Chandigarh

DF-II

CC/672/2020

Ankur Malhotra - Complainant(s)

Versus

Dr. Kanwarjit Singh Dhillon - Opp.Party(s)

Adv. Manoj Lakhotia

06 Dec 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	672/2020
Date of Institution	:	09.12.2020
Date of Decision	:	06.12.2023

 

                     

            

 

Ankur Malhotra s/o Sh.Anil Kumar Malhotra aged about 30 years r/o H.No.319, 2^nd Floor, Sector 40-A, Chandigarh

                 ...  Complainant.

Versus

 

1.  Dr.Kanwarjit Singh Dhillon, Max Super Speciality Hospital, NR.Civil Hospital, Phase-6, Mohali, Punjab.

 

2.  Max Super Speciality Hospital, NR.Civil Hospital, Phase-6, Mohali, Punjab through its Chairman/MD.

 

…. Opposite Parties

 

BEFORE:
	SHRI S.K.SARDANA,	PRESIDING MEMBER
	SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Ishneet Bhatia, Adv. Proxy for Sh.Manoj Lakhotia, Adv. for the complainant Sh.Devinder Kumar, Counsel for OP No.1 along with Sh.Saurabh Dalal, Adv. Sh.Ankush Aggarwal, Adv. for OP No.2.

   

ORDER BY S.K.SARDANA, PRESIDING MEMBER

1.     The complainant has filed the present complaint pleading therein that in month of February 2018, the complainant having constant pain and heaviness in the lower abdominal area, visited to the Hospital where he was checked & medically examined by Dr. Kanwarjit Singh Dhillon. After various Tests, ECG, X-Ray and Ultrasound Report, the complainant was diagnosed as Bilateral Inguinal Hernia in the right side & minimum in the left side and advised to undergo for surgery immediately. He got admitted in the Hospital on 03.03.2018 where a Laparoscopy Surgery of Inguinal Hernia by placing & fixing the B/L 3D BARD MESH in the body was performed by OP No.1 on 03.03.2018.  The Complainant was remained hospitalized from 03.03.2018 to 04.03.2018. After discharge from the Hospital, the Complainant followed up the instructions of Dr. Kanwarjit Singh Dhillon as advised from time to time and strictly adhered to all the instructions of the Doctors and took the medicine timely as per the advice. However, the complainant started facing Constipation, Burning Micturation and Pain in Pelvic Area. The complainant time & again visited to the Hospital Opposite Party No.2 but to no effect. Instead of getting relief from the problems, the Complainant started facing another problem of pain in bowel area near Mesh implant, discomfort in lower abdomen and incomplete sense of Evacuation. The Complainant again asked to the Doctor of the Opposite Party No.2 but the Doctor of the Opposite Party No.2 had not taken it seriously rather prescribed the medicine as a routine manner and told that it is a mental problem of the Complainant than that of medical problem. Finally, the complainant consulted Dr. Desarda Mohan, MS; FICS(USA); FICA (USA), Chief of Hernia Center, Poona Hospital & Research Centre, Pune Maharasthra, a prominent Doctor in India specially for Hernia Surgery. After going through all the reports carefully, Dr. Desarda opined that the problems of Constipation, Pain & Burning Micturation, discomfort in lower abdomen and Incomplete sense of Evacuation is due to placing & fixing the MESH in the body of the Complainant while surgery of Inguinal Hernia. He further opined that to get rid of all these problems, the only way is to undergo for surgery and to remove the same.  The complainant also consulted online with Dr. Kevin C. Petersen, MD, Las Vegas, USA who opined as under:-

"You appear to be suffering from the Hernia Mesh Pain Syndrome. This is a relatively common condition which is poorly understood by the medical community at large. The fact is that if you have persistent pain after mesh hernia surgery it is likely the mesh that is causing your pain".

        Further, the Complainant also consulted online through video consultation with Dr. R. Padma kumar, Sr. Consultant & HOD-General & Laparoscopic Surgery, VPS Lakeshore Hospital, Kochi, Kerala  who vide certificate dated 27.05.2020  had opined as under:-

    “He is suffering from Mesh rejection and intestinal obstruction. He needs surgical exploration to have recovery and is advised to get hospitalized as early as possible and proceed with surgical treatment”.

 

         Now from the last 6-7 months, the complainant is also facing pain and inability to carry out and continue with its routine activities i.e. walking, sitting and keeping himself in one posture for more than 15 minute. According to the complainant, the complications caused by the Mesh affixed while performing the Hernia Surgery by the Opposite Parties, has directly affected the performance and loss to the earnings of the Complainant.  It has been averred that the Mesh is a foreign object, a simple piece of cloth prepared from the polyester, polypropylene or similar synthetic threads, which has already been recalled by U.S. Food and Drug Administration since March 2008-09. Its use in hernia repairs is known to cause all sorts of complications like Constipation, Pain & Burning Micturation, discomfort in lower abdomen and incomplete sense of Evacuation to the Complainant. The Opposite Parties must be aware of it but they have failed to perform its duties towards the Complainant. Had the Doctors disclosed its complications, the Complainant would not have gone for the Hernia Surgery with Mesh repair. It has been alleged that the acts of the Opposite Parties are highly unethical as well as against the Medical Protocol rather amounts to medical negligence. The Complainant has suffered monetary loss, mental and physical harassment for no fault on his part. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice as well as medical negligence, the complainant has filed the instant complaint seeking directions to the OPs to refund the actual costs of the expenses, Rs.18.75 lakhs for future treatment for rectification, Rs.50.96 lakhs as direct loss to his earnings, compensation for mental agony and physical harassment as well as litigation expenses.

