Haryana

Yamunanagar

CC/1196/2011

Surinder Kumar - Complainant(s)

Versus

Dr. Kulbhushan Gupta, M.B.B.S., M.S. - Opp.Party(s)

V.K.Kamboj

17 Apr 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 1196 of 2011.

                                                                                    Date of institution:30.11.2011.

                                                                                    Date of decision: 17.04.2017

 Surinder Kumar aged about 35 years son of Shri Bachna Ram, resident of Village Ghanour, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                                  

                                                                                                                         …Complainant.

                                    Versus

 

1. Dr. Kulbhushan Gupta, M.B.B.S., M.S. (Ortho), K.B. Gupta, Hospital, Bilaspur Road, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.
2. United India Insurance Company Ltd., 54, Janpath, Connaught Place, New Delhi-110001 ( Vide Professional Indemnity Policy No. 040100/46/10/35/00003583 effective from 27.10.2010 to 26.10.2011.                                                                                              

                                                                                                                        …Respondents.

                       

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT,

                          SH. S.C.SHARMA, MEMBER.

 

Present:Sh. V.K.Kamboj, Advocate, counsel for complainant.   

              Sh. Pardeep Garg, Advocate, counsel for respondent No.1

              Sh. Rajiv Gupta, Advocate, counsel for respondent No.2.

 

ORDER         (ASHOK KUMAR GARG PRESIDENT )

 

1                    Complainant Surinder Kumar has filed the present complaint under section 12 of Consumer Protection Act, 1986 praying therein that respondents (hereinafter respondents to be referred as OPs) be directed to pay Rs. 4,00,000/- on account of negligence in medical treatment and further to pay compensation as well as litigation expenses.       

