Haryana

Ambala

CC/359/2017

Ratan Lal - Complainant(s)

Versus

Dr. S.K. Dhawan - Opp.Party(s)

Ramesh Achint

25 Jul 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.: 359 of 2017.

                                                          Date of Institution         :  26.10.2017.

                                                          Date of decision   :  25.07.2019.

 

Sh. Ratan Lal s/o late Rulda Ram, R/o VPO Kanwla (Kaula), Ambala City.

 

                                                                                       ……. Complainant.

                                                     Versus

 

1. Dr. S.K. Dhawan, M.S. Ortho (AFMC), O/O Dhawan Orthopaedic Hospital, Arya Nagar, Jagadhri Road, Ambala Cantt.
2. Dhawan Orthopaedic Hospital, Arya Nagar, Jagadhri Road, Ambala Cantt. Through its Managing Director/Proprietor.
3. M/s The New India Assurance Company Ltd., 87 MG Road, Fort, Mumbai.

 

               ..…. Opposite Parties.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.                 

                            

Present:       Shri Ramesh Achint, Advocate, counsel for complainant.

Shri H.S. Garg, Advocate, counsel for OPs No.1 & 2.

Shri Mohinder Bindal, Advocate, counsel for the OP No.3.   

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To replace the Implant with a new one or to refund Rs.1,10,000/- paid by the complainant vide bill dated 08.09.2017 for the Implant.
2. To pay Rs.15,00,000/- as general and special damages for physical & mental pain suffering by him and cost of travelling etc.
3. To pay Rs.11,000/- as litigation expenses.
   382.  

Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that OP No.2 is running the hospital in the name and style of Dhawan Orthopaedic Hospital, centre for advanced orthopaedic Surgery & Fracture Management and Spinal surgery, arthroscopy, Joint Replacement surgery and OP No.1 is the main surgeon and senior doctor in the said hospital. On 09.09.2015, the complainant met with an accident and admitted in OP No.1 hospital and OP No.1 gave the opinion that his hip had been fractured and suggested the surgery of hip by adding implants with the assurance that operation will be 100% successful if implants surgery has been done. On their assurance, he made the surgery in the hospital of OP No.1 and paid Rs.38,500/- for surgery and more than Rs.12,000/- for medicine. Thereafter, he visited the hospital for treatment for pain in the hip and OP No.1 gave the treatment and medicine and suggested for X-ray and assured that it will be recovered soon. The complainant regularly visited the OPs No.1 & 2, but no positive result came out, as pain in his hip was continue and got increased day by day and now he is not able to walk himself without the handling strature and became handicap from that leg. On 22.02.2017, the complainant again visited the OPs No.1 & 2 and the OP No.1 advised him for Implant Removal and for second implants surgery costing Rs.1,10,000/-. Thereafter, he took the opinion on the problem of hip on 23.03.2017 from the C. Lall Hospital, who suggested for implants surgery. On 25.04.2017, the complainant also took opinion from the M.M. Institute of Medical Science & Research, M.M. Superspeciality Hospital, Mullana, Ambala Haryana Govt. & ECHS empanelled vide UHID No.UD-170328732 and OP No.OP-1704251364 and they suggested for implants & total hip replacement surgery. The OPs No.1 & 2 made his wrong treatment/surgery and grab the money from him in the name of Implant Surgery and medicine and now, OP No.1 advised him for implant removal and second surgery. On 08.09.2017, he took the advise from the Rotary Ambala Cancer and General Hospital, Ambala Cantt. vide OPD receipt No.222672 and they suggested THR (L) and surgery of the Hip costing Rs.1,10,000/-. The complainant sent a registered AD legal notice dated 14.09.2017 to the OPs No.1 & 2, but they neither gave the reply to said legal notice nor taken any action regarding the treatment. Due the medical negligence of the OPs No.1 & 2, the implant got failed, hence, the present complaint.

