BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.422 of 2014

Date of Instt. 28.11.2014

Date of Decision :13.07.2015

Kamaljit Kaur wife of Bhulla Singh through her husband Bhulla Singh son of Bachan Singh R/o Village Chandi Dass, Tehsil Dasuya District Hoshiarpur.

..........Complainant Versus

1. Dr.Ajaydeep Singh, Pasricha Hospital and Maternity Home, 221-Adarsh Nagar, Mahavir Marg, Jalandhar.

2. Pasricha Hospital and Maternity Home through its Managing Director/Owner, 221, Adarsh Nagar, Mahavir Marg, Jalandhar.

3. United India Insurance Company Ltd, 54, Janpath Connaught Place, New Delhi through its Authorized Officer.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act,1986.

Before: S. Jaspal Singh Bhatia (President)

Sh.Parminder Sharma (Member)

Present: Sh.KS Hundal Adv., counsel for complainant.

Sh.GPS Ramana Adv., counsel for OP No.1.

Sh.KL Dua Adv., counsel for OP No.2.

Opposite party No.3 exparte.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986, against the opposite parties on the averments that the present complaint is being filed by the complainant through her husband and she is not able to travel much because of her health and her husband Bhulla Singh is well conversant with the facts of the present complaint and is competent to file the present complaint on behalf of the complainant. The complainant approached the opposite party No.2 in connection with replacement of her right knee joint. On 19.3.2013 the complainant was admitted in the hospital for replacement of her right knee. On 20.3.2013 opposite party No.1 operated the complainant and replaced her right knee. At the time of operation opposite party No.1 did not take much care and precaution which is required from a professional person, while operating a person. Due to negligence of opposite party No.1 a serious infection developed in the wound, which was caused at the time of operation. The complainant was discharged by the opposite party on 26.3.2013, inspite of the fact that condition of the complainant was not stable and it was deteriorating day by day. The complainant was asked to come on 28.3.2013 for dressing of wounds. On 28.3.2013 condition of the complainant was very alarming and bad. Wounds of the complainant were dressed by opposite party on that day and even at that time the complainant was not told about the uncontrollable condition of the infection. The complainant was again asked to come on 30.3.2013 for dressing of wounds. The complainant was told that there is no problem and the wounds will heal within days. On 30.3.2013 the complainant was dressed but her condition was not stable and infection and her condition was out of control. On 30.3.2013 the complainant was told that condition of the patient is out of control and that there is no scope of recovery. The complainant was asked to take the patient to somewhere else. After this the husband of the complainant took her to Dayanand Medical College and Hospital, Ludhiana and she was admitted there on 31.3.2013. The complainant remain admitted in the DMC, Ludhiana and was discharged on 22.4.2013. At the time of treatment in Ludhiana the husband of complainant deposited Rs.96,121/- in installments as medical fee, medicines and other charges. The husband of the complainant spent Rs.290/- and Rs.710/- for ultra sound of some body parts of the complainant. The complainant was asked for regular check-ups after her discharge. The complainant visited DMC six times for check-ups and every time she spent Rs.400/- as fee. In addition to it the complainant spent about Rs.2500/- on medicines and miscellaneous expenses during the check-ups. The husband of the complainant spent Rs.20,000/- on the conveyance for carrying the patient to Ludhiana and his visits during admission of the complainant at Ludhiana. Rs.3450/- were spent by the complainant on blood screening charges and Nucleic Acid Testing of the complainant. In this way the husband of the complainant has to spent Rs.1,20,571/- at DMC Ludhiana. The opposite party charged Rs.1,40,000/- as operation fee and other expenses including medicines etc. The complainant spent Rs.6000/- on various tests in the hospital of opposite party No.2. The complainant spent Rs.750/- for injecting blood to her. Rs.10,000/- were spent by the complainant on conveyance from her village to Jalandhar, during treatment at Jalandhar. It is further mentioned that the complainant has no diabetic history and she is not a diabetic patient. On such like averment, the complainants have prayed for compensation and litigation expenses.

