ex.C3 and Ex.C4 of Sh.Daya Nand Verma and Sh.Gobind Dass, Uncle-in-law of complainant, affidavits Ex.C5 and Ex.C6 of Sh.Pawan Kumar and Sh.Mahinder Pal, brother-in-law of complainant, Ex.C7 to Ex.C14-medical slips of complainant treatment, Ex.C15 to Ex.C18-photographs, Ex.C19 to Ex.C22-x-ray films, Ex.C23 to Ex.C43-copies of treatment prescriptions of various doctors, Ex.C44 to Ex.C54-copies of various medical bills and receipts, Ex.C55-prescription of medicine, Ex.C56 to Ex.C58-copies of various complaints, Ex.C59-postal receipt, Ex.C60-copy of complaint to Medical Council, Ex.C61-letter dt. 22.11.2013; Ex.C62-notice to op no.2, Ex.C63-courier receipt; Ex.C64-letter to op no.1 by complainant, Ex.C65 to Ex.76-copies of various complaints and postal receipts and Ex.C77 to Ex.C79-copies of certificates issued by the hospitals
6. Whereas, the Ops produced affidavit of op no.1 Ex.R1, copy of letter dt. 15.7.2014 Ex.R2, report of medical board dt. 13.8,.2014 Ex.R3, copy of indoor file of complainant in op hospital Ex.R4, copy of letter dt. 18.9.2014 Ex.R5, copy of letter dt. 19.8.2014 Ex.R6, again copy of report of medical board Ex.R7, enquiry proceedings dt. 24.7.2014 Ex.R8, copy of insurance policy Ex.R9, affidavit of Divisional Manager, New India Assurance Company Ex.R10 and again copy of policy Ex.R11.
7. We have heard learned counsel for the parties and have gone through the record carefully.
8. Surgical operation conducted by the op no.1 in the hospital of op no.2 is an admitted fact. As per the version of the complainant, it is a case of gross medical negligence on the part of op no.1 for which complainant is suffering with physical as well as monetary losses till today. Ld. counsel for the complainant argued that in the x-ray film Ex.C19, there is a gap between the bone fracture. He further argued that due to negligence of the op-doctor, complainant could not cure as advised by op and under the compelling circumstances, he visited various doctors as detailed in the complaint itself for medical advise and treatment. The hardship being suffering by the complainant and the compelling circumstances of treatment by the op-doctor negligently and treatment for various other hospitals are well proved on record through affidavits of complainant and his relatives Ex.C1 to Ex.C6. The treatment record of Govt. Multi Speciality hospital, Sector 16, Chandigarh is also on record Ex.C7 to Ex.C14, which reflected the wrong treatment given by the op-doctor. The factum of treatment from various doctors is also established on record through various documents Ex.C25 to Ex.C43. He further argued that enquiry conducted by the Civil Surgeon, Sirsa has no force because notice given to the complainant for enquiry was received by the complainant after date of enquiry and the enquiry conducted in this manner is an exparte enquiry, which is not binding upon the complainant. He further argued that deficiency in treatment and negligence of the op-doctor in performing operation is proved on the record. He further argued that only due to negligence of the op-doctor, complainant got conducted second operation on 11.11.2013 for bone grafting and locking plating. Another operation upon the complainant has been conducted on 28.2.2014 and he remained admitted in the hospital from 27.2.2014 to 3.3.2014. The doctors of the hospital at Chandigarh also advised him for one another operation. Nerves stimulation and neuropathy is being taken by the complainant by paying huge expenses. Ld. counsel further pointed out that in this way the complainant became disable to earn even a single penny and on the other hand, he spent an amount of Rs.2,10,000/- till date only due to negligence of the op-doctor at the time of performing first operation at his hospital. Ld. counsel argued that complainant is entitled for the relief sought for by way of present complaint i.e. Rs.60,000/- charged by the op-doctor; Rs.2,10,000/- expenses incurred by the complainant in order to take further treatment; Rs.80,000/- on account of one more operation advised by the doctor; Rs.12 lacs on account of permanent disability, pain and suffering etc. alongwith cost of proceeding Rs.50,000/-.
9. On the other hand, ld.counsel for the ops nos.1&2 jointly argued in support of their versions. It is argued that there is no negligence on the part of the op-doctor in conducting the operation of the complainant. The procedure of operation adopted by the op-doctor is most acceptable and recognized line of treatment for such type of fracture. Both the counsels further argued that there is no record on the file to prove the negligence on the part of the op-doctor. They further argued that recovery of the patient in such cases depends upon many factors including the patient’s physical response to the medicines, body resistance and following the directions of medical advice. Both of them further argued that complainant had moved applications to the CMO, general hospital, Sirsa with the similar complaints to which the ops submitted their written reply and the civil surgeon after making detailed enquiry through a Board of Doctors in August, 2014 declared that the treatment of the complainant had been done according to accepted norms and the complaint was found false and baseless. Ld. counsel further argued that in case the complainant has not adhered to the specific directions of the doctor then there can be a delayed union, but that cannot be attributed to any negligence or wrong treatment. Charging of Rs.60,000/- has also been denied by the ops. Ld. counsel further argued that there is no findings of various doctors of various hospital on record as alleged by the complainant. Ld. counsel for the op no.3 further argued that allegations leveled by the complainant are not based upon the report of expert committee and are mainly on presumptions, which cannot be treated as deficiency and negligence on the part of the op-doctor. He further argued that op no.3 is not liable to pay any compensation.
10. After hearing both the parties as discussed above, we are of the considered view that conducting of operation by the op-doctor by applying a rod is admitted on record. It is also proved on record that two further operations upon the complainant have been conducted by the hospital at Chandigarh. In our view, if there was any recovery after the first operation conducted by the op-doctor, then there was no need for the second and third operation in some other hospital. If all the history of fracture, treatment from various hospitals including the operation by op no.1 and reports of Medical Board are taken together, it is proved on record that the complainant is still suffering from his disease and is paying huge amount in order to gain recovery. In our view, considering the all history of case and treatment, total negligence for not recovery of the complainant cannot be attributed to the complainant himself on the ground of not following the medical advice etc. as replied by the ops. In our view, the op-doctor although a qualified MS Orthopedic, is also partially liable for the same.
11. Now, coming to quantum of compensation , we are of the confirmed view that it will be justified if compensation of an amount of Rs. 4 lacs is awarded to the complainant for his suffering as detailed and discussed above. Accordingly, all the three ops are hereby directed to pay Rs.4 lacs to the complainant jointly and severally within a period of one month from today, failing which the complainant would be entitled for the relief of interest @ 9% per annum on the awarded amount from today till the date of payment. Complainant is also awarded an amount of Rs.2000/- as litigation expenses to be paid by the ops jointly and severally. Copy of the order be supplied to the parties free of cost and file be consigned to record.
Announced in open Forum. President,
Dated: 2.8.2016 Member. District Consumer Disputes
Redressal Forum, Sirsa.