2.                Upon notice, OPs No.1 & 2 appeared through counsel and filed written version regarding preliminary objections regarding maintainability; time barred; cause of action and non-joinder of necessary parties. It is further submitted that on 09.09.2015, patient Ratan Lal sustained inter-trochanteric facture hip due to his own negligence. Everything bad happened due to the original injury which led to the hip fracture. He was admitted on the same day and advised surgery of dynamic hip screw (DHS) as per the standard medical norm. No guarantee warrantee or any assurance was given to the patient written or verbal, as no surgery is 100% foolproof. Doctor can only give reasonable assurance for medical care (nor for cure) within medical limits to the patient. Patient party was duly informed that any kind of complication common to surgical statistics is possible including surgical complication such as infection, non-union, implant failure and medical complications such as deep vein thrombosis, chest and cardiac complications and other secondary co-morbidities such as secondary osteoarthritis of Hip over which surgeon or surgery has no direct influence or control. Patient was operated diligently prudently on 10.09.2015 well under correct orthopaedic principles with correct implant placement, as per standards medical norms. Patient was discharged on 13.9.2015 in an improved and satisfactory condition. Patient was reasonably comfortable as per level of injury and treatment and pain, if at all, it was commensurate to nature of injury, treatment and level of activity and age. On 22.02.2017, after 1½ years of the original surgery, when the patient was reviewed, secondary osteoarthritis of Hip was noticed, which is known late complication of the fracture itself and not a complication of the surgery or the surgeon per se. As per X-ray done on 22.02.2017, the fracture was healed properly and implant was intact. As such, complainant was advised for implant removal and for total hip replacement. There is no medical negligence on the part of the OPs No.1 & 2, because the surgery was conducted with due care and diligence by the well qualified doctor as per medical norms. There is no negligency on the part of the Ops No.1 & 2 and prayer has been made for dismissal of the present complaint.

                   However, when the case was fixed for filing written version by the OPs No.1 & 2, then OPs No.1 & 2 filed an application for impleading the insurance company as OP in the array of parties. Ld. counsel for the complainant has given no objection on the said application. As such, the application was allowed and insurance company was impleaded as OP No.3 in this case, who also filed written version stating therein that this Forum has no jurisdiction to entertain and try the present complaint as the disputes involves the determination of complex and number of complicated issues, laws and facts that cannot be decided in the absence of expert, as such, only the civil court has jurisdiction in the matter; that the present complaint is also not maintainable as the same has been filed without any cause of action; that the present complaint has not supported by any expert report or opinion to prove any negligency being caused in the alleged treatment of complainant on the part of treating doctor; that the complainant has not approached this ld. Forum with clean hands and suppressed the true and real facts; that there is no relationship of consumer between the parties; that the OP No.3 denies the liability under the alleged policy till the supply of the copy of alleges insurance policy and its confirmation from its issuing office; that the OP No.3 accepts the written statement filed by the OPs No.1  & 2 with regard to the alleged treatment provided to the complainant and same be read as part of this written statement.                  

3.                The ld. counsel for the complainant tendered affidavit of complainants as Annexure CW-3/A alongwith documents as Annexure C-7 to C-12 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs No.1 & 2 tendered affidavit of OP No.1 as Annexure RA alongwith the documents Annexure R1 to Annexure R2 and closed the evidence on behalf of OPs No.1 & 2. The ld. counsel for the OP No.3 tendered affidavit of Rajiv Singal, Sr. Divisional Manager & Authorized signatory, the New India Assurance Co. Ltd., Ambala Cantt as Annexure RX and closed the evidence on behalf of OP No.3. However, it is pertinent to mention here that during the pendency of the case, on 16.08.2018, ld. counsel for the complainant moved an application for summoning the witnesses and the same was allowed. Accordingly, Dr. Rajiv Gupta, Assistant Professor, Orthopaedic Deptt. MMIMSR, Mullana, Dr. Tushar Gupta, Orthopaedic Surgeon Rotary Ambala Cancer and General Hospital, Ambala Cantt. And Dr. K.K. Gandotra, C. Lall Hospital, Ambala Cantt. were examined.   

