BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.461 of 2016
Date of Instt. 11.11.2016
Date of Decision: 01.08.2017
Balwinder Kaur wife of Shri Surbans Singh, Resident of VPO Hazipur, Tehsil Mukerian, District Hoshiarpur.
..........Complainant Versus
Dr. Pankaj Trivedi, M.Ch (Endoscopic Brain and Spine Surgeon), Neurological Institute of Medical Science Pvt Ltd, #221, Adarsh Nagar, Near Kapurthala Chowk, Jalandhar City.
….… Opposite party
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh, (President),
Sh.Parminder Sharma (Member)
Present: Sh. Amandeep Singh, Adv. Counsel for the complainant.
Sh. Umesh Dhingra, Adv. Counsel for the OP.
Order
Karnail Singh (President)
1. This complaint filed by the complainant, wherein alleged that she was not keeping a good health and she was feeling acute pain in her vertebrae due to fall from cycle during the last year. Complainant intended to get herself medically examined for her proper treatment and it was only on medical examination, X-Ray and MRI from Dr. Lakhwinder Singh of Prabhjot Hospital, Mukerian that she came to know that there is a fracture L1 Vertebrae. After medical examination, the said doctor told the complainant that the fracture suffered by complainant needs operation for which she has to consult some other doctor. That thereafter, complainant approached respondent in his Hospital on 03.08.2015 and she was attended to by the Dr. Pankaj Trivedi, who after going through the medical examination report of complainant clearly opined for immediate operation, but before conducting the operation, respondent told complainant to get done some tests such as ECG, X-Ray, Chest Echo, X-Ray Lumber Spine AP/LT, Hematology, ESR, Blood Group, HIV etc.
2. That according to the requirements, complainant got conducted the above said tests and after going through the test reports, respondent told complainant for operation so as to completely end pain being suffered by complainant in her vertebrae, it was disclosed by respondent that the mode of operation is BI Pedicular Vertebroplasty. That according to respondent, doctor advised and believing that she will be alright after operation, complainant got herself admitted in respondent's hospital on 22.08.2015 and respondent got deposited a sum of Rs.90,000/-. The operation was conducted by respondent doctor on 25.08.2015 but when the operation was in process, the respondent told complainant that there is a difficulty in filling plaster into the vertebrae and there is some advance technology by which the operation can be conducted more effectively but for following the said process, more expenses of Rs.60,000/- are required to be deposited. Since the complainant was not in a position to deposit more expenses, so she showed her helplessness to conduct her operation through new technique, it is pertinent to point out here that when the test reports and other medical history of complainant were gone through by respondent, it was clearly observed by respondent that only operation is the way to treat complainant and the complainant will only have to incur a sum of Rs.90,000/- on the operation, apart from bed charges and medicines etc.
3. That respondent intention has been to put complainant in extreme pain and to cause her wrongful loss, so respondent left the operation in between without fully operating complainant but this fact was not disclosed to the complainant. A total bill of Rs.1,23,407/- was raised by the hospital which was paid by the complainant. That after few days of the operation, complainant felt extreme pain in her back and she approached the respondent doctor on 16.10.2015 to know about the reason of such pain but the respondent told the complainant that since the complainant has gone through the operation few days back so she might be suffering from pain for some days but with the passage of time, the complainant will be feeling herself completely alright and there will be no chance of any pain whatsoever. According to the advice given by respondent, complainant took complete test but she found the problem persisting continuously without there being any improvement at all. Thereafter on 03.11.2015, complainant got herself checked from some other doctor at Mukerian and she came to know that the operation has not been conducted by the respondent as required and the pain is the outcome of non performance of proper operation. The doctor also disclosed to complainant that the problem of complainant will continue to increase with the passage of time if the operation is not made in order. The complainant has suffered a lot at respondent hands as she has to spend huge amount on her treatment as per respondent advice and she has also to incur on medicines as prescribed by respondent. Thus in all complainant has suffered a loss to the tune of Rs.2,00,000/- apart from physical harassment, mental pain, agony and torture due to respondent acts of medical negligence, deficiency in service and unfair trade practice. Complainant is, therefore, entitled to compensation of Rs.2,90,000/- and in all complainant claims Rs.4,90,000/- which includes the medical expenses and also prayed for acceptance of the complaint.
