PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
Opposite PartyNo.1 is a Consulting Neuro Physician attached to Prince Alikhan Hospital. Opposite Party No.2 is a Neurological and Spinal Surgeon and is also a Consultant to various hospitals including Opposite Party No.3.
2) It is submitted that the Complainant was suffering from low backache, difficulty in defecation and micturition, weakness in left lower limb and had consulted the Opposite Party No.1 at the premises of Opposite Party No.3 in September and October, 2001. As advised by the Opposite Party No.1 scanning of Lumbo Sacral Spine was done at Breach Candy Hospital on 12/10/01. Alongwith complaint the Complainant has annexed copies of report dtd.07/08/01 of Dr. Jankharia of lumbar spine A.P. Lateral and conedown, the Urology report dtd.10/10/01 of the Bombay Hospital and M.R.I. report dtd.12/10/01 of the Breach Candy Hospital. The Complainant was advised by Opposite Party No.1 to undergo surgery at Opposite Party No.3 Hospital for Lumbar Laminectomy to get complete relief from his problem. Thereafter the Complainant was admitted in the Opposite Party No.3 hospital on 17/10/1 and was operated on 24/10/01 by Dr. U. Vengsarkar – Opposite Party No.2. for Lumber Laminectomy excision of seguastrated disk in the lumber sacral canal from left side. It is submitted that the Complainant’s condition deteriorated causing several complications such as difficult to stand continuously for 5 minutes, continuous back ache, difficulty in passing urine and motion, weakness and loss of sensation in his left leg, 3 fingers of right leg and heel and also on the sitting areas, which situation was worst as such symptoms were not present before the operation. The Complainant submits that all the complications were due to the defective treatment and operation conducted by Opposite Party No.2 & 3.
3) The Complainant was covered under Mediclaim Insurance Policy No.13703 issued by New India Assurance Co. Ltd., which fact was known to the Opposite Party No.1 & 3. It is alleged that Opposite Parties have adopted Unfair Trade Practices by keeping the Complainant in the hospital for 7 days while all the preparatory tests were done from out side Laboratories prior to the admission to the Opposite Party No.3 Hospital. It is contended that that only with the intention of making unlawful gain by way of bed charges and the visiting fees of the doctors. The Opposite Parties retained the Complainant in the hospital for 7 days. At the time of discharge form the hospital the Complainant was advised by Opposite Party No.1 to which certain medicines including tablets ceftum 500 mg. which were to be taken for 7 days. After consuming of tablets for 7 days as prescribed in the Discharge Card the Complainant felt that he was loosing his eye sight as he was feeling total dark due to poor vision. When the Complainant complained about this to Dr. Vengsarkar i.e. Opposite Party No.2, the Opposite Party No.2 submitted the reason that the complainant was not correct about side effects of the tablets, but it was only his whim and closed the topic. Thereafter, the Complainant visited the O.P.D. after every 7 days i.e. 3 times in 21 days and he had the same complaint but the doctor i.e. Opposite Party No.2 had not considered his complaint and prescribed him same tablets. In the Discharge Card Opposite Parties have mentioned “Stool passed normally” whereas even at the time of the discharge the Complainant could not pass stool without medicines such as, laxative medicines. Thus, the Opposite Parties have made false statement in the discharge card with ulterior motives.
4) It is submitted that subsequent to the surgery there was no improvement in the condition of the Complainant and he had been experiencing the symptoms as mentioned above i.e. continuous back ache, loss of sensation in legs, sitting area, etc. The Complainant took M.R.I., Scanning of Lumbo-Sacral spine again in the month of May and consulted Dr. Chhatriwala, Surgeon and Dr. Sunil Pandya the Neuro Surgeon. The Complainant also underwent EMG/NC evaluation at Jaslok Hospital. Alongwith complaint the Complainant had produced opinion of doctors and report of Jaslok Hospital is of 02/12/2003.