2.                     Brief facts of the present complaint, as alleged by the complainant, are that on 31.07.2011, the complainant fell down from the roof of his house due to spark of electricity and in that accident the bone of right hip of the complainant was fractured. Upon which, the complainant was shifted to the hospital of the OP No.1 doctor where he was operated upon by the OP No.1 Doctor and for this OP No.1 Doctor charged a sum of Rs. 50,000/- from the complainant for treatment, other than the medicine and other miscellaneous expenses etc. and assured that complainant will  be fully cured after the treatment. During the treatment, the OP No.1 Doctor had inserted a rod in the bone of the hip of complainant. Thereafter, the OP No.1 doctor after keeping the complainant into observation for some days discharge him on 11.08.2011 but after some days from the discharged from the hospital, the complainant felt pain in the hip and leg as he was unable to move his leg. His disc was totally jammed and whole lower part of the body of the complainant swelled. Due to that, complainant in the last week of August, 2011 contacted the Op No.1 Doctor and after check-up Op No.1 Doctor stated that he would be again operated upon and the total expenses thereof would be Rs. 20,000/-. The complainant lost his faith and finding no other alternative, the complainant came into the hospital of Goel  Hospital, Yamuna Nagar on 02.09.2011 and Dr. Mahavir Goel after examining the complainant disclosed that a Guide Wire had been unnecessarily inserted in the hip of the complainant and the complainant would be operated upon again for removal of the said wire.  Further, Dr. Mahavir Goel also disclosed the fact that the said facilities are not available with them. Thereafter, the complainant went to the Civil Hospital, Yamuna Nagar on 03.09.2011, and doctors of the Civil Hospital referred to the complainant to PGI, Chandigarh. On the same day i.e. on 03.09.2011 the complainant went to the PGI Chandigarh and was admitted there and doctor of the PGI conducted the investigation and during the investigation it was revealed that pain in hip and leg was due to the negligence in the operation conducted by the OP No.1 Doctor as the OP No.1 Doctor wrongly inserted the Guide wire. The Doctors of PGI further suggested to the complainant that he must go for further surgery for removal the Guide Wire and ultimately the complainant was operated upon on 16.09.2011 and the said Guide Wire was removed from the hip bone of the complainant and complainant remained admitted there up to 18.10.2011 and spent more than Rs. 1,00,000/- on his treatment. The Doctors of the PGI, Chandigarh also disclosed the fact that if the said Guide Wire was not removed then there was every possibility of damage to the bladder because the said Guide Wire touched the bladder as well as back bone of the complainant. The complainant has suffered all the pain as suffering and had to spent huge amount on his treatment due to sole negligence on the part of OP No.1 Doctor which constitute the deficiency in service on the part of OP No.1 Doctor. Lastly, prayed for directing the OPs to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OP No.1 Doctor appeared and filed his written statement by taking some preliminary objections such as the OP No.1 doctor is a well-qualified and reputed surgeon having qualification M.B.B.S., M.S. (Ortho) and running his hospital from the last many years; complaint is bad for non-joinder and mis joinder of the necessary parties as the OP No.1 doctor was insured with the United India Insurance Company Limited vide policy No. 040100/46/10/35/00003583 valid from 27.10.2010 to 26.10.2011 and the present complaint is wholly misconceived, groundless, false, frivolous and vexatious in the eyes of law and is cooked up and has been filed without justified reason or cause just to harass, defame and extort an illegal amount from him, no specific, scientific and justified allegation with regard to negligence or deficiency in service has been made by the complainant against the OP No.1 doctor. The complainant has totally failed to explain “ as to how the OP No.1 was negligent”, the complainant has not come to this Forum with clean hands rather has suppressed the material facts. The true facts are that the complainant approached the OP No.1 Doctor on 31.07.2011 since he had received injuries while falling from an electric pole when he was repairing the electric cable and had fractured of femur alongwith fracture L-1 vertebra. The patient was operated by the OP No.1 and discharged on 11.08.2011 in the satisfactory condition and the patient’s relatives contacted in the OPD on 16.08.2011 and 27.08.2011 but they did not bring the patient and were thus advised to bring the patient for check-up. The patient was properly examined, investigated diagnosed and treated by the OP No.1 as per prescribed norms of medical practice which are mentioned in the text books and journals of the subject concerned without deviating from the normal/ prescribed line of treatment and on merit it has been mentioned that patient/complainant had paid only Rs.24,900/- vide bill No. 90 dated 11.08.2011. During the operation, plate was inserted for fixation of fracture. After the surgery, the patient and his relative were duly explained that a Guide Wire was broken inside and it needs removal which was also advised by Doctor Aditya Goel    but the patient and his relative refused and told that in case any problem arises, it would be taken care of which the Op No.1 has mentioned in the discharge slip also about the said surgery. Moreover, they have given the OP No.1 in writing in the bed head ticket that they do not want any abdominal surgery and it is totally their risk and there would be not liability of OP No.1. The patient was discharged on 11.08.2011. It has been specifically denied that the Op No.1 demanded Rs. 20,000/- again for doing the surgery from the complainant. It has been further mentioned that the complainant’s relatives contacted Dr. Mahavir Goel  on 02.09.2011 but only x-ray were shown and Dr. Mahavir Goel also advised the complainant’s relatives to bring the patient and it’s not mentioned in the slip that there was any negligence in performing the operation. It has been further mentioned that it is true to the extent that complainant went to PGI Chandigarh and was admitted there on 05.09.2011 and from the investigation, it was revealed that a Guide Wire was broken in the pelvis but it is not mentioned anywhere in the PGI records that there was any negligence performed in doing the service by OP No.1. During the operation of the complainant at the OP No.1 Hospital, Guide Wire was broken inside the pelvis. Guide Wire is a metallic hardware and it can break any time during the surgery at any medical centre of the world and in anybody’s hand and it is not due to any negligence of the treating surgeon since it is a known complication of the procedure in medical science. The operation done by the Op No.1 was technically correct and as per standards. Rest contents of the complaint were denied being wrong and manipulated. Lastly, prayed for dismissal  of the complaint.

4.                     OP No.2 Insurance Company also appeared and filed its written statement besides the preliminary objections it has been mentioned on merit that the detailed reply has been given by the treating doctor which is correct one and all the allegations leveled against OP No.1 doctor are false and wrong. However, it has been admitted that a professional indemnity policy bearing No. 040100/46/10/35/00003583 for a sum of Rs. 10,00,000/- valid from 27.10.2010 to 26.10.2011 was issued subject to its terms and conditions in the name of Op No.1 Dr. Kulbhushan Gupta. Lastly, prayed for dismissal of complaint qua OP No.2 being devoid of any merit.

