Haryana

StateCommission

CC/126/2014

Mastu Sukritya - Complainant(s)

Versus

Dr. Himanshu - Opp.Party(s)

01 Mar 2017

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint No.126 of 2014

Date of the Institution: 02.12.2014

Date of Decision: 01.03.2017

 

Master Sukritya (minor) aged about 10 years S/o Shri Ravinder Kumar son of Shri Puran Chand, r/o H.No.1410, Sector-3, HUDA, Urban Estate, Kurukshetra, through his father and natural guardian Ravinder Kumar S/o Sh.Puran Chand.

…..Complainant

Versus

 

1.      Dr.Himanshu Anand, Anand Orthopaedic Centre, Near Panorma, University Road, Kurukshetra-136118 (Phone 01744-292301).

2.      Dr.Sanjay Soni, Soni Burns and Plastic Surgery Centre, 351-L, Opposite Shivaji Stadium, Model town, Panipat (Phone 0184-4012574)

3.      United India Insurance Company Ltd, 60 Janpat Kanaught Palace New Delhi 110001 through its Professions Indemnity insurance policy No. 040100/46/12/32/00005807.

4.      Oriental insurance Company Ltd. A-25, 27 Asaf Ali Road New Delhi-110002.

                                                                             .….Opposite parties

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mrs.Simranpreet Kaur, Advocate for the complainant.

                   Mr. Ashwani Talwar, Advocate for respondent Nos.1 and 2.

                   Mr. P.S.Saini, Advocate for respondent Nos.3 and 4.

 

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

    

          It is alleged by complainant that on 02.12.2012 he suffered injury on right arm and was taken to the hospital of O.P.No.1.  As there was fracture in upper arm surgery was conducted.  When pulse was not found he was referred him to O.P.No.2 on 03.12.2012 and operation was performed on that very day which lasted for seven hours.  He was informed that pulse was OK. He remained in his hospital upto 11.12.2012.  For follow up treatment he went to O.P.No.1 and surgery was again conducted on 17.12.2012.  He regularly got treatment from O.P.No.1 till March 2013, but, wound did not heal. He was again referred to O.P.No.2 where surgery was conducted         on 26.03.2013, but,  reasons for non-improvement were not told to him. As there was no improvement he was taken to Dr.Sutendra Gaur in the month of April 2013. Some foreign  body was suspected in the wound. While dressing a piece of bandage was noticed by him  which was extracted.  On 20.04.2013 he was taken to Alchemist Hospital, Panchkula where Dr.Rajiv Kumar Kanse confirmed that it was a case of  “Osteomyelitis”.  In the month of May 2013 he was taken to the hospital of  Dr. R.L. Mittal Orthopaedic Centre, Patiala and bandage of about 6 to 7 inches in length was taken out, which was left by the O.Ps. while conducting surgery.  Now he is having Hyper Baric Oxygen Therapy (HBOT) at the cost of Rs.1500/- per day.  O.P.No.1 charged Rs.20,000/- at the time of first surgery and Rs.8000/- at the time of second surgery.  O.P.No.2 charged Rs.72,000/- from him.  O.P. Nos.1 and 2 acted against medical ethics and negligently due to which this problem had occurred.  There was nexus in between O.P. Nos.1 and 2 and it is unfair/malpractice on their part.  His father was serving as professor in Oman and was earning Rs.1,75,000/- per month. Due to this ailment he lost his job and suffered loss to the tune of Rs.20/- lacs.  His studies were also adversely effected.  O.ps. be directed to pay compensation to the tune of Rs.95/- lacs, as mentioned in the complaint.