4.                We have heard the learned counsel for parties and carefully gone through the case file.

5.                The learned counsel for the complainant has argued that the hip implant surgery of the complainant was not done properly by the OPs, as a result of which, he was suffering from pain and got handicapped, because of non-working of his leg. He visited the OPs with this problem, the OP No.1 advised him for removal of implant and for second implant surgery. Thereafter, he took the opinion from the expert doctors of the M.M. Institute of Medical Science & Research, M.M. Superspeciality Hospital, Mullana, Ambala, which is the empanelled hospital of Government of Haryana, who suggested for implants and for total hip replacement surgery. Since due the medical negligence of the OPs No.1 & 2, the implant got failed, therefore, they may be directed to replace the implant with the new one free of costs or to refund Rs.1,10,000/-, the amount paid by the complainant for the surgery. They may also be directed to pay the compensation on account of mental agony and physical harassment suffered by him.

6.                On the contrary, the learned counsel for the OPs No.1 & 2 has argued that there is no medical negligence on the part of the OPs No.1 & 2, because the surgery was conducted on 10.09.2015 with due care and diligence by the well qualified doctor as per medical norms and was discharged in satisfactory condition on 13.09.2015. On 22.02.2017, when the complainant came approximately after 1½ years of surgery for check-up, then Secondary Osteoarthritis of Hip was noticed, which is a known late complication of the fracture itself and not a complication of the surgery. As per X-ray done on 22.02.2017, the fracture was healed properly and implant was intact. As such, complainant was advised for implant removal and for total hip replacement. There is no medical negligence on the part of the OPs No.1 & 2, because the surgery was conducted with due care and diligence by the well qualified doctor as per medical norms. The said fact got fortified from the expert report 20.05.2019, furnished by the panel of experts in the field of Orthopaedic, so constituted by the Director, PGIMS, Rohtak, in compliance of the order dated 20.05.2019 passed by this Forum. From that expert report, it is clear that there is no negligence on the part of OPs No.1& 2, therefore, the complaint filed against them, may kindly be dismissed.

7.                 The ld. counsel for the OP No.3 has argued that from the expert report dated 20.05.2019 given by the panel of expert doctor of PGIMS, Rohtak, it is quite clear that there is no medical negligency on the part of the OPs No.1 & 2. Since there is no medical negligence on the part of OPs No.1 & 2, therefore, question of indemnification does not arise at all and the complaint filed against it, be dismissed with special cost.

8.                Admittedly, the OPs conducted the hip implant surgery of the complainant. The plea of the complainant is that the hip implant surgery was not done properly by the OPs, as a result of which, he was suffering from pain and got handicapped, because of non-working of his leg. On the other hand, the stand of the OPs is that the hip implant surgery of the complainant was done properly by the well qualified orthopaedic doctor with due care and diligence, as per medical norms. Since it is a case of medical negligence, therefore, in order to resolve the controversy, involved in the present case, in just, fair and proper manner, this Forum preferred to seek opinion of medical experts specialized in the field of Orthopaedics. Accordingly, vide order dated 28.03.2019, the medical experts opinion of doctors specialized in the field of Orthopaedic, from PGIMS, Rohtak, was called and a report dated 20.05.2019 was furnished by the said experts, which is marked as ‘X’. From the perusal of expert report dated 20.05.2019, it is evident that the experts have opined that the treating doctor followed standard treatment protocol in management of such cases and the complications thereof are as mentioned in the standard literature as outcome of such cases. From the said experts report, it is apparent that the OPs No.1 & 2 have not committed any medical negligence while conducting the surgery of the complainant. Even the doctors, who were summoned by the complainant as witnesses, have not said in their statements that there is any medical negligence on the part of the OPs. No other document has been placed on record by the complainant to establish that there is any medical negligence on the part of the Ops No.1 & 2. Thus, in the absence of any documentary evidence specially in view of the report of the medical expert committee, we hold that there has been no medical negligence on the part of the OPs No.1 & 2 while performing surgery of the complainant for hip implant and the complaint filed against them is also liable to be dismissed. Since the complainant has failed to prove any medical negligence against the OPs No.1 & 2, therefore the complaint filed against their insurer i.e. OP No.3, is also liable to be dismissed.

9.                In view of the aforesaid discussion, we hereby dismiss the present complaint, being devoid of merits. Parties are left to bear their own cost. Certified copy of this order be supplied to the complainant, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :25.07.2019.

 

 

          (Vinod Kumar Sharma)       (Ruby Sharma)                  (Neena Sandhu)

              Member                            Member                            President