5) The Complainant has recited findings of MRI report in the complaint para no.4 and submitted that due to the negligence and wrong treatment of Opposite Party he is now experiencing loss of sensation in his legs sitting area and poor vision in both the eyes. It is submitted that on comparison with previous MRI scan performed on 12/10/01 complete removal of large sequestrated disc fragment is noted. However, the degerative changes adjacent to the end of the plate of the L.4 L.5 inter vertebral disc appears more marked on present scan. Dr. Sunil Pandya has noticed that the removal of large sequestrated disc fragment at L5 has resulted in widening of the sac at the level.
6) According to the Complainant, the Opposite Parties are liable for deficiency in services and for unfair trade practices and therefore, he has filed this complaint. It is submitted that cause of action arose on 24/10/2001 when the Complainant was operated and thereafter felt the symptoms as above mentioned in the post operation period and the same cause of action was continuing when the Complainant was discharged from the hospital and taking treatment. Therefore, the Complainant is filed within the statutory period as per provisions of the said Act within the time and delay if any may be condoned for the period of 2 months in which he was advised bed rest by the General Surgeon Dr. Chhatriwala.
7) The Complainant had initially filed this complaint before the Hon’ble State Commission and claim was found to be excessive the Hon’ble State Commission. So Complainant was directed to withdraw the complaint and as per the directions the complaint was withdrawn and filed this complaint before this Forum within 2 weeks from the date of returning the papers by office of Hon’ble State Commission. The Hon’ble State Commission has returned the papers on 12/03/04 i.e. within two weeks and hence, no condonation of delay is required to be made.
8) It is submitted by the Complainant that before operation he was plying a taxi and used to earn approximately Rs.10,000/- p.m. but after the operation the Complainant has not been able to even ply the taxi or to do any fruitful job due to the additional symptoms which he has suffered after the operation. The Complainant is required to pay about 2,700/- towards the school fees and expenses for his mentally retarded daughter and Rs.2,000/- by way of medical expenses of his daughter. The Complainant has prayed to declare that Opposite Parties are guilty of deficiency in service. The Complainant has requested to direct Opposite Party to pay to the Complainant jointly and/or severally a sum of Rs.15,00,000/- being the compensation for the losses of sensation in legs, mental agony and stress suffered by the complainant due to the wrong and negligent treatment and advice given by the Opposite Parties. The Complainant has further requested to direct Opposite Party to pay to the Complainant an amount of Rs.15,000/- towards legal and incidental expenses and any other relief as this Forum may deemed fit and proper.
9) Alongwith complaint, the Complainant has filed application for condonation of delay on 19/03/04 before this Forum. This Forum allowed the application and condoned the delay which was caused in filing of this complaint. The Complainant has produced number of copies of documents as per list of document.
10) Opposite Party No.1 has filed his written statement and thereby resisted claim of the Complainant contending that allegations made against Opposite Party No.1 about alleged medical negligence and unfair trade practice are false, frivolous and vexatious so present complaint deserves to be dismissed with compensatory costs.
11) It is submitted by the Opposite Party No.1 that complaint is barred by law of limitation. The Complainant has not filed this complaint within prescribed period of limitation under Sec.24A of the Consumer Protection Act, 1986. The Complainant was admitted in Opposite Party No.3 Hospital on 17/10/01 under his care and was operated upon in the said hospital by the Opposite Party No.2 on 24/10/2001 in Prince Alikhan Hospital. Therefore, as per the averment made in the complaint itself cause of action for filing of this complaint took place on 17/10/2001 and 02/11/2001. Initially in the month of February, 2004, Complainant had filed complaint before State Commission which was returned by the Hon’ble State Commission vide order dtd.12/03/04 and then Complainant has filed this complaint before this Forum on 26/03/04. It is alleged that the Complainant has not made any application for seeking condonation of delay and therefore, complaint is barred by law of limitation.
