Punjab

Faridkot

CC/18/154

Karanjit Kaur - Complainant(s)

Versus

Dr. Bikram Singla - Opp.Party(s)

Ashu Mittal

02 Dec 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

C.C. No. :                154 of 2018

Date of Institution:     24.09.2018

Date of Decision :      02.12.2019

 

Karamjit Kaur aged about 29 years w/o Harwinder Singh r/o Village Nangal, Tehsil and District  Faridkot.

...Complainant

Versus

 

1. Dr Bikram Singla c/o Bikram Joint and Trauma Centre, Opposite GGS Medical Hospital, Giani Zail Singh Market, Sadiq Road, Faridkot, District Faridkot.
2. United India Insurance Company Limited, Branch Office 080102, 16 M, Gole Market, Mahanagar, Lukhnow-226006(UP) through its authorized signatory.

                         ....Opposite parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh. Ajit Aggarwal, President,

Smt. Param Pal Kaur, Member.

 

Present:     Sh Ashu Mittal, Ld Counsel for complainant,    

                 Sh Atul Gupta, Ld Counsel for OP-1,

                 Sh Ashok Monga, Ld Counsel for OP-2.

 

* * * * * * * * * *

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ORDER

(Ajit Aggarwal, President)

                                      Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops for deficiency in service and negligence on the part of OPs and for seeking directions to them to pay Rs.18,00,000/-as compensation for mental agony and harassment besides litigation expenses.

2                                         Briefly stated, the case of the complainant is that complainant fell on ground on 14.03.2017 in her house and she was immediately admitted in Guru Gobind Singh Medical College and Hospital, Faridkot where after checking it was found that she got fracture in neck of femur right side bone and on advise of doctor, she was operated upon and implant was fixed and thereafter, she was discharged from the hospital on 23.03.2017, but despite operation her pain did not subside. Concerned doctor told her that it may take six months to subside the pain, but even after passing of one year, pain still persisted and she was unable to bear full body weight on Right Lower Limb. On 29.03.2018, complainant approached OP-1 and after check up and taking tests, OP suggested her to remove the implant as it has gone infected and can cause permanent disability. On same day, implant, curettage and culture from operative side was removed by operation and she was discharged therefrom on 6.04.2018 and doctor assured her that complaint would not feel any pain and she would be able to walk properly within few days without walker. She followed the instructions of doctor but there was no

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improvement in her health, rather her condition deteriorated. On suggestion of OP-1, complainant got conducted her x-ray, but OP did not provide her any report and kept lingering on the matter on one pretext or the other. It is submitted that when complainant did not get relief from OP and her condition deteriorated, then she approached Dr Major Rajesh Gupta on 1.09.2018, who after x-ray told her there was a piece of implant in operative side, due to which body got infected and there was a threat to her life. On recommendation of said Dr Major Rajesh Gupta, complainant got removed said partial implant from operative side of her body by operation. It is further submitted that once the body has not accepted the implant and implant has gone infected, then, even if a small part of implant is left in body, the same is dangerous to life and due to negligence on the part of opposite party, complainant has suffered great loss to her health. Complainant came to know about the negligence of Dr Bikram OP only when Dr Major Rajesh Gupta told her that there was a partial implant in her body due to which she was suffering from pain and her health was deteriorating. All this amounts to deficiency in service and this act of OPs for committing negligence in treatment of complainant has caused huge harassment and mental agony to her. He has prayed for accepting the present complaint alongwith compensation and litigation expenses besides the main relief. Hence, the instant complaint.

3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 25.09.2018,

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complaint was admitted and notice was ordered to be issued to the opposite party.

4                                                         OP-1 filed reply through counsel wherein took preliminary objections that complaint filed by complainant is false and frivolous and is based on baseless allegations. They have denied all the allegations of complainant being concocted ones and asserted that present complaint is not maintainable on account of non joinder of necessary parties as Guru Gobind Singh Medical College and Hospital, Faridkot and Dr Major Rajesh Gupta of Bathinda are not impleaded by her in present complaint. No cause of action arises against answering OP as complainant and her attendant were already told by answering OP that tip of distal screw stuck in bone was not removed as its removal could cause more damage to the bone and this fact was shown to her by showing her post operative x-ray. Complainant has not disclosed the true facts and has concealed the material facts from this Forum and complaint filed by her is misconceived, groundless, frivolous, vexatious and incorrect and complainant has concocted the entire story to black mail the answering OP. It is averred that complainant fell down on ground in her house and was treated and operated in Guru Gobind Singh Medical College and Hospital, Faridkot one year ago in 2017 and post operatively, she developed pus discharge from her wound and was in pain. After careful examination and conduction of x-ray, answering OP showed her x-ray report and explained to complainant and her attendant that it was due to