5.                     In support of his case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of OPD slip of Dr. K.B.Gupta Hospital as Annexure C-1, Photo copy of OPD slip of Goel    Hospital as Annexure C-2, Photo copy of OPD slip of General Hospital, Yamuna Nagar as Annexure C-3, Photo copy of C.T. Scan Report of PGI Chandigarh as Annexure C-4, Photo copy of admission card of PGI as annexure C-5, Photo copy of medical/Chemist Bills as Annexure C-6 to C-14, Photo copy of treatment record of the PGI Chandigarh as Annexure C-15 to C-19, Photo copy of discharge summary as Annexure C-20, Photo copy of operation notice of PGI as Annexure C-21 to C-24, Photo copy of OPD slip of Kohli Hospital alongwith X-ray film as Annexure C-25 to C-27 and closed the evidence on behalf of complainant.

6.                     On the other hand, OP No.1 Doctor tendered into evidence his affidavit as Annexure RW/A and documents such as photo copy of master degree of surgery and certificate of Punjab Medical Council as Annexure R1/1 and R1/2, Photo copy of Insurance Policy as Annexure R1/3 and closed his evidence. However, in additional evidence OP No.1 tendered affidavit of Dr. Ramesh Sen, Ex-Professor Orthopedic Department, PGI, Chandigarh as Annexure R1/4.

7.                     Learned counsel for the OP No.2 tendered into evidence affidavit of Sh. Ajay Sareen, Assistant Manager as Annexure RW2/A and documents such as Photo copy of insurance policy alongwith its terms and conditions as Annexure R2/1 and closed the evidence on behalf of Op No.2.

8.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

9.                     It is not disputed that complainant suffered injuries i.e. fracture of femur alongwith fracture L-1 vertebra and remained admitted in the hospital of OP No.1 doctor from 31.07.2011 to 11.08.2011 as this fact has been admitted by the OP No.1 doctor in his reply. It is also not disputed that during the operation of the complainant in the OP No.1 doctor Hospital, Guide Wire was broken inside the pelvis as this fact has also been admitted by the Op No.1 doctor in para No.4 of his written statement on merit.

10.                   The only plea of the OP No.1 doctor is that Guide Wire is a metallic hardware and it can break any time during the surgery at any medical centre of the world and in anybody’s hand and it is not due to any negligence of the treating surgeon since it is a known complication of the procedure in medical science and further the operation was done technically correct and as per standards. Further, the Op No.1 Doctor has also admitted in para No.8 of the written statement on merit that complainant went to the PGI, Chandigarh and was admitted there on 05.09.2011 and during investigation, it was revealed that Guide Wire ( K-wire) was broken in the pelvis. Learned counsel for the Op No.1 doctor further draw our attention towards the affidavit of Dr. Ramesh Sen Ex-Professor (Ortho) PGI Chandigarh Annexure R-1/4 and argued that the same view has been expressed by the said Dr. Ramesh Sen, that this is a known complication of surgery and it can happen with anybody during the surgery. It is mechanical failure of metal implant not the negligence on the part of operating doctor i.e. OP No.1. Learned counsel for Op No.1 also referred the literature which was ordered to be marked “A” wherein it has been so recorded that “Under the x-ray guidance of the image intensifier the procedure is visualized on television screens. A Guide Wire is inserted into the head of femur using a power drill. A suitably sized screw is fixed into the head. This has to be generally in the centre of the head in 2 views, the AP ( antero- posterior) and lateral view” and argued that as per this literature the Guide Wire was inserted into the head of the femur of the complainant and the version of the complainant that there was no need to insert the Guide Wire (K-wire) is totally incorrect and wrong. Learned counsel for the OP No.1 Doctor further referred the case law titled as V. Mohan Rao Versus Mlot Hospitals and another, 2008 (1) CLT page 620 wherein it has been held that (i) ………… (ii) Medical Service- Deficiency in Service- Surgery- Hip replacement- Snapping of “K” Wires- Held that this is an accepted complication of this operation and the world average is known to be 18%- No deficiency can be attributed to the respondent on account of snapping of wires.