2.      O.ps. filed separate replies controverting his averments.  It is alleged by O.P.No.1 that as per x-ray report complainant was having fracture of humerus supra condyle of right arm with Radial pulse absent.  It showed that fracture was serious due to which main blood supply vessel to lower arm was also injured.  Fracture was reduced through standard medical norms by fixing with 2K-wires without any incision.  Plaster of Paris Slab was applied and intra-venous antibiotic was given.  Despite that treatment  radial pulse was not palpable and further  management was required from plastic surgeon.  As father of complainant was not willing to take him to PGI, Chandigarh, he was referred to Soni Burns and Plastic Surgery Centre i.e. O.P.No.2  He was discharged in the morning of 03.12.2012.  Even after treatment from O.P.No.2 when complainant developed superficial swelling at the surgery site, he was admitted by him in consultation with O.P.No.2 for incision and drainage of collected fluid. However no puss was found and only altered collected blood and fluid were drained. For this purpose he was admitted on  05.01.2013 and was discharged on 07.01.2013.  He was advised regular dressing. On 23.03.2013 hypertrophic scar was noticed and massage was advised. Thereafter he came to him only on  26.05.2013. When no surgical incision was given by him, there was no question of bandage in the wound.  He is qualified surgeon and there was no negligence on his part.  His father was not on regular appointment and was being considered for temporary job. So there was no question of loss of earning on this count.  The amount of compensation is highly exaggerated.

3.      In addition thereto O.P.No.2 alleged that when complainant came to him there was tense swelling of  whole of right arm and proximal 2/3^rd of forearm and distal pulses were also absent. The color doppler study was done and following treatment was carried out:-

“i)      There was Difuse Spasm of Brachial Artery from mid arm till its bifurcation (meaning thereby there was no blood flow from mid arm to prxomal part of forearm i.e. upper and lower part of fracture site).

ii)       Big Haemotoma was present in surrounding area which was evacuated (meaning thereby the blood clots were removed from injury site).

iii)      Removal of adventitia was done from brachial artery gradually till its bifurcation and spasm was relieved (meaning thereby as per the medical norms the outer layer of branchial artery was peeled off and blood vessel became dilated again).

iv)      After this distal pulses became palpable (meaning thereby the blood flow to the forearm and hand was restored.)”

As there was improvement, split skin grafting (SSG) was done on 07.12.2012. There was no complaint till the time of discharge.  He was asked to visit after three days but instead of three days he visited on 18.02.2013 with problem of pus collection. Some antibiotics were prescribed and he was asked to come after one week i.e.  on 26.02.2013 for review, but, he came on 25.03.2013.  At that time his condition was satisfactory and wound had healed.  He was developing hypertrophic scarring  for which local creams were advised.  Bone infection is normal in such severe injury which is being projected as a case of retained foreign body. Vardhman Trauma Centre, Muzaffar Nagar (U.P.) also advised antibiotic. Dr. R.L.Mittal mentioned about multiple bone pieces coming out. Dr. Sutendra Gaur opined that there was a piece of cotton thread which was extracted.  He is trying to build up his case on that report which is not having  date or reference number.  How he mentioned  gauze in the wound can only be explained by him.  There was no negligence on his part and best available treatment was given.  The allegations leveled by complainant are altogether false and complaint be dismissed.

4.      O.P. No.3 adopted reply filed by O.P.No.1 and requested to dismiss complaint on those very grounds.

5.      O.P. No.4 controverted averments on the same grounds  as raised by O.P.No.2, but, alleged that it’s liability to cover risk is upto Rs.10 lacs in one accident and maximum limit of Rs.10/- lacs in any one year subject to other terms and conditions.

6.      Arguments heard. File perused.

7.      Learned counsel for O.P. NO.1 argued that as there was fracture of humerus, bone was reduced with 2K-wires fixing as mentioned in Ex.P-2.  No incision was given by him, so there was no question of leaving any foreign body in the wound as reported by Dr. Sutendra Gaur  in his report Ex.P-11.  If pieces of bone were coming out of wound, as mentioned in Ex.P-15 it does not mean that  there was any negligence because infected bones come out in routine.  As father of complainant was not willing to take him to PGI, Chandigarh, so he was referred to O.P.No.2. In this way there was no negligence on his part and he cannot be held liable for any problem.