12) The Complainant has not produced evidence to prove alleged deficiency in service or alleged medical negligence or unfair trade practice on the part of Opposite Parties. The Complainant has not produced expert’s opinion in support of his allegations and therefore, complaint is liable to be dismissed.
13) The Complainant has claimed compensation of Rs.15 Lacs and cost of Rs.15,000/-, on mere allegations of deficiency in service and medical negligence. The Complainant has not substantiated the said allegation on the strength of independent evidence and therefore, the Complainant is not entitle to claim exorbitant compensation which is not based on the well recognized legal principles governing quantification of damages or compensation.
14) According to Opposite Party No.1 the Complainant was admitted in the Opposite Party No.3 hospital on 17/10/01 and was operated upon by Opposite Party No.2 on 24/10/04. Opposite Party No.1 has denied rest of the allegation made in the complaint. Opposite Party No.1 has specifically denied allegations that after operation the Complainant’s condition was deteriorated. It is contended that Complainant has deliberately made false allegations with an intention to mislead this Forum. The Complainant has deliberately suppressed material facts from this Forum.
15) It is submitted by the Opposite Party No.1 that in the month of September, 2001, the Complainant approached him in his private consulting room at Prince Alikhan Hospital with complaints of severe low back pain radiating to the left lower limb, weakness in the left lower limb, loss of sensation in the lower limbs and buttocks and difficulty in micturition and defecation. He recommended MRI scanning of the lumber spine and Urodynamic study of bladder function. MRI of the lumber spine done on 12/10/2001 at Breach Candy Hospital showed a large L4.5 sequestrated the disc fragment locked in the central canal and left lateral recess of L5 vertebra and upper sacral recess, compressing the cauda equine. Urodynamic study of 10/10/2001 done at Bombay Hospital showed a neurogenic bladder and the report additionally commented that “regional neurological examination reveals and Anal Tone poor, with absent sensation, absent voluntary contraction and absent bulbocavernosis reflex.” As per Opposite Party No.1 he advised several options of public and private hospitals in Mumbai. The Complainant opted to be admitted to the Opposite Party No.3 Hospital and was dully admitted on 17/10/2001.
16) The Complainant has suppressed fact that before recommending surgery, Opposite Party No.1 & 2 had explained the Complainant his health condition/disorder and possibilities of success of the operation vis-a-vis his condition. It was also explained that there is possibility of his over aforementioned disorder being rectified to the extent of preventing further deterioration. However, at no point of time any guarantee of reversal of his deficits was given to him. It is submitted that having understood pros and cons of the said operation, the Complainant singed the informed consent of the hospital for the said surgery. It is denied that due to the defective treatment and operation Complainant’s condition was deteriorated. Opposite Party No.1 has denied allegation that as the Complainant was covered under the mediclaim insurance policy, the Complainant was retained in the hospital for longer period.
17) Opposite Party No.1 has admitted that certain medicines including tablets ceftum 500 mg. which were prescribed by him to the Complainant for 7 days. He has denied allegations that after consumption of said tablets for 7 days the Complainant felt that he was losing his eye sight and he was feeling total dark due to poor vision. As per the Opposite Party No.1, the Complainant consulted him only once after discharge from Opposite Party No.3 hospital. Thereafter the Complainant never informed to him about alleged symptoms. The Complainant has not joined manufacturers of the said tablets as necessary party to this proceeding. He has denied allegation that monthly income of the Complainant was Rs.10,000/- and about the financial liability of the Complainant.
18) Opposite Party No.1 has stated that what precautions taken while treating Complainant at Opposite Party No.3 Hospital. He has stated about the help of number of doctors taken for treating the Complainant. According to the Opposite Party No.1 on 27/10/01 he found improvement in the condition of Complainant. Opposite Party No.1 as stated about his medical education and achievement in the medical field and submitted that his sympathies are always with the Complainant but he has denied allegations made by the Complainant about medical negligence also deficiency in service and therefore, according to the Opposite Party No.1 complaint deserves to be dismissed with cost.