2. Upon notice, opposite parties No.1 and 3 appeared and filed their written replies. In its written reply, opposite party No.1 pleaded that patient was admitted at opposite party No.2, Pasricha Hospital for replacement of her right knee joint on 19.3.2013. The fumigated operation theatre was sealed till 4.00 PM of 20.3.2013. In view of the patient's pericardial effusion, Dr.Mahendra Marothi, senior cardiac anesthetist was specially called to administer epidural anesthesia to the patient. The right leg of the patient was scrubbed twice and shaved 30 minutes before the surgery. Disposable stockinet, loban, steridrape and waterproof disposable sheets were used for draping the patient. New disposable pulsative lavage was used and a total of 9 liters of saline was used to wash the knee. 750 gms each of cefuroxime was put in the bone cement implanted on the tibia and femur. All the operating instruments and sheets were autoclaved twice. New cautery lead, suction tube and surgical sponges were used. It would not be out of place to mention that since all the assistants were made to change gloves 4 times during the procedure, a total of 30 pairs of gloves were used. After the surgery the patient's wound was dressed by the opposite party No.1 on three occasions in the operation theatre itself. The wound was completely healthy and there was no discharge or any other sing of infection till the patient was discharged. It is further mentioned that every time the wound was dressed, notes were put on the patient's file which shows that the patient had not developed any infection till the date of her discharge. Patient recovered well post surgery and was discharged on 27.3.2013 in healthy condition with body temperature ranging within normal. Also the knee replacement performed on the patient was a successful surgery. Furthermore the patient was seen by Dr.Manoj Chaudhary, DM nephrology on 23.3.2013 and Dr.K.K.Pasricha MD Medicine on 25.3.2013. The notes put by both physicians on the file show that the patient was stable. Opposite party No.1 had performed the knee replacement surgery of the complainant in accordance with the set medical standards and the said knee replacement was successful. Before surgery patient was made fit in the following manner:-

Patient had been suffering from the following pre-existing multiple medical ailments which were:-

a) Diabetic with intermittent use of oral allopathic medications on the advice of local village doctor (possibly quack),

b) Chronic renal failure with elevation in the levels of urea @ 75 and creatinine @ 2.5 alongwith history of treatment for renal stones at Kidney Hospital, Jalandhar and never took active supervised treatment from any renal specialist for chronic renal failure,

c) History of unsupervised self administered steroid abuse of long duration with complication of cataract in both eyes due to steroids requiring lens replacement,

d) History of colitis with colonoscopy at Kidney Hospital showing lesion in the ascending colon and previous history of admission in Dayanand Medical College under DM gastroenterology, Obesity, Hypertension with intermittent use of unsupervised self administered anti-hypertensives, mild pericardial effusion on echo-cardiography, History of multiple joint pains with recurrent and intermittent fever treated by above said local doctor with analgesics anti-pyretics,

e) History of breathlessness on walking with generalized swelling of face and feet, documented anemia with hemoglobin level @9 gm, and severe arthrities in both knee joints giving rise to severe pain and severe difficulty in walking.