2.     In their written statement, the OPs took the preliminary objections inter alia that the complainant has got no cause of action to file the present complaint against them; the complaint is bad for non-joinder of necessary parties; there is no case of medical negligence mal practice as alleged by the complainant against the OPs; the complaint is false and baseless and has no merits and the same has been filed in order to gain cheap publicity and to extract unlawful money from the OPs; the allegations leveled in the complaint are not only absurd but also frivolous and baseless and formulated on wrong and misleading facts; the complainant does not spell out anything that can be termed as negligence or malpractice on part of the O.Ps and is merely an instrument to fleece money from the OPs; the allegations as leveled against the specialized doctors of the OP No. 2 Hospital are not only contemptuous but also imputations made to defame the reputed doctors of the region and to lower the image of the O.P No.2 in the eyes of general public It is pertinent to mention here that the OP No. 1 and 2 reserve their right to Initiate appropriate Criminal proceedings against the complainant for making the above said imputation; as per the settled law as well the settled medical norms, the action of the Ops in treating the complainant to the best of their ability and skills and best doctors and while keeping in view the standard medical procedure and the condition and safety of the complainant, the OPs cannot be held liable for deficiency in service or for medical negligence. It has further been stated that the complainant has been ill-advised by vested interests who are taking advantage of his ignorance of medical and surgical knowledge.  It has further been stated that 'Max Healthcare Hospital is a Super Specialty Hospital. Like PGI, AIIMS and other Super Specialist Medical Colleges, Max Hospital (opposite Party No.2) has been approved to teach Post Graduates in Surgery according to the Curriculam of Medical Council of India and DNB - NBA and teach performing all surgeries according to guidelines laid down. OP No.2-Dr. Kanwarjit Singh Dhillon is a Laparoscopic Surgeon of repute, who routinely performs all different types of Hernia Surgeries viz

(i)      Open Surgery without Mesh Repair,

 

(ii)     Open Surgery with Mesh Repair,

 

(iii)    Laparoscopic Surgery with mesh Repair.

 

depending on the type of Hernia and condition of the patient at the time of surgery and as per guidelines. It is admitted that Dr. Dhillon was working with the Opposite Party No.2 Max Hospital, however he is no longer serving in the hospital since 10.07.2019. It has been stated that the complainant was treated as per the protocol set in the International Guidelines for Hernia Repair through 'Laparoscopy with Mesh Repair', which guidelines have been attached with the written submissions. The international guidelines are endorsed by the following societies; European Hernia Society (EHS), American Hernia Society (AHS), Asia Pacific Hernia Society (APHS), Afro Middle East Hernia Society (AMEHS), Australian Hernia Society, International Indo Hernia Society (IEHS), European Association for Endoscopic Surgery and other Interventional Techniques (EAES). It has further been stated that the complainant has been diagnosed with CPPS (Chronic Pelvic Pain Syndrome) by two renowned Super Specialists, firstly, on 29.10.2018 by Urologist Dr. R.S. Rai and then on 31.01.2019 by Urologist Dr. Abhay Kalra who are both experts at Hernia Surgery too - Annexure C-17 dated 29.10.2018 (Page 40 of the Complaint). Further, the CPPS is a disease which exists independently and has no connection with hernia or Mesh or post surgical complications of a Laparoscopic Surgery. Instead of taking treatment of CPPS, the complainant has been taking online consultations with surgeons, who have not examined him physically.  On merits, it has been stated that before visiting the OPs, the complainant had consultations with another Urologist Dr. Karun Singla, apparently for his urinary problems and undergone various tests dated 23.02.2018(Ex.C-1 to C-4) whereby he was diagnosed with 'INGUINAL HERNIA' on both sides. The complainant sought consultation with OP No.1 for the first time on 24.02.2018 with Pre-diagnosis of Bilateral INGUINAL HERNIA' as per his Ultrasound Report Ex.C-1 dated 23.02.2018. However, he intentionally did not attach his Max Super Specialty Hospital OPD prescription slip dated 24.02.2013, which slip clearly showed his previous history of consultations with a Urologist and Tests got done on his advice for his micturition problems even before consulting OP No.1. Since the only treatment of INGUINAL HERNIA is surgery, hence OP No.1 advised 'Laparoscopic Surgery with Mesh to the complainant, which surgery is preferred for “minimal incision, faster recovery and less pain". Most of Hernia Surgeons (approx. 90%) use Mesh in Hernia repair according to International Guidelines. Mesh Repair, on being introduced in 1960, became the gold standard for Hernia repair. Laparoscopic Mesh Repair was introduced in 1993 and has been an approved technique and is taught in national and international curriculum. The complainant was categorically explained about his diagnosis and the treatment. The five risks of the procedure i.e. bleeding, infections, visceral injury, post operation pain and recurrence were duly brought to the knowledge of the complainant and his family members.  It has further been stated that when the complainant visited after more than 3 months of the surgery and again after 4 ½ months, on checking no complication was found on physical examination and all tests advised by OP No.1 for blood, urine and ultrasound were normal. It has further been stated that the medical prescription Annexure C-31 clearly shows that the complainant had no pain when he was examined by Dr.N.M.Gupta, Former Professor and Head of the Department of Surgery, PGI.  The remaining allegations have been denied, being false. Pleading that there is no medical negligence, deficiency in service or unfair trade practice on their part, the OPs prayed for dismissal of the complaint.

