Haryana

Yamunanagar

CC/1130/2012

Sukhdev Raj S/o Kartara Ram - Complainant(s)

Versus

Dr.Deepan Jain Hospital - Opp.Party(s)

S.L.Dhiman

29 May 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 1130 of 2012

                                                                                    Date of institution: 18.10.2012  

                                                                                    Date of decision: 29.05.2017

 

Sukhdev Raj, aged about 50 years, son of Shri Kartara Ram, resident of village House no.28-B, Chopra Garden, Yamuna Nagar.

 

          …Complainant.

                                                            Versus

1. Dr. Deepan Jain of Jain Hospital, Near District Court, bye pass road, Sector-17 HUDA Jagadhri, District Yamuna Nagar.
2. Oriental Insurance Company Limited, Yamuna Nagar through its Manager. (Policy No.261700/48/2011/3328 valid from 19.10.2010 to 18.10.2011.

 

                                                                                                                 …Respondents.

BEFORE:       SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

                        SMT. VEENA RANI SHEOKAND……………… MEMBER

 

Present:          Shri SL Dhiman, Advocate for complainant.

                        Shri Rameshwar Singh, Advocate for OP No.1.

                        Shri Rajiv Gupta, Advocate for OP No.2.

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

 

1.                       The present complaint has been filed under section 12 of the Consumer Protection Act. 1986 amended upto date.

2.                 Brief facts of the complaint, as alleged in the complaint, are that complainant slipped and fell down in his bathroom on 22.10.2010 and suffered fractures in the wrist of his left hand due to which complainant went to the hospital of the respondent No.1 (hereinafter referred as OP No.1 doctor) on the same day and the OP No.1 doctor advised the complainant for operation of his wrist and assured that wrist would be in the same position as it was before fracture within three (3) months. The OP No.1 doctor operated wrist of the complainant on 23.10.2010 and inserted three (3) pins in the wrist. After the operation, the complainant made a complaint to the OP No.1 doctor about the pain and swelling in the wrist but the OP No.1 doctor told that there would not be pain or swelling in wrist after some days. After 15 days of the operation, the OP No.1 plastered the left hand of the complainant but the pain and swelling not reduced. After, 62 days, the plaster was removed but even after removal of the plaster there was pain