BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 205 of 2017
Date of Institution : 16.8.2017
Date of Decision : 19.03.2019
Amar Singh, aged 32 years son of Shri Madan Lal, resident of village Arnianwali, Tehsil and District Sirsa.
……Complainant.
Versus.
1- Dr. Dipesh Talwar, M.B.B.S. M.D., Talwar Hospital, Near Railway Bridge, Hisar Road, Sirsa, Tehsil and District Sirsa.
2- Dr. M.M. Talwar, M.B.B.S. M.D. D.T.C.D., Proprietor Talwar Hospital, Near Railway Bridge, Hisar Road, Sirsa, Tehsil and District Sirsa.
3- United India Insurance Co. Ltd., through its Divisional Manager at Sirsa. (insurer of opposite parties vide insurance policy no.0605002716P107042830 for the period w.e.f. 25.8.2016 to 24.8.2017) (impleaded as party as per order of the Forum).
..…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA……………… PRESIDENT
SHRI ISSAM SINGH SAGWAL ……MEMBER
MRS. SUKHDEEP KAUR…………..MEMBER
Present: Sh. Rakesh Pareek, Advocate for the complainant.
Sh. J.D. Garg, Advocate for opposite parties No.1 & 2.
Sh. Aashish Singla, Advocate for opposite party no.3.
ORDER
In brief, the case of complainant is that complainant is an iron-smith and manufacturers iron window and door frames etc. That on 1.6.2017, the complainant was doing the iron work at Plot No.30, HUDA, Sirsa and was grinding some iron material with electric grinder, but all of a sudden accidently, the grinder hit with the left hand of the complainant and caused a severe cut in the left hand forearm of the complainant. The complainant was immediately brought at the hospital of ops no.1 and 2 where the op no.1 examined the complainant and got admitted the complainant in their hospital and applied stitches to the wound. After two days, the complainant was discharged from the hospital and he was prescribed medicines for three more days and the ops charged a sum of Rs.20,000/- from the complainant for said treatment. However, the complainant continued suffering severe pain in his wounded hand and after few days, the said injured hand of the complainant started turning yellowish and the complainant could not experience any sensation in the affected part of injured arm. The complainant on noticing the same, reported the same to op no.1 but he gave false assurance that it will become normal in few days, but the condition of said injured arm became bad to worst and affected part of said injured arm started shrinking. Then the complainant immediately rushed to General Hospital, Sirsa on 6.6.2017 and got examined the said injured arm, but the doctor of General Hospital, Sirsa while sensing something serious, referred the complainant to Agroha Medical Hospital and College. However, the complainant alongwith his family members visited Santokba Durlabhji Memorial Hospital cum Medical Research Institute, Jaipur on 7.6.2017 and got examined the injury. The doctor of said Institute disclosed the fact that earlier treatment given to the complainant was not proper because the nerves which were cut in the said hospital could not be joined and that the doctor who applied stitches on the said wound was not having requisite qualification and experience for dealing with such type of wound. The doctor further stated that now the said injured arm of complainant will have to be re-operated for connecting the nerves and that one nerve of the said injured arm has already become dead, which requires replacement and such nerve will be taken from the left leg of the complainant. It is further averred that under such emergent situation, the complainant underwent surgical operation at the above Institute of Jaipur and he was discharged from the hospital on 8.6.2017 The complainant is still under treatment of above Institute. He has incurred a sum of Rs.one lac on his surgical operation, fee of doctors, medicines etc. at Jaipur and he still requires another sum of Rs.50,000/ for his follow-up treatment. The complainant has been told to take a rest for six months. So, the complainant will also suffer a recurring loss of income of Rs.25,000/ per month for a period of six months. It is further averred that the complainant has now come to know that op no.1 was not at all competent, qualified and experienced to deal with such wound and thereby he played with the life of the complainant only with a view to extract money from the complainant under the shadow of their medical profession. The op no.2 being the sole proprietor and incharge of hospital is also directly and vicariously liable and responsible for the day to day activities of the op no.1 and to indemnify the complainant. It is further averred that due to the aforesaid gross negligent act and conduct of ops, the complainant has undergone a very painful and traumatic treatment and he has been burdened with unnecessary medical expenses of Rs.one lace coupled with unnecessary harassment and hardship etc. That the complainant approached the ops and requested them to make good the losses suffered by him and also to indemnify him for damaging his injured arm, but the ops did not pay any heed to the same. Ultimately, complainant got served a legal notice upon ops on 7.7.2017 and the ops got replied the same vide reply dated 20.7.2017. In this reply, the ops avoided to answer the question raised by complainant against op about his being a qualified doctor to deal with such patient, which is quite apparent from the bare perusal of said reply given by ops. It has been further averred that in the legal notice dated 07.07.2017, due to some inadvertence, it has been written that the complainant had suffered injury on his right hand whereas the injuries were on left hand and the ops in their reply have not denied the factum of treatment given to the complainant for his injured arm and even the complainant has intimated this fact to the ops vide letter dated 14.8.2017. This way, the Ops are deficient in providing service to the complainant. Hence, this complaint.