19) Opposite Party No.2 has filed written statement and thereby denied allegations made in the complaint. He has specifically denied allegations made in the complaint about deficiency in service and unfair trade practice. According to the Opposite Party No.2, complaint is barred by law of limitation and therefore, complaint deserves to be dismissed with cost.
20) It is submitted that allegations in deficiency in service, medical negligence and unfair trade practice made by the Complainant against Opposite Party No.1 & 2 are not supported by independent medical evidence. The allegations made by the Complainant are false and frivolous therefore, complaint deserves to be dismissed. He has denied Complainant’s claim for compensation of Rs.15,00,000/- and cost of Rs.15,000/-.
21) Opposite Party No.2 has admitted that the Complainant was admitted in Opposite Party No.3 hospital on 17/10/01 and he was operated upon by the Opposite Party No.2 on 24/10/01. He has denied allegation that after operation the Complainant’s condition was deteriorated. He has denied allegations of medical negligence and deficiency of service. He has denied allegations that by consumption of tablet ceftum 500 mg. for 7 days caused damaged to the eye sight of the complainant as alleged. According to the Opposite Party No.2 the Complainant was referred to him by Opposite Party No.1 on 18/10/01 and he saw the Complainant on the same day. He examined the Complainant and found that the Complainant had restricted straight leg raising sign to 45° on both the sides. The Complainant had lost sensation over S1 S2 S3 S4 segments on both the sides. The Complainants knee jerks were present but ankle jerks were lost on both the sides. Planter response was flexor on both sides. According to the Opposite Party No.2 he performed surgery of the Complainant by taking due care. The said surgery went uneventful and as per his opinion the same was successful as there was no complications of whatsoever nature during the surgery and post operation. As per Opposite Party No.2, it is possible that because of Complainant’s physical condition prior to the said operation, the Complainant has not achieved desired results/relief. But it cannot be said that surgery performed was defective. Opposite Party No.2 has stated about his medical education achievements and submitted that there is no negligence or deficiency in service of any kind on the part of Opposite Party and therefore, complaint be dismissed with compensatory cost.
22) Opposite Party No.3 has also filed written statement and denied allegations made by the Complainant. It is submitted that Opposite Party No.3 is A 123 Bedded Hospital dedicated to all types of medical services and it is registered under the Societies Act, XXI, 1880, and the Bombay Public Trust Act, 1950. Opposite Party No.3 is well equipped hospital.
23) It is submitted that Complainant was admitted in Opposite Party No.3 Hospital on 17/10/01 for the main complaints of backache and difficulty in passing urine for 15 days. At the time of admission medical staff of Opposite Party No.3 examined the Complainant and noted that he has weakness of the Left Lower Limb and lost of sensation therein since 15 days. The patient was examined by resident doctor and diagnosed Pes Cavus (deformity of the feet) and weakness of tone and reflexes of the LLL. The MRI scanning reports of the Complainant showed that the Intervertebral Spinal Disc was compressing the Spinal Cord. Under the instructions from Opposite Party No.1, Dr. M.A. Khan examined the Complainant and had diagnosed Spinal Cord compression. The Complainant was referred to Opposite Party No.2 a Neurosurgeon who also diagnosed that the patient suffered from Spinal Cord compression, leading to muscle weakness LLL. Patient was operated on 24/10/2001 by Opposite Party No.2 and the Operation Theatre Notes mention that the operation to remove the disc which was compressing the Spinal Cord was successful. The patient was re-evaluated post-operatively on 27/10/01 and that time improvement was noted. The patent was advised different exercises, medicines and other follow-up measures to be taken in the immediate future and he was discharged from the hospital on 02/11/2001. In the discharge summery it is stated that “much improved strength in both LL post surgery. Sensory loss has also improved. Follow-up after 2 weeks in Consulting Room”.
24) It is submitted that the complaint is barred by law of limitation. Opposite Party has denied the allegations of medical negligence, deficiency in service and of unfair trade practice.