            And also referred the case law titled as Inderjit Singh Buttar Versus H.S. Bakshi (Dr) and others, 2011(2) CLT page 425 and Dhawan Laproscopy & Orology Centre 1 & Another, 2010(IV) CPJ page 150. Lastly prayed for dismissal of complaint.  

11.                   Learned counsel for the Op No.2 Sh. Rajiv Gupta, also argued that there was no negligence on the part of treating doctor i.e. OP No.1 and prayed for dismissal of complaint.

12.                   On the other hand, learned counsel for the complainant argued at length that complainant remained admitted in the hospital of the OP No.1 Doctor from 31.07.2011 to 11.08.2011 as bone of the right hip of the complainant was fractured. Learned counsel for the complainant further argued that Op No.1 doctor unnecessarily inserted a Guide Wire in the hip of the complainant due to which the complainant was feeling pain in the hip and leg and he was also unable to move his leg and his disc was totally jammed and whole lower part of the body of the complainant swelled. Learned counsel for the complainant further argued that due to this after some days in the last week of August, 2011, the complainant contacted the Op No.1 doctor and after checkup the OP No.1 doctor stated that he would be again operated upon and total expenses there of would be of Rs. 20,000/- due to which the complainant contacted another Doctor of the Goel Hospital on 02.09.2011 and Dr. Mahavir Goel, after examining the complainant disclosed that Guide Wire has been unnecessarily inserted in the hip of the complainant. Even after that, complainant visited the Civil Hospital, Yamuna Nagar and doctors of the Civil Hospital referred the complainant to PGI, Chandigarh. Accordingly, the complainant visited the PGI on 03.09.2011 and remained admitted there from 05.09.2011 to 18.10.2011 and draw our attention towards the discharge summary of PGI, Chandigarh Annexure C-20. Learned counsel for the complainant further draw our attention towards the notes of doctor of the PGI mentioned in the treatment file Annexure C-19 and C-21 and argued that doctors of the PGI has clearly mentioned that K-Wire is inside of the pelvis and needs removal. Further, learned counsel for the complainant draw our attention towards the OPD slips issued by MLGH & Trauma Centre, Yamuna Nagar Annexure C-3 wherein it has been also recorded that broken “K-wire” inside across femoral head and acetabular. Lastly, learned counsel for the complainant argued that OP No.1 doctor never disclosed to the complainant that Guide Wire ( K-wire) was broken in the pelvis during the operation of the complainant and draw our attention towards the OPD slip Annexure C-1 and argued that in this OPD/discharge slip, the OP No.1 doctor never disclosed this thing to the attendant or the complainant. Lastly, prayed for acceptance of the complaint.

13.                   After hearing both the parties, we are of the considered view that there is a deficiency in service or unfair trade practice on the part of OP No.1 doctor as OP No.1 doctor has himself admitted in para No.4 of the written statement on merit that during the operation plate was inserted for fixation of fracture. After the surgery, the patient and his relatives were duly explained that a Guide Wire was broken inside and it needs removal which was also advised by Dr. Aditya Goel    but this fact was not disclosed to the complainant or his attendant/relative by the OP No.1 Doctor at the time of discharge from the hospital on 11.08.2011 nor during the stay of the complainant in the hospital and even after that also when the complainant or his attendant visited the OP No.1 doctor on 18.08.2011 and 27.08.2011 as these facts are not mentioned in the OPD/discharge slip Annexure C-1 issued by OP No.1 doctor. The OP No.1 doctor has placed in his evidence only his qualification certificate as annexure R-1/1 and R-1/2 and in additional evidence affidavit of Dr. Ramesh Sen Ex-Professor of PGI Annexure R-1/4. Except this one, nothing has been placed on file by the OP No.1 doctor to prove that he ever disclosed the fact that the Guide Wire was broken inside of the pelvis of the complainant during the operation in the hospital of OP No.1 doctor. Further, the Op No.1 doctor did not bother to place on file any indoor treatment file and best evidence has been withheld by the Op No.1 doctor due to reasons best known to him.