2. On notice, opposite parties no.1 and 2 appeared and filed written statement taking certain preliminary objections regarding maintainability; cause of action; concealment of true and material facts. On merits, it is submitted that it is correct that the complainant was brought in the hospital of the ops in a very serious condition with profuse active bleeding and excruciating pain and he was profusely sweating having pallor. The ops after examining the wound of the complainant stitched the wound properly and he was admitted in the ward for further care and he was discharged on 2.6.2017 around 7 PM against medical advise and Rs.7000/- was charged from him. It is incorrect that he was charged Rs.20,000/-. The hospital receipt worth Rs.7000/- has been attached with the complaint by complainant himself. At the time of his discharge, the complainant’s condition was satisfactory and he was quite OK. No sign or symptoms of Neuro vascular injury were found as alleged. The complainant left the hospital on his own responsibility on 2.6.2017 and was advised for follow up treatment and he came once after discharge on third morning, when dressing was changed of wound. Even on third morning, he did not complain of any weakness numbness or pallor. On examination also, there was no evidence of any neuro vascular compromise. He was advised to come for follow up daily. He did not turn up for follow up. The assertion of complainant that his condition became worst and his hand turning yellowish is false and incorrect. It is further submitted that complainant never approached to the ops after his visit on third morning. It is further submitted that the treatment of complainant from Durlabh Ji Memorial Hospital Jaipur on 7.6.2017 shows that his arm was repaired by them of ulnar artery and nerve but they did not find any symptoms or yellowness/ blackening in movement of hand. The record of said hospital does not reveal that the patient was wrongly treated by the ops. In the book “Green Operative Hand Surgery” it is mentioned that if any person having injury, the urgent repair of nerve cannot be entertained. There is a risk of sepsis from dead or devitalized tissue or from unrecognized small fragments of foreign material. The extent of intraneural longitudinal damage cannot be easily ascertained in a freshly exposed wound. Sepsis greatly compounds the problem by causing even more longitudinal destruction within the nerve. In this book, it is further written that unfortunately, the sign of acute nerve injury have to be sought at the time, when the patient may be least able to cooperate in an examination, that is soon after wounding when there is likely to be distress and when, the general condition of the patient may be affected by loss of blood and other injuries. Nerve conduction tests are also not useful because of fallacious results. Examination frequently has to be done in the often unfavorable surroundings of an emergency department. The finding of these investigations must be interpreted with very great care in the first 10 to 14 days after transaction of a nerve. In this book, it is also mentioned that lifesaving or limb saving measures come first. The doctor has a duty to assess the patient’s ability to undergo a prolong intervention and the patient was treated with proper care and caution and he was treated as per the procedure but he did not turn up for follow up treatment and as per the complaint after visit from the hospital of ops on 3.6.2017, he approached the doctors of GH Sirsa on 6.6.2017 and during these four days, he did not take any treatment from any qualified doctor and possibility of tempering of wound by a quack cannot be ruled out. It is further submitted that ops are well qualified doctors and are experts in their fields. They have not been held guilty or found negligent by any court of law in India till date. Remaining contents of complaint are also denied and prayer for dismissal of complaint made.
3. On being impleaded, United India Insurance Company Ltd. op no.3 in its reply has taken preliminary objections such as neither the complaint is maintainable nor the complainant has locus standi to file the same and even he does not fall within the definition of consumer and the present complaint has been filed by twisting and concocting false and baseless story. It has been submitted that op no.1 is a well qualified and experienced medical practitioner. The complainant is not entitled for any compensation for follow up future treatment and he has claimed an exaggerated amount without any basis for which the Ops are not at all liable to pay. Other contentions have been controverted and prayer for dismissal of the complaint has been made.