4. Notice of the complaint was given to the OP but despite service, OP did not come present and ultimately OP was proceeded against exparte, vide order dated 28.12.2016. Thereafter, when the case was fixed for exparte argument, the OP filed an application for allowing to join the proceedings, which was allowed but no opportunity was given for filing reply and for recording evidence because the OP was allowed to join the proceedings at the time of argument.
5. In order to prove her case, complainant herself tendered into evidence her duly sworn affidavit Ex.CA alongwith some documents Ex.C1 Medical Reimbursement Certificate, Ex.C2 Detail of Medical Bills issued by NIMS Pvt. Ltd, Ex.C3 Bill dated 22.08.2015, Ex.C4 Bill dated 28.08.2015, Ex.C5 Invoice No.200 dated 29.08.2015, Ex.C6 to Ex.C11 Hospital and Bed Charges, Ex.C12 to Ex.C26 Medicine Bills, Ex.C27 Discharge Summary Report, Ex.C28 and Ex.C29 Medical Reports dated 28.08.2015, Ex.C30 and Ex.C31 Legal Notice and Postal Receipts and then complainant tendered the affidavit of Ashamdeep Singh as Ex.CB and then closed the evidence.
6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
7. After hearing the argument and from scrutiny of the case file, it has become clear that the version of the complainant is that she was having some acute pain in her Vertebrae due to fall from cycle and accordingly, she got herself medically examined for proper treatment and got X-Ray and MRI from Dr. Lakhwinder Singh of Prabhjot Hospital, Mukerian, who informed the complainant that there is a fracture L1 Vertebrae, after medical examination, the doctor told the complainant that the fracture suffered by the complainant needs operation for which she has to consult some other doctor having special knowledge in regard to spine and accordingly, the complainant approached to OP Dr. Pankaj Trivedi, who after conducting the medical examination report clearly opined for immediate operation and also told the complainant to get done some tests such as ECG, X-Ray, Chest Echo, X-Ray Lumber Spine AP/LT etc and she was got admitted in the hospital of OP on 22.08.2015 and accordingly she deposited a sum of Rs.90,000/- as advance money and on 25.08.2015, operation was conducted and while operation was in process, OP doctor told the complainant that there is a difficulty in filling plaster into the vertebrae and there is some advance technology by which the operation can be conducted more effectively but she has to deposit some more amount of Rs.60,000/-, but the complainant is not in position to deposit more amount and accordingly the OP showed her helplessness to conduct her operation through new technique and thereafter total charges of Rs.1,23,407/- was obtained from the complainant and she was discharged but pain remains persistent in her back and she approached even thereafter on 16.10.2015 and doctor gave assurance that after few days the pain will be completely alright but she found the problem persisting continuously without there being any improvement at all and in order to prove that she got the operation from the OP, brought on the file numerous documents i.e. Bill, Discharge Summary Report, Medical Reports, Hospital and Bed Charges as well as Bills and Invoice.