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non union of fracture and metal work loos and lower screws were broken and advised surgery for removal of metal implant and wound debridement. All the expenses and pros and cons of surgery were duly explained to them and after due consent from complainant, surgery was done upon her on 20.03.2018 and she was discharged on 6.04.2018 in satisfactory condition. Thereafter, post operative x-ray was performed and its report was shown to complainant and her attendant and it was duly explained to them in vernacular language that tip of distal screw was stuck in the bone, which was not removed as its removal may cause more injury and damage to the bone. It is submitted that complainant was given best treatment as per Culture Reports and she was again given treatment for minor infection on 5.05.2018 to be sure that she is cured because she will eventually need hip replacement surgery. On her last follow up visit in OPD, the wound of complainant was healed and she was walking with walker and she was explained for hip replacement surgery after sometime if her lab parameters remain normal and wound remains dry. She complained of minimum pain on walking and she was told that it was due to non union of fracture. It is brought before the Forum that after some days, attendants of complainant came to him alongwith media persons and started demanding compensation from him on the ground that treatment given by him was not proper and caused much loss to his reputation and thereafter, a Board was constituted in Medical College, Faridkot which gave report that treatment given by OP-1 was as per rules and nothing

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wrong was done by him. There is no negligence or deficiency in service on the part of answering OP. However, on merits, OP-1 has denied all the allegations of complainant being wrong and incorrect and asserted that there is no deficiency in service on the part of OP-1. All the other allegations and allegation with regard to relief sought too are denied being wrong and incorrect and prayer for dismissal of complaint with costs is made.

5                                    OP-2 also filed written statement taking preliminary objections that present complaint is without any cause of action and it involves complicated questions of law and facts requiring voluminous evidence, which is not permissible in the summary proceedings of this Forum and even, complainant has not disclosed that how she calculated amount of Rs. 18 lacs. Present complaint is bad for non joinder of necessary parties as Guru Gobind Singh Medical College and Hospital, Faridkot and Dr Major Rajesh Gupta of Bathinda from who she undertook treatment, are not impleaded by her in present complaint. Moreover, no intimation was ever given by complainant regarding her illness or treatment undertaken by her, thereby preventing them to gather first hand information regarding her alleged health problem. Complaint is malafide and is filed with ulterior motive to draw undue advantage and extract money from answering OP.  Complaint filed by complainant is premature because as per terms and conditions of policy and as per law, complaint can be filed only against the doctor insured and their company

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is only an indemnifier subject to fulfilment of certain terms and conditions of the policy and they can be held liable only if the insured is held liable and their company is to indemnify only the insured and not the complainant. There is no privity of contract between complainant and answering OP. On merits also, OP-2 have denied all the allegations of complainant being wrong and incorrect and reiterated the same pleadings taken in preliminary objections and asserted that there is no deficiency in service on their part and prayed for dismissal of complaint with costs.

6                                                          Parties were given proper opportunities to produce evidence to prove their respective case. Ld counsel for complainant tendered in evidence affidavit of complainant Ex.C-1 and documents Ex C-2 to C-6 and then, closed the evidence.

7                                                         To controvert the allegations of complainant, ld counsel for OP-1 tendered in evidence affidavit of Dr Bikram Singla Ex OP-1/3 and documents Ex OP-1/1, Ex OP-1/2 and Ex OP-1/4 and Ex OP-1/7 and then closed the same on behalf of OP-1. Ld Counsel for OP-2 tendered in evidence affidavit of Kamaljit Kaur Ex OP-2/1, copy of policy Ex OP-2/2 and then, closed the same on behalf of OP-2.

8                                                   From the careful perusal of record and after going through evidence and documents produced on file by complainant as well as OPs, it is observed that case of complainant is that

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complainant fell on ground and got fracture in neck of femur right side bone and admitted in GGS Medical College and Hospital, Faridkot, she was operated upon and implant was fixed, but despite operation she felt pain. After one year, pain still persisted and she was unable to bear full body weight on Right Lower Limb, she again approached OP-1, who suggested her to remove the implant as it has gone infected and can cause permanent disability. On same day, implant, curettage and then, culture from operative side was removed by operation and doctor assured her that she would be able to walk properly within few days without walker. She followed the instructions of doctor, but her condition deteriorated. When she did not get relief from OP-1, she approached Dr Major Rajesh Gupta, who after x-ray told her there was a piece of implant in operative side, due to which body got infected and there was a threat to her life and on recommendation of said Dr Major Rajesh Gupta, she got removed said partial implant from her operative side. It is submitted that due to negligence on the part of OP-1, complainant suffered great loss to her health, which amounts to deficiency in service. She has prayed for accepting the present complaint. In reply, OP-1 stressed mainly on the point that  allegations levelled by complainant are totally false as both complainant and her attendant were already told by OP-1 that tip of distal screw stuck in bone was not removed because its removal could cause more damage to the bone and this fact was shown to her by showing her post operative x-ray. It is averred that complainant fell down on ground in