25) Opposite Party No.3 has denied all the allegations made in the complaint. Further Opposite Party No.2 has denied the Complainant’s claim for compensation and cost of this proceeding, submitting that the Complainant has not adduced any independent evidence to prove the allegations. It is contended that allegations made by the Complainant are false and frivolous and therefore, complaint deserve to be dismissed with cost.
26) During pendency of this proceeding on 08/04/05, the Complainant made an application to refer the matter to the Government expert for opinion. This application was opposed by the Opposite Parties. This Forum on 08/04/05 vide order dtd.16/07/07 allowed the application and directed the Complainant to provide copies of all the medical report on which he relied upon as his evidence within 2 days. The Registrar was directed to send all the material medical reports/papers to Civil Surgeon, G.T. Hospital, Mumbai, within 7 days. The Civil Surgeon, G.T. Hospital was requested to submit experts’ opinion to this Forum on the basis of medical case papers. The Complainant accordingly submitted all relevant medical papers and the said case papers were sent to the Civil Surgeon of G.T. Hospital. On 11/10/07, G.T. Hospital has submitted experts’ opinion. Opposite Parties have also filed affidavit of evidence. The Complainant has filed written argument. The Complainant thereafter filed the application to obtain 2nd experts opinion. The Complainants application was apposed by the Opposite Parties. Application for obtaining 2nd experts opinion was rejected. Opposite Parties have also filed written argument. Heard Ld.Advocate Mukesh Pabari for the Complainant and Ld.Advocate Mr. S.B. Prabhavalkar for the Opposite Party No.1 & 2 and the complaint was closed for order.
27) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved medical negligence, deficiency in service or unfair trade practice on the
part of Opposite Party No.1 to 3 ?
Findings : No
Point No.2 : Whether the Complainant is entitled for compensation and cost of this proceeding as claimed ?
Findings : No
Reasons :-
Point No.1 :- Following points are undisputed facts. According to the Complainant he was suffering from low backache, difficulty in defecation and micturition, weakness in left low limb and so in the month of September, 2001 he consulted Opposite Party No.1 in the private consulting room of Prince Alikhan Hospital of Opposite Party No.3. It is admitted fact that after examination of the Complainant, Opposite Party No.1 recommended MRI scanning of the lumbar spine and Urodynamic study of bladder function. MRI Lumbo Sacral Spine was done on 12/10/2001 by the Complainant at Breach Candy Hospital and it showed large L4 L5 sequestrated the disc fragment locked in the central canal and left lateral recess of L5 vertebra and upper sacral recess, compressing the cauda equine. The Complainant was admitted in the Opposite Party No.3 Hospital on 17/10/2001 and he was under care of Opposite Party No.1. On 24/10/2001 the Complainant was operated in Opposite Party No.3 by Opposite Party No.2-Dr. U. Vengsarkar. The Complainant was discharged from hospital on 02/11/2001.
According to the Complainant, after discharge from the hospital his condition was deteriorated and caused server complications such as, difficult to stand, difficulty for 5 minutes, continuous back ache, difficulty in passing urine and motion, weakness and loss of sensation in his left leg, 3 fingers of right leg and heel and also on the sitting areas, and such symptoms were not present before the operation. It is alleged by the Complainant that due defective treatment and operation conducted by Opposite Parties his condition was deteriorated. He has alleged deficiency in service, medical negligence and unfair trade practice on the part of Opposite Parties and therefore, he has filed this complaint.
It is contention of the Opposite Party that complaint is not filed within the prescribed period of limitation under Sec.24(A) of the Consumer Protection Act, 1986 and therefore, complaint deserves to be dismissed. It is to be noted that alongwith complaint the Complainant had filed an application for condonation of delay. On 19/03/04 aforesaid application was allowed by this Forum and delay that was caused in filing of this complaint was condoned. The Opposite Parties have not challenged aforesaid order passed by this Forum. Therefore, Opposite Parties cannot raise contention that the complaint is barred by law of limitation.