8.      On behalf of  O.P.No.2  it was argued that complainant came to him on 03.12.2012 and after Doppler test aforesaid treatment was given because exploration was must to restore pulse.  When there was improvement, SSG was done.  As there was no problem he was discharged on 11.12.2012. He did not come for regular check-up as advised by him, as mentioned above. There was no question of gauze in the wound. As per complainant he visited so many hospitals thereafter i.e. Alchemist Hospital,  Gaur Nursing Home, Vardhman Trauma Centre, Muzaffar Nagar (U.P.), Rajindra Hospital, Patiala, Orthomax Bone and Joint Hospital and Shri Balaji Action Meidcal Institute. The gauze can be left at any those hospitals, so it cannot be presumed that this problem arose due to his negligence.  In support of his arguments he placed reliance upon the opinion of Hon’ble Supreme Court expressed in Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others.  2010 (1) C.P.C. 460 and Poonam Verma Vs.Ashwin Patel and others 1996 AIR (SC) pg. 2111. 

9.      However there is no dispute as far as opinion of Hon’ble Supreme Court  expressed in the aforesaid case laws is concerned, but, if we go through evidence available on file it will be clear that liability cannot be fastened upon O.P.No.1, but, O.P. No.2 can not escape from responsibility.  It is admitted by O.P.No.2 that he opened the wound and after operation plastic surgery was done on 07.12.2012. Thereafter complainant was discharged.  O.P.No.1 again conducted surgery on 17.12.2012 which is clear from the perusal of Ex.C-3. It shows that problem started just after treatment given by O.P.No.2.  It is admitted by O.P.No.1 that he extracted pus etc. in consultation with O.P.No.2 because there was discharge of sinus.  It shows that there must be foreign body in the wound  due to which infection started in such a short time.  Dr.Sutendra Gaur has mentioned in his report Ex.C-10 dated 25.04.2013 that when wound was explored a piece of cotton thread was extracted.  It is also mentioned in Ex.P-15 that small flakes of bone came out from sinus. It shows that there were pieces of bone which came out with the pus. Had O.P.No.2 provided proper treatment this problem would not have occurred.  Piece of cloth can be left in the wound at the time of operation and SSG by O.P.No.2 due to which this problem has started.  It is not possible for a patient to know that who was negligent.  Only as per evidence available on the file it can be seen who was on the wrong footings.  In these circumstances when problem started just after treatment provided by O.P.No.2 it can be safely presumed that he did not provide proper treatment.  It was duty of plastic surgeon to take proper care at the time of SSG etc. so he is held responsible for the lapse in proper treatment.

10.    Now question comes about quantum of compensation.  As per letter Ex.P-18 it cannot be presumed that his father was already employed at Oman and was forced to leave the service because it is only an offer.  As per copy of sale deed P-19 it cannot be presumed that the entire amount, mentioned therein was spent on his treatment, but, it can be presumed that the condition of the family was such that parents were not able to earn anything because they were to take complainant from one place to another. Due to paucity of income they might have sold this land whereas ordinarily it is mentioned in sale deed that without any pressure the land is being sold. 

11.    Further as per disability certificate EX.P-20 it is clear that complainant is having 20% disability.  It is not possible for him to use his hand properly. Due to this disability his chances of earning are also adversely effected because he cannot join armed forces, or any other service where physical activity is required. As per documents Ex.C-1 to C-15 it is clear that complainant went from one hospital to another hospital for treatment. Even Rs.20,000/- were paid by charitable trust.  It is not necessary in each and every case the bills qua expenditure are maintained.  It is no-where alleged by O.P.Nos.1 and 2 that they provided treatment free of cost.  It can be safely presumed that complainant must have spent atleast five lacs on treatment. So taking into consideration all the facts and circumstances including disability, complainant is awarded compensation to the tune of Rs.10/- lacs to be paid by O.P.No.2 and O.P.No.4, as being insurer of O.P.No.2, jointly and severally alongwith 9% interest from the date of filing of the complaint till realization. The complainant is also held entitled for Rs.21,000/- as litigation expenses.

 

March 01st, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.