3.     The complainant filed replication to the written reply of the Opposite Parties controverting their stand and reiterating his own.
4.     Parties filed their respective affidavits and documents in support of their case.
5.     We have heard the Counsel for the contesting parties and have gone through the documents on record alongwith written submissions.
6.     On perusal of the complaint, it is gathered that the main grievance of the complainant is that after undergoing the surgery of hernia, he faced many problems like constipation, burning Micturation and Pain in Pelvic Area. After reporting of the same to the OPs and after undergoing various tests and taking of the prescribed medicines but he did not get any benefits.
7.     Later on, online consultations with  other doctors and downloading literature from net/google, he found that the mesh inserted for hernia does not give protection. The complainant has also alleged that the FDA has recalled the Mesh due to defects & dangerous side effects and also alleged that the OPs carried out the surgery without disclosing the complainant side effects and even without obtaining his separate consent.
8.     As regards the allegations of carrying out the surgery without disclosing complications, we perused the documents annexed as Annexures R-2 and R-3, which is a consent form, duly signed by the complainant and his father. It is observed that the five risks of the procedure performed on the patient are clearly mentioned in the consent form.
9.     As regards the second allegation regarding recalling of MESH by FDA, we have perused Annexures R-1/5 & R-1/6 and it is observed that the issue raised by the complainant is not found to be correct. In the Annexure R-1/5, the class is mentioned as ‘3’ abd Class III is a situation where product is not likely to cause any health problem or injury. There is a clear mention in Annexure R-1/6 that there is no product recall and the product is USFDA approved.
10.     Furthermore, the complainant has relied on online consultations with various other practitioners but the same are not supported by any affidavits of any of the consultants. Moreover, the complainant has not been examined physically by any of the consultant doctors, based on which, he has raised allegations against the OPs. Hence, we are of the view that much reliance cannot be placed on these online consultations.
11.     We have also perused the Annexure R-1/4 which contains “International Guidelines for Groin Hernia Management” and it is observed that one of the best practices available have been used for the ‘hernia mesh repair” of the complainant and he was operated as per the international guidelines issued by the Laparoscopic Mesh Hernia Repair.
12.     Needless to mention here that the OPs have attempted to treat their patient to the best of their ability, which was being done in the present case as well. Therefore, we do not find that the Hospital and the Doctors guilty of any negligence, much less medical negligence.
13.     We are supported by the ratio of law laid down by the Hon’ble Supreme Court of India in Dr. Harish Kumar  Khurana Vs. Joginder Singh  &  Ors., Civil   Appeal   No. 7380  of  2009  decided  on 07.09.2021. Relevant part of the said order is reproduced hereunder:-

 “….To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception. In the instant case, apart from the allegations made by the claimants before the NCDRC both in the complaint and in the affidavit filed in the proceedings, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctors who, on their own behalf had explained their position relating to the medical process in their affidavit to explain there was no negligence ….”

14.      Here we may also like to refer case titled as Dr.Laxman Balkrishna Joshi vs. Dr.Trimbark Babu Godbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, wherein, it was laid down by the Hon’ble Supreme Court that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the aforementioned case, the apex court interalia observed that negligence has many manifestations – it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence, or negligence per se. Black's Law Dictionary defines negligence per se as “conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of statute or valid Municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.” Thus, it has been made clear by the Hon’ble Supreme Court of India that a doctor owes to his patient certain duties of care in deciding whether to undertake the case and duty of care in the administration of that treatment and any breach thereof may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the present case, the OPs did not fail in their duties to take due care of the Complainant.
15.     In these set of circumstances, it can safely be concluded that there has been no deficiency in service on the part of OPs and the whole gamut of facts and circumstances leans towards the side of the Ops. The case is lame of strength and therefore, liable to be dismissed.
16.     Taking into consideration all the facts and circumstances of the case, we have no hesitation to hold that the Complainant has failed to prove that there has been any deficiency in service on the part of the OPs. As such, the Complaint is devoid of any merit and the same is hereby dismissed, leaving the parties to bear their own costs.
17.     The pending application(s) if any, stands disposed of accordingly.
18.     Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced in open Commission 06/12/2023
	Sd/- (S.K.SARDANA) PRESIDING MEMBER
	Sd/- (B.M.SHARMA) MEMBER