As mentioned above as per the Complainant, due to medical negligence, deficiency in service while conducting his operation at Opposite Party No.3 Hospital his condition was deteriorated. Opposite Parties in their written statement had denied the allegation of medical negligence, deficiency in services or of unfair trade practice. The Opposite Parties have raised contention that the Complainant has not adduced any independent evidence or expert’s opinion to support the allegations of medical negligence or deficiency in service made in the complaint. It is submitted that Opposite Party No.1 & 2 are renowned doctors. Opposite Party No.3 is a well equipped and reputed hospital. According to the Opposite Party utmost care was taken while treating the Complainant. It is submitted that the Complainant has made false allegations that after operation his condition was deteriorated.
It is submitted by the Ld.Advocate Mr. S.B. Prabhavalkar that when the Complainant was examined by Opposite Party No.1 that time Complainant had sever backache and number of problems which are stated by the Complainant himself in his written argument. It is submitted that after operation re-evaluation was done on 27/10/01 and that time considerable progress was noticed. It is contended that assuming without admitting that desire result of operation was not achieved as per the expectation of the Complainant the same cannot be construed as deficiency in service on the part of Opposite Party. In support of his contention Ld.Advocate for the Opposite Party has relied upon decision of the Hon’ble Nation Commission in the matter of Dr. N.T. Subramanian V/s. V. Krishnarao, reported in 1986-96 NC & SC on Consumer Cases Vol. II page 2350.
In this case in view of allegations made by the Opposite Parties in their respective written statement that there is no independent experts’ evidence to support allegations made by the Complainant, the Complainant on 08/04/2005 made an application to sent medical case papers to Government Expert for opinion. The Complainant’s application was opposed by the Opposite Parties. After hearing both the parties this Forum by an order dtd.16/07/07 directed the Complainant to produce copies of all medical case papers/reports on which he relied upon as his evidence before this Forum and the Registrar was directed to send copies of medical reports/case papers to the Civil Surgeon, Sir. Gokul Das - G.T. Hospital, Mumbai. Accordingly all relevant case papers/medical reports were sent to the Civil Surgeon - G.T. Hospital, Supdt. Gokuldas Tejpal Hospital by dtd.11/10/2007 has submitted report of the experts’ to this Forum. Relevant portion of the report runs as under –
“Mr.Arif AbulLadi Parpia was examined at G.T. Hospital, Mumbai-1 by specialist and also by experts in of J.J. Hospital, Mumbai. As per Neurosurgeon’s opinion it appears that rediculopathy has not shown any improvement inspite of decompressive Surgery and the progers in his Symptomotology may be due to the post operative fibrosis.
Post operative fibrosis is a common and normal Phenomenon. It does not appear to be negligence on the part of operating doctors and post operative care.”
It is clear from the aforesaid opinion that the Complainant was examined at G.T. Hospital, Mumbai by specialist and also by expert of J.J. Hospital at Mumbai. Neurosurgeon has given his opinion. According to the Complainant that experts’ opinion submitted by G.T. Hospital is bias. We do not find substance in the aforesaid allegations made by the Complainant. On the contrary in the experts opinion it is clearly stated that post operative fibrosis is common and normal phenomena. It does not appear to be negligence on the part of Opposite Party doctors and post operative care. Therefore, in view of this aforesaid independent expert’s opinion, we hold that the Complainant has failed to prove deficiency in service or medical negligence or unfair trade practice on the part of Opposite Party No.1 to 3. Hence, we answer point no.1 in the negative.
Point No.2 :- The Complainant has failed to prove allegation of medical negligence or deficiency in service or unfair trade practice against Opposite Parties. Therefore, the Complainant is not entitled to any compensation or cost of proceeding. In the result we answer point no.2 in the negative.
For the reasons discussed above, the complaint deserves to be dismissed hence, we pass following order -
O R D E R
i.Complaint No.78/2004 is dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the party.