4. The parties then led their respective evidence by way of affidavits and documents. The complainant has tendered his affidavit Ex.C1 besides tendering documents Ex.C2 to Ex.C19. On the other hand, the Op Nos. 1 & 2 have tendered affidavit of Dr.M.MTalwar- OP No.2 as Ex.R1, affidavit of OP No.1 as Ex.R2 and documents Ex.R3 and Ex.R4 whereas the Op No.3 has tendered affidavit of K.R.Jain Senior Divisional Manager Ex.RW5/A and document Ex.R5
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. Learned counsel for the complainant has contended that it is proved case of the complainant that on 01.06.2017 he was doing the iron work at plot No.30, HUDA, Sirsa and was grinding some iron material with electric grinder, but all of a sudden, accidentally the grinder hit with the left hand of the complainant and caused a severe cut in the left hand forearm of the complainant and he was taken to the hospital of Op No.2 where Dr.Dipesh Talwar OP No.1 examined him and got admitted in the hospital and applied stitches to the wound. After two days, the complainant was discharged from the hospital and Rs.20,000/- had been charged from the complainant for the said treatment, but however, the complainant continued experienced severe pain in his wounded hand and after few days, the said injured hand of the complainant started turning yellowish and the complainant could not experience any sensation in the affected part of the injured arm. On 06.06.2017, he rushed to General Hospital Sirsa but the doctor who examined the complainant had referred him to Agroha Medical Hospital and College, but however, his family members brought him to Santokba Durlabhji Memorial Hospital cum Medical Research Institute, Jaipur on 07.06.2017 where he was advised that injured arm of the complainant will have to be re-operated for connecting the nerves and that one nerve of the said injured arm has already become dead, which requirement replacement and such nerve will be taken from the left leg of the complainant. The complainant went surgical operation in the said Institute at Jaipur and he was discharged from the hospital on 08.06.2017. He has spent Rs.1 lac on his surgical operation, Thereafter, the complainant came to know that the Op No.1 was not at all competent, qualified and experienced to deal with such wound and thereby Op No.1 had played with the life of the complainant only with a view to extract money from the complainant. The evidence of the complainant proves that Op No.1 was not competent and qualified rather he was negligent by giving treatment to the complainant. Learned counsel for the complainant has relied upon judgment reported as 2017 4 R.C.R Civil 324 Dr.Sathy M.Pillay and Anr. Vs. S.Sharma & Ors in which it was observed by Hon’ble Supreme Court that A young healthy woman of 25 years had died in the hospital without any ailment in the course of a minor surgery - The doctor was not specialized in the administration of anesthesia and was held negligent - Compensation of Rs.6 lakhs awarded by Consumer Court.
7. On the other hand learned counsel for Op Nos. 1 & 2 has strongly contended that the present complaint is not maintainable and complainant has got no cause of action to file the present complaint. He has concealed the true and material facts from this Forum. Admittedly, the complainant was brought in the hospital of Op No.1 in a very serious condition with profuse active bleeding and excruciating pain and he was profusely sweating having pallor. The respondents after examining the complainant stitched the wound properly and he was admitted in the ward for further care and he was discharged on 02.06.2017 against medical advice. The respondents had charged Rs.7,000/- from him. No sign or symptoms of Neuro vascular injury were found as alleged in the complaint. He came once after discharge on third morning when dressing of wound was changed. The treatment of the complainant from Durlabh Ji Memorial Hospital, Jaipur on dated 07.06.2017 shows that his arm was repaired by them of ulnar artery and nerve but they did not find any symptoms or yellowlessness/blacking in movement of hand. There is no record of the hospital that the patient was wrongly treated by the respondents.