3. In view of the renal failure, anemia and breathlessness on walking of the patient, the opposite party had advised her to undergo at least one unit of blood transfusion before surgery. Accordingly the complainant brought one unit of blood from Alfa Blood Bank situated in the premises of Joshi Hospital and the same was administered slowly after administering injection avil and injection hydrocortisone. On completion of blood transfusion one injection of Lasix was administered. After a brief period of observation the patient was discharged in the evening on the same day at about 6.00 PM with the advise that the knee replacement be delayed for one week for the beneficial effects of blood transfusion to manifest. The actual room rent is Rs.2000/- per day but the complainant was charged only Rs.1000/- as room rent inclusive of nursing charges only and no other fee was charged. Patient had chronic renal failure with elevation of blood urea and S.Creatinine. Blood test was conducted on 10.3.2013 and it was found out that the level of blood urea in blood is at 61 (normal is between 13-45) and that of S.Creatinine is at 1.9 (normal in between in females is 0.6-1.4). Subsequently, the patient was readmitted in opposite party No.2, Pasricha Hospital vide admission record No.556 on 19.3.2013. On 19.3.2013 the patient's anemia, breathlessness and swelling of face and feet had remitted/resolved/ disappeared as per patient herself. On 19.3.2013 her blood was again tested in order to ascertain the level of blood urea and S.Creatinine. The level of blood urea was at 74 mg/dl and that of S.Creatinine was at 2.7 mg/dl. Thereafter on 19.3.2013 itself in view of the chronic renal failure of the patient, opposite party No.1 contacted Dr.Chahal who is the leading urologist of Jalandhar and also the owner of Kidney Hospital. Opposite party No.1 explained the case to Dr.Chahal and sought his opinion before proceeding with the surgery. It is submitted that the said Dr.Chahal advised in affirmative for the surgery and also advised that his nephrologist, Dr.Manoj Chaudhary be contacted for further advice. Accordingly, opposite party No.1 contacted the said Dr.Manoj Choudhary on the same day i.e 19.3.2013 and explained him the case in detail, thereby informing his about the high risk on account of anemia, renal failure, diabetes, obesity and long term steroid abuse. Considering all these factors Dr.Manoj Choudhary gave his go ahead for the surgery. However, the said Dr.Manoj Choudhary advised that in view of the renal failure no aminoglycosides should be given and the dose of vancomycin be administered at a rate reduced to half i.e 1 gm per day and dose of cefuroxime be administered at a reduce rate of 750 gms twice a day instead of 750 gms thrice a day. In the evening of 19.3.2013 itself, the operation theatre of Pasricha Hospital was fumigated and ultra-violet bulb was switched on. On 20.3.2013 patient's Color Doppler Echo Report was done at Kap Scan & Diagnostic Centre, Kalra Hospital, Kapurthala Chowk, Jalandhar. Thus patient was having multiple diseases for which above medical steps and consultations were taken for undergoing total knee replacement on 19.3.2013. In medical terms the patient is claiming that she developed a superficial skin infection of the operated knee wound, which spread to the blood causing septicemia. This is a false claim. Opposite party No.1 wants to enter the following evidence to prove this claim to be false. Medically, a superficial skin wound infection can not cause septicemia without causing septic arthritis (filling the knee joint with pus) of the knee joint first. The knee joint of the patient was aspirated by opposite party No.1 on 30.3.2013 by putting a needle in the joint and NO PUS or any other sign of infection was aspirated from the joint. Furthermore opposite party No.1 has made an inquiry with Dr.Pankaj Mahendera Orthopaedic Surgeon of DMC Ludhiana who treated the patient Dr.Pankaj Mahendra has confirmed to opposite party No.1 that on the night of 31.3.2013 when the patient was brought to DMC Ludhiana, he too put a needle inside the knee joint of the patient and found no PUS or infection inside the operated knee joint. Subsequently, the patient was admitted under a physician and not an orthopaedic surgeon in DMC Ludhiana. Furthermore, opposite party No.1 has learnt from Dr.Pankaj Mahendera, Orthopaedic Surgeon of DMC that during the entire stay of the patient in DMC, he has given treatment for superficial knee wound infection and No PUS was found inside the knee joint even when the knee joint was opened inside the operation theatre. Finally opposite party No.1 submits before the Forum the latest research paper in which 41,852 patients in the US who had chronic kidney (renal) disease and underwent knee replacement were assessed and the authors concluded that patient records of these 41,852 patients show that patients who have chronic kidney (renal) disease and other associated medical problems (which this patient had) who undergo knee replacement have higher risk of superficial wound site infection, 90 day hospital readmission and any time mortality (death) risk. The admission of this patient in DMC was due to the aggravation of these pre-existing associated medical problems. As shown by the research paper submitted above, the aggravation of these pre-existing medical problems requiring re-admission in the hospital within 90 days of knee replacement is a well documented world-wide accepted course of event. As the patient also developed a superficial wound infection (which too is well documented in the research paper), the patient has used this superficial wound infection to fabricate a false case against opposite party No.1 to illegally extract money from him. The Forum is being reminded again that all of these things happened after discharge from Pasricha Hospital, and the patient refused to get re-admitted in Pasricha Hospital at her own free will, despite the fact that opposite party No.1 advised the patient to get re-admitted. It denied other material averments of the complainant.

4. In its separate written reply, opposite party No.3 pleaded that there is no negligence on the part of the opposite parties No.1 and 2. Opposite party No.1 can not be held liable under any circumstances and as such it can not be held responsible in any manner.

5. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C88 and closed evidence.

6. On the other hand, learned counsel for the opposite parties No.1 has tendered affidavit Ex.OP1/A alongwith documents Ex.OP1 to Ex.OP8 and Ex.R2 and closed evidence. Further learned counsel for opposite party No.3 has tendered document Ex.OP/1 and closed evidence.

7. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted on behalf of the opposite party No.1.

8. In substance the allegations of the complainant are that she was admitted in opposite party No.2 hospital on 19.3.2013 and her right knee was replaced on 20.3.2013 by opposite party No.1 and she was discharged on 26.3.2013 but at that time her condition was not stable and she was asked to come on 28.3.2013 for dressing of the wounds. Further according to the complainant, she went on 28.3.2013 and wound of the complainant was dressed and she was again asked to come on 30.3.2013 and on 30.3.2013 her wound was again dressed and she was assured that there is no problem and wound would heal within days but actually her condition was not stable and her infection was out of control and as such her husband got her admitted in DMC, Ludhiana on 31.3.2013 and was discharged on 22.4.2013. Counsel for the complainant contended that opposite parties No.1 and 2 have not taken proper care and due to their negligence the wound was infected due to which the condition of the complainant deteriorated and she had to ultimately got admitted in DMC, Ludhiana for treatment. On the other hand, according to opposite party No.1, there was no medical negligence on their part and patient was discharged in stable condition but she was already having chronic kidney disease, diabetes and further was using steroid on the advice of some village quack and the steroid abuse caused toxicity. He further contended that it is well established according to medical literature that patient having kidney disease and has every chance of superficial surgical site infection. Counsel for the complainant contended that in the discharged card of DMC, it is mentioned that blood culture-negative, which means that there was no infection in the blood and as such no septicemia. He further contended that T test conducted by DMC was negative which is a gold standard test of medical science to prove septicemia and negative T test conducted by DMC proved beyond reasonable doubt that there was no septicemia or infection spreading through blood. He further contended that as per treatment record of DMC wound swap culture was also negative which means that no infection was found in the wound. He then contended that a patient having chronic kidney disease and undergoing knee replacement has higher risk of superficial wound site infection. He further contended that there is no reliable and expert evidence on record from the side of the complainant to prove that there was any medical negligence on part of the opposite parties. We have carefully considered the contentions advanced by learned counsels for both the parties. The law regarding medical negligence is well established in KUSUM SHARMA & ORS VS BATRA HOSPITAL & MEDICAL RESEARCH CENTER & ORS 1(2010) CPC 29 (SC), the Hon'ble Supreme Court has held as under:-