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her house and she was treated and operated in Guru Gobind Singh Medical College and Hospital, Faridkot. Post operatively, she developed pus discharge from her wound and was in pain. After careful examination and conduction of x-ray, OP-1 showed her x-ray report and duly explained that pain it was due to non union of fracture and metal work loose and lower screws were broken. Metal implant was to be removed and all the pros and cons of surgery were duly explained to her and her attendant. Thereafter, Suurgery was done and was discharged in satisfactory condition. Thereafter, post operative x-ray was performed and its report was shown and was explained in vernacular language that tip of distal screw was stuck in the bone, which was not removed as its removal may cause more injury and damage to the bone. Complainant was given best treatment as per Culture Reports and on her last follow up visit in OPD, the her wound was healed and she was walking with walker. She complained of minimum pain on walking. There is no negligence of deficiency in service on the part of OP-1. OP-2 stressed mainly on the point that complainant has not cleared that how she reached to the amount of Rs. 18 lacs. Moreover, complaint is bad for non joinder of necessary parties as Guru Gobind Singh Medical College and Hospital, Faridkot and Dr Major Rajesh Gupta of Bathinda from whom she undertook treatment, are not impleaded as parties and even no intimation was given by her regarding her illness or treatment to them, preventing them to gather first hand information regarding her alleged health

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problem. Complaint is filed with ulterior motive to draw undue advantage from them and as per terms and conditions of policy and as per law, complaint can be filed only against the doctor insured and their company is only an indemnifier. Op-2 is to indemnify only the insured and not the complainant. Moreover, there is no privity of contract between complainant and OP-2. Both the Opposite parties sternly denied that there is any deficiency in service on their part and prayed for dismissal of complaint with costs.

9                                                      Grievance of complainant is that she did not get relief from the treatment given by OP-1 and even after operation there was pain in her leg. On the other hand OP-1 brought before the Forum that complainant fell down on ground and was operated and given treatment in Guru Gobind Singh Medical College and Hospital, Faridkot one year ago in 2017 and after operation, she developed pus discharge from her wound. After careful examination, it was clearly told her that pain was due to non union of fracture and metal work loose. Lower screws were broke. Surgery was advised for removal of metal implant and wound debridement. Implant was removed and she was told that tip of distal screw stuck in the bone and was not removed as its removal may cause more injury and damage to the bone. Complainant was given best treatment as per Culture Reports and during her last follow up visit in OPD, her wound was healed. She was walking with walker and had little pain on walking. Ex OP-1/2 copy of case file of complainant

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clearly brings on record that there is no flaw in treatment given by OP-1 to complainant. Status at the time of arrival of complainant in hospital, vital chart showing treatment given during the said period, case summary and operation notes clearly describe the fact that there is no negligence or flaw on the part of Dr Bikram Singh in giving appropriate treatment to complainant.  OP-1 produced on record report of Medical Board Ex OP-1/7. The ld counsel for OP-1 argued that earlier complainant filed an application before Deputy Commissioner, Faridkot against OP-1 on same cause of action and on instructions of Deputy Commissioner, Faridkot, Principal, Guru Gobind Singh Medical College and Hospital, Faridkot constituted a Medical Board consisting of doctors of Department of Orthopaedics of Guru Gobind Singh Medical College and Hospital, Faridkot, who investigated the entire matter and also physically examined the complainant and all the treatment record of the complainant and observed that firstly complainant was admitted in Guru Gobind Singh Medical College and Hospital, Faridkot on 14.03.2017 due to fracture in femur neck where her operation was conducted and DHS plates were implanted. After about one year, there was pus formation at the site of operation and DHS plates assembly broke and she felt pain. Due to it she approached OP-1 who after operation removed the DHS plates to stop pus formation and further loss. It is recommended procedure to stop pus formation and breakage of implant, but in this operation a tip of distal  screw was left in the bone and was not removed by OP-1 due to the