8. It has also been contended that in the book “Green Operative Hand Surgery” it has been mentioned that if any person having injury, the urgent repair of nerve cannot be entertained. There is a risk of sepsis from dead or devitalized tissue or from unrecognized small fragments of foreign material. It is further mentioned in the book that unfortunately, the sign of acute nerve injury have to be sought at the time when the patient may be least able to cooperate in an examination, that is soon after wounding, when there is likely to be distress and when the general condition of the patient may be affected by loss of blood and other injuries. Nerve conduction tests are also not useful because of fallacious results. In this book, it has also been mentioned that the lifesaving or limb saving measures come first. The patient approached the doctor of Civil Hospital, Sirsa on 06.06.2017 and during four days, he did not take any treatment from any qualified doctor and possibility of tempering of wound by a quack cannot be ruled out. It has also been contended that the complainant has leveled baseless allegations against the respondents only to fetch money. It has also been contended that the complainant has failed to prove any negligence of the OP Nos. 1 & 2 or any mishandling of the case of the complainant. Learned counsel for the OP Nos. 1 & 2 has relied upon the recent judgment of the Hon’ble Supreme of India passed in Civil Appeal No.2024 of 2019 arising out of SLP c No.32721/2017 titled as Vinod Jain Vs. Santokbha Durlabhji Memorial Hospital & Anr
9. Learned counsel for the Op No.3 has contended that the present complaint is not maintainable against Op No.3 as the same has been filed on false and fabricated grounds. The respondent No.1 is a well qualified and experienced medical practitioner. The allegations leveled against Op Nos. 1 & 2 are baseless and self-concocted. The complainant is not entitled for any compensation as his complaint is liable to be dismissed.
10. We have considered the rival contentions of learned counsel for the parties and have gone through the record as well as judgments of the Hon’ble Supreme Court of India relied upon by learned counsel for the complainant as well as learned counsel for the Op Nos. 1 & 2. That it is an admitted fact between the parties that the complainant on 01.06.2017 was doing the iron work where accidently the grinder hit with left hand of the complainant and caused a severe cut in the left hand forearm and he was taken to the hospital of Op Nos. 1 & 2 where Dr.Dipesh Talwar attended the complainant and got him admitted in their hospital. He applied stitches to the wound and wad admitted in the hospital for follow up treatment and thereafter discharged the complainant on 02.06.2017. On 03.06.2017 the complainant came to hospital for change of dressing of the wound and thereafter, he did not come to the hospital of Op Nos. 1 & 2 for any follow up treatment.
11. As per allegation of the complainant, he was not felling well and he approached the Civil Hospital, Sirsa on 06.06.2017 where the doctor advised him to approach Agroha Medical Hospital and College, but however, his family members took him to Santokba Durlabhji Memorial Hospital cum Medical Research Institute, Jaipur on 07.06.2017, where he was admitted and was re-operated for the wound. As per allegation of the complainant, the doctors were of the opinion that one of the nerve has become dead, as a result of which they have taken one nerve from his leg and same was replaced with the dead nerve of his forearm.
12. The main allegations of the complainant against the Op Nos. 1 & 2 are that after the surgery at Jaipur they he came to know that Op No.1, who attended the complainant after injury on 01.06.2017, was not competent, qualified and skilled person to treat the complainant and one of the nerve was cut and same become dead due to negligence of the Op No.1, for which he was re-operated on his forearm. The perusal of the complaint reveals that the complainant while filing the present complaint in paragraph No.2 of the complaint has categorically mentioned that the grinder hit right hand of the complainant and caused severe cut in the right hand forearm of the complainant. Though there are some overwriting over the word right and the same has been made as left but it does not bear the signature of the complainant in order to confirm his overwriting on the right hand. The perusal of the legal notice (Ex.C9) which was allegedly issued by his counsel on the instructions of the complainant himself also find mentioned that the grinder hit with the right hand of the complainant and caused severe cut in the forearm of the client. The perusal of the reply to legal notice reveals that it was specifically mentioned in the reply that all the allegations leveled in the legal notice of the complainant was duly rebutted by the learned counsel for the Op Nos.1 & 2. Ex.C13 is the copy of another legal notice, which was sent by the learned counsel for the complainant, wherein it has categorically been admitted that the grinder hit on the left hand forearm though it was written as right hand. This notice was issued to the Ops on 14.08.2017 whereas the present complaint was filed on 07.11.2017,but however, the contents of the legal notice were reproduced as the grinder hit on his right forearm.