14.                   As per Op No.1 doctor, the Guide Wire is metallic hardware and it can break any time during the surgery at any medical centre of the world and in the anybody’s hands. No doubt, the Guide Wire is a metallic hardware and it can break any time during the surgery but as per medical books the metallic Wire occasionally breakdown only due to manufacturing defect or inferior quality of the metallic Guide Wire and/or due to reuse of the Guide Wire again and again and/or due to wrong use with force during the operation by the treating doctor, so, the OP No.1 doctor cannot avoid his liability on this account as the OP No.1 doctor has not proved on file that he used the Guide Wire only first time in the case of complainant and Guide Wire was of reputed company and there was no negligence on his part during the operation. On the other angle also, for the sake of argument, if we presume that breakdown of the Guide Wire is a complication not the negligence but it was the duty of the OP No.1 doctor that such complications might be disclosed to the patient or his attendant prior to conducting of the operation. In the present case, the OP No.1 doctor neither disclosed this fact prior to conducting the surgery of the complainant nor even after conducting the surgery it was disclosed that the Guide Wire had broken inside of the pelvis during the operation. As, no consent obtained from the complainant or his attendant has been placed on file by the OP No.1 doctor.

15.                   The law referred by the counsel for the OP No.1 is not disputed but not helpful in the present case as every case has its own facts and circumstances. If there was no negligence or carelessness on the part of Op No.1 doctor then why he has not placed on file any indoor record of the complainant in question and further why he has not obtained the consent of the complainant prior to giving treatment. It is not the case of the OP No.1 doctor that the complainant as well as his attendant was not in a position to give any consent. The version of the Op No.1 as mentioned in the written statement that Doctor disclosed to the complainant that Guide Wire was broken during the operation is not tenable as no such documentary evidence has been placed on file.  It is settled law that prior to giving any treatment, the doctor has to obtain the consent and the same view has been held in case titled as Sumitra Kohli Versus Dr. Prabha Manchanda and another , 2008(2) Supreme Court Cases wherein principles relating to consent were laid down as under:-

                        We may now summarize Principles relating to consent as follows:

1. A doctor has to seek and secure the consent of the patient before commencing a ‘treatment’ (the term ‘treatment’ includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
2. The ‘adequate information’ to be furnished by the doctor (or a member of his team) who treats the patient should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c)  an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment.  Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.  

16.                   In the circumstances and going through the above noted facts, we are of the considered view that the OP No.1 doctor never disclosed the facts or complication to the complainant prior to the surgery or even after conducting the surgery that K-Wire was broken inside the pelvis which constitute the deficiency in service on the part of OP No.1 doctor. Hence, the complainant is entitled for relief.

17.                   Having held that there was carelessness and negligence on the part of the OP No.1 Doctor in giving the treatment to complainant, the ultimate question is as to what should be the reasonable compensation to which the complainant is entitled in the present case. In this complaint, the complainant has claimed a sum of Rs. 4,00,000/- on account of medical negligence and Rs. 80,000/- mental agony, harassment  and economic loss as well as Rs. 11,000/- as litigation expenses but no cogent evidence been placed on file as no medical bill or expenses incurred on 2^nd treatment in PGI has been placed on file, so, we have no option except to grant the compensation by way of guesswork. Keeping in view the circumstances of the case, we are of the view that a lump sum compensation of Rs.50,000/- (Fifty thousand only) would be adequate to meet the end of justice in this case.

18.                   Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the OPs to pay a lump sum of Rs. 50,000/- jointly and severally to the complainant and further to pay Rs. 5000/- as litigation expenses. It is made clear that as the OPs No. 1 was insured with the Op No.2, so, the OP No.2 United India Insurance Company will pay the awarded amount, being insurer of the OPs No.1 within a period of 30 days failing which complainant shall be entitled to recover interest at the rate of 6% per annum for the defaulting period.  Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court: 17.04.2017.

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT

                                                                                    DCDRF, Yamuna Nagar.

                                          (S.C.SHARMA)

                                           MEMBER