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reason that for removal of this screw, it may cause damage to bone. It is submitted that in such type of operations, where removal of part of screw is difficult as it may cause more injury and major loss to the bone then, in that case, it is left as it is as it may be cured with Immune System of our body and  with the help of antibiotics and multivitamins. From the careful perusal of report of Medical Board, it is observed that surgery conducted by OP-1 Dr Bikram Singla was as per rules and there was no negligence or deficiency on the part of doctor in operation and treatment given to complainant. Treatment was given as per approved and prescribed medical standards and there was no deviation of prescribed rules and procedure meant for curing the problem of complainant. Nothing wrong was done by OP-1 in giving treatment to complainant. Operation was conducted as per recommendations of medical study on the basis of tests  conducted upon her. Post operative treatment was also correct. Medical Board gave its report after thoroughly checking and going through the voracity of tests conducted upon complainant and reports showing the treatment given to her. OP-1 has produced cogent and sufficient evidence to prove his pleadings and documents produced by him are fully authentic and are beyond any doubt.

10                                    Ld Counsel for OP-1 pleaded that there is no negligence on the part of the Ops, they have done the best treatment which is available for the disease of complainant.The Counsel for the Ops argued that the complainant has not proved his case by any expert medical

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evidence and by mere allegations of medical negligence it cannot be proved. In his support he put reliance on the citation Usashi Mukherjee & anr Vs Coal India Ltd. And ors. 2010 (1) Consumer Law Today,136, in a case of Medical Negligence, it was observed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that “medical negligence-Burden of proof- the onus to prove medical negligence lies largely on the claimant - the onus can be discharged by leading cogent evidence - a mere averment in complaint which is denied by the other side cannot be said to be evidence by which case of complainant can be said to be proved - it is the obligation of the complainant to provide the facta probanda as well as the facts probantia.” Ld. Counsel for the Ops argued that before the treatment, it was well informed to the complainant regarding the disease and her condition and she gave her consent for the same and after her consent the doctor started treatment. In his support he put reliance on the citation 2010 (4) Consumer Law Today, 126 titled as Vinay Kumar and others Vs Post Graduate Institute of Medical Education and Research, Chandigarh and another whereas the Hon’ble Consumer Disputes Redressal Commission Union Territory, Chandigarh, held that “Medical service-Medical negligence alleged-Surgery-Laparoscopic method-For removal of gallbladder which was having stones-there is consent letter signed by complainant no.1 giving his consent for surgery under his own risk and willingness-No evidence on record that treating doctor was no qualified to treat the patient or he did not follow the line of treatment as per medical norms or he did not take proper post operative care of the patient-

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Complainants have not been able to produce any evidence or medical opinion to prove their contention that the Pancreas of the deceased has been negligently cut or damaged by the treating doctors and that eventually caused Pancreatitis resulting in the death of the patient or any other medical negligence on the part of Ops-Complaint liable to be dismissed.” As such there is no negligence and carelessness on the part of the Ops. The Counsel for the complainant miserably failed to prove his case. There is no negligence on the part of the Ops and complainant file the present complaint only to extract money from the Ops and prayed that the present complaint may be dismissed with cost.

11.                                  OPs further argued that complainant has filed false complaint to fetch money from the Ops. He put reliance on the citation 2014(3)Consumer Law Today, 9  titled as Vijay Dutt Vs Dr.R.D. Nagpal & others whereas Our Hon’ble National Commission, New Delhi observed that “Consumer Protection Act, 1986,Section 2(1)(g)-Medical Negligence -doctors cannot give a warranty of the perfection of their skill or a guarantee of cure and if the doctor has adopted the rightcourse of treatment and if he is skilled and has worked with a method and manner best suited to the patient, he cannot be blamed for negligence if the patient is not totally cured”. He also put reliance in citation 2010 (2) Consumer Law Today, 282 (S.C) titled Kusum Sharma & ors Vs Batra Hospital & Medical Research Centre & Ors whereas Our Hon’ble Apex Court laid down Basic principles regarding medical negligence which are reproduced as under:-

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                             “On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-

I.       Negligence is the breach 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.

II.      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.

III.    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.

IV.     A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V.    In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent

 

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merely because his conclusion differs from that of other professional doctor.

VI.    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.

VII.    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.

VIII.    It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX.    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.

 

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X.   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.

XI.   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 patients. The interest and welfare of the patients have to be paramount for the medical professionals.

                   In para no.90 Our Hon’ble Apex Court has observed that                            ‘As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind’.

12                           From the above discussion and keeping in view the evidence produced by parties, this Forum is of considered opinion that there is no deficiency in service on the part of OP-1 and therefore, present complaint is hereby dismissed. However, in peculiar circumstances of the case, there are no orders as to costs. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room. 

Announced in Open Forum

Dated: 2.12.2019

(Param Pal Kaur)                  (Ajit Aggarwal)  

           Member                               President