13. The perusal of discharge summary (Ex.R4) issued by OP No.2 reveals patient came with C/C of self inflicted wound because of electric cutter 15-20 minutes before admission. Patient was seen & stitching was done and haemostasis was achieved. No e/o neuro vascular deficit was present at that time and patient was able to move all the fingers & thumb. No active bleeding was seen and patient was discharged on 02.06.2017 on relatives and patient request. Sh.Subhash Kumar, brother of the complainant has written on the bed head ticket dated 02.06.2017 that they are satisfied with the treatment and patient the patient was discharged on their request. He has also executed the consent letter for the surgery, Anesthesia and stitching of the wound on 01.06.2017 by putting his signature on the consent letter. The perusal of the discharge summary Ex.C2 also reveals that the complainant was brought to Santokba Durlabhji Memorial Hospital cum Medical Research Institute, Jaipur on 07.06.2017 and as per discharge summary, the cut injury on Left distal Forearm 5 days back sutured in Sirsa, Hayana.
O/E Lt. Hand wrist flexion FW- 0/5 FDS L/F Absent Rest N
FDP L/F Absent
FPL Present
Adductor pollicis & Absent sensation absent in Ulner nerve territory limbrical 3rd & 4th intrusion–absent
Ulnar Nerve injury – FCU & partial FDS & FDP
The discharge summary Ex.C2 further reveals that the doctor has not opined that doctor who attended the complainant previously at Sirsa was negligent while treating the complainant from 01.06.2017 to 02.06.2017. Nor he has given any opinion that the wound was not properly stitched by the doctor concerned who had attended the patient at Sirsa for first time after the injury. This discharge summary further reveals that the attended doctor has not given any opinion while treating the patient that the doctor who had attended the patient at Sirsa had not followed the medical norms or the nerve was cut due to negligent act of the doctor-OP No.1. The perusal of the reference slip issued by the Government Hospital, Sirsa also reveals that they referred the patient to Agroha Medical College & Institute but they did not give any opinion that OP - doctor was negligent in his duties while treating the complainant.
14. The perusal of the complaint as well as evidence of the complainant reveal that the complainant has not explained under whose treatment, he remained during 03.06.2017 to 05.06.2017 as he had approached the Civil Hospital, Sirsa only on 06.06.2017 from where he was referred to Agroha Medical College and Institute. So, it reflects the lapses on the part of the complainant either he did not follow up the treatment given by the Op Nos. 1 & 2 or he got treatment from some other qualified or un-qualified doctor during 03.06.2017 to 05.06.2017. In the book “Green Operative Hand Surgery” which has been relied upon by learned counsel for the Op Nos. 1 & 2 it has been mentioned that if any person having injury, the urgent repair of nerve cannot be entertained. There is a risk of sepsis from dead or devitalized tissue or from unrecognized small fragments of foreign material
15. Though learned counsel for the complainant has relied upon the judgment of Hon’ble Supreme Court, but however, the complainant cannot take help of the judgment of Honble Supreme Court as the facts of the reported judgment are quite distinguished from the facts of the present case rather we find force from the recent judgment of the Honble Supreme Court passed in Vinod Jain Vs. Santokba Durlabhji Memorial Hospital & Anr.(supra) in which it was observed by the Honble Supreme Court of India that the Negligence has been defined in the Haslbury’s laws of England 4th Edn Vol 26 P. 17-18 and extracted in Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors. as under
22.Negigence- Duties owned to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such as 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; as duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.
It has been further observed that A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with the practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam Vs. Friern Hospital Management Committee).
It has been further observed that in case of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and if would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A situation, thus, cannot be countenanced, which could be a disservice to the community at large, by making doctors think more of their own safety than of the good of their patients.
It was also observed by Hon’ble Supreme Court of India that it is our bounden duty and obligation of the Civil Society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension
16. So, it appears from the evidence on record that the Op No.1 had attended and treated the complainant with his competence, skill and experience to the best of his knowledge and it cannot be presumed that he treated the complainant in any negligent manner. Furthermore, the complainant has failed to prove on record that the Op No.1 was negligent in treating and stitching the wound of the complainant during his stay at their hospital between 01.06.2017 to 02.06.2017
17. In view of the above discussion, we are of the view that the complainant has failed to prove his case by leading cogent evidence against the Ops therefore, the present compliant stands dismissed, being devoid of any merit, with no order as to costs A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President, Dated:19.03.2019
District Consumer Disputes
Redressal Forum, Sirsa
Member Member
DCDRF, Sirsa DCDRF, Sirsa