8. On the other hand, the learned counsel for the OP though having no pleading in this case but submitted written arguments, thereby claimed that the OP is Super Specialist in Neuro Surgery having a degree of Mch. from Sanjay Gandhi Post Graduate Institute, Lucknow and also having experience of 15 years in this field and have conducted around more than 8000 Neuro Surgeries. The OP is presently practicing at NIMS Hospital and is commanding good reputation due to his performance having good results, specialization and ethical practice in the medical profession. In fact, the present complaint is liable to be dismissed and further submitted that as per settled principle of law that a medical practitioner cannot be held negligent without expert opinion, in the present complaint there is no expert opinion, the complainant has not placed on record any expert opinion either from a specialist of similar branch or from the medical board constituted by the Government or from the Government Institute in order to substantiate the allegations made in the complaint and further submitted that the complainant Balwinder Kaur was admitted in the hospital on 22.08.2015 as a case of Backache, with history of fall from cycle, around one year before with difficulty in sitting and standing, she went for MRI-CERVICAL SPINE and DORSAL SPINE and LUMBER SPINE from Sigma MRI & CT Scan Centre, Gurdaspur on 10.01.2015, all three region of the Spine scanned even she was having Backache reports are showing Degenerative Changes in Cervical Spine along with Fracture 11 Verterae (VCF) Vertebral Compression Fracture, with Marrow Odema. The patient was having pain at back, MRI Reports showing VCF 11 Vertebrae Fracture with Marrow Oedema. For VCR Fracture of L1 Vertebrae, two procedures are recommended Vertebroplasty or Khyphoplasty. Vertebroplasty can be done up to 12 months old fracture if they are giving pain, both procedures are done under local anesthesia. The patient went for Vertebroplasty. On 25.08.2016, amount of Cement in spite in Upper Tharaco Lumbar Spine is around 3-4 CC (LIT-7) in case of Traumatic Non Osteoprotic Fracture, which are in healing phase and painful, amount of cement may be accepted less by the fractured vertebrae. The patient had been discharged on 28.08.2015, with less backache with a discharge slip along with all Radiology, with a follow up date after 15 days from discharged date, Discharge Card is bearing signature of her attendant namely Ashamdeep Singh. The patient never came on follow up date and 1st time shown him on 16.10.2015. This time, she was having different symptoms like pain in left leg radiating up to heel which is written on the back of discharged slip. The respondent had advised her for X-Ray and MRI along with drugs and a follow up after 4 weeks from 16.10.2015, since then till now the patient never came to show the respondent in follow up and as such there is no negligence or deficiency in service on the part of the OP and therefore, the case of the complainant is not established and as such the same is liable to be dismissed.
9. We have considered the plea taken by the OP and came to the conclusion that in the absence of any pleading, the version of the either party cannot be accepted and similarly in this case, there is no pleading of the OP because the OP has not filed any written reply even for the argument sake, if we considered the plea, taken by OP that there is no expert opinion of the doctor either from the specialist of similar branch or from the medical board but we think that the complainant has herself stated that she got operation from OP on 25.08.2015 and when the operation was in process, the OP told the complainant that there is a difficulty in filling plaster into the vertebrae and there is some advance technology by which the operation can be conducted more effectively, for that the OP demanded further Rs.60,000/-, but here is a clear cut negligence on the part of the OP because when the patient is lying in the operation theater then informed the patient that there is a advance technology, why this techni1nology was not brought to the notice of the complainant, prior to conducting of operation, it is primary duty of the doctor to diagnose the patient very carefully and then made up his opinion whether it can be done with a ordinary technique or by latest technique, it is not a prudent to ask the complainant that the operation in ordinary manner is not possible, it requires advance technology and regarding that demanded more money rather when the patient is lying in the operation theater then it is the duty of the doctor to save the life of the patient in any manner without taking into consideration the any further amount but this allegation of the complainant is not controverted by the OP in any manner. So, under these circumstances, we find that the plea taken by the complainant that there is a negligence on the part of the OP is established because even after operation, the back pain is still persisting, if so then, it is clearly established that the operation was not done by the OP properly and there might be some negligence on his part.
10. So, for the plea in regard to bringing on file any expert opinion of the other specialist of similar branch is concerned as elaborated by OP, is related, for that purpose, we take a liberty to refer a pronouncement of Hon'ble Apex Court, cited in 2010(4) JT 630, title “ V. Kishan Rao Vs. Nikhil Super Specialty Hospital and another, wherein the Lordship held as under “ Medical negligence, claim of petitioners cannot be rejected only on the ground that expert witness was not examined to prove the negligence of the doctor, it is not required to have expert evidence in all cases of medical negligence.”
11. It is further held as under “ Medical negligence, onus to prove, in a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing proves itself, in such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence”.
12. If, we see the case of the complainant in the light of above judgment then it is established that it is the duty of the OP to prove on file that there is no negligence on the part of the OP but the OP has himself not appeared despite service and also not brought on the file any cogent and convincing evidence. So, under these circumstances, we find much force in the submission made by learned counsel for the complainant and therefore, complaint of the complainant is partly accepted and OP is directed to return the total bill amount of Rs.1,23,407/- with interest @ 9% per annum from the date of operation i.e. 25.08.2015 till realization and further OP is directed to pay compensation for harassment and mental agony to the complainant to the tune of Rs.50,000/- and litigation expesens of Rs.10,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. Complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
01.08.2017 Member President