" This Court in a landmark judgment in Jacob Mathew v. state of Punjab & Another, III (2005) CCR 9 (SC)=VI (2005) SLT 1=122(2005) DLT 83 (SC)=III (2005) CPJ 9 (SC)=(2005) 6SCC. 1 while dealing with the case of negligence by professionals also gave illustration of legal profession. The Court observed as under:

"In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances.

A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.”

It is a matter of common knowledge that after happening of unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medial professionals."

Literature of para No.1 to 11

Negligence is the breech of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patient. The interest and welfare of the patients have to be paramount for the medical professionals.

9. Ex.OP1 is treatment record of the patient i.e complainant Kamaljit Kaur. From the report of blood urea and S.Creatinine which is in the treatment record it is evident that the complainant was suffering from renal problem as her S.Creatinine level was 2.7 against normal range of 0.6-1.5 and further her blood urea level was 74 against the normal range of 13-45. She was having various associated problems as is evident from discharge summary Ex.OP7 of DMC, Ludhiana. In the column of diagnosis type-2, DM, steroid abuse and toxicity and further acute CKD i.e Chronic Kidney Disease and anemic are mentioned. The medical literature which is on record clearly suggest that TKA heightens infection risk in patients with chronic renal disease. In the medical literature it is mentioned as under:-

"Patient in a joint replacement registry who had chronic renal disease and underwent total knee arthroplasty were more likely to have complications with the surgery in this study.

CRD (Chronic Renal Disease) patient undergoing TKA (Total knee arthroplasty) have more comorbiditis and a higher risk for superficial SSI(Surgical site infections), 90 days re-admission, and any time mortality. Alexander Miric, MD and colleagues wrote.

Miric and colleagues performed a retrospective analysis of date contained in a U.S.1 total joint replacement registry that covered seven regions of the country included patients who underwent primary TKA from 2005 to 2010. Of the 41,852 TKAs in the register, 6.4%(2686) involved patients with CRD. The patients' mean age was 67 years. Two-thirds of the patients were women. The median follow-up was 2.1 years.

The investigators found CRD patients were older, had poorer general health and a higher prevalence of comorbidities than patients without CRD. Compared to patients without CRD, patients with CRD also had a higher incidence of SSI at 0.9% vs.0.7%, of superficial SSI at 0.5% vs. 0.3% of deep vein thrombosis at 0.6% Vs. 0.4% of any time mortality at 4.7% vs. 2.4%, of 90 day mortality at 0.4% vs.02% and of 90 day re-admission at 10% vs.6.0%.

"This procedure can be performed relatively safely in this patient population, with early revision rates, morbidity rates, and mortality rates far below those previous reported". Miric and colleagues wrote. "However, one can not during and well beyond the preoperative period," they noted.- by Christian Ingram.

10. So the medical literature clearly suggest that patients undergoing knee replacement who are already having chronic renal disease have higher risk of superficial surgical site infection. Complainant in this case was not only suffering from renal disease but also abuse of steroid and was also suffering from diabetes, may be recently. So these associated problems from which the patient was suffering might have led to superficial surgical site infection. Further from the discharge summary of DMC it is evident that wound swab culture was negative. Her blood culture and troponin T tests were also negative. So simply on the ground that after knee replacement, she was having superficial surgical site infection, in the circumstances of the present case, in no way proves that opposite parties No.1 and 2 were guilty of medical negligence. After discharge on 26.3.2013 she went to opposite parties No.1 and 2 on 28.3.2013 and 30.3.2013 and her wound was dressed on both ocassions. Thereafter her husband took her to DMC on 31.3.2013. So it can not be said that there was any post operative negligence on the part of the opposite parties. It appears that in fact her pre-existing problems i.e renal disease, steroid abuse and toxicity and diabetes etc led to some post operative problems for which opposite parties No.1 and 2 can not be blamed.

11. In view of above discussion, we hold that complainant has not led any reliable evidence to prove any medical negligence on part of the opposite parties No.1 and 2. Consequently, the present complaint is dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jaspal Singh Bhatia

13.07.2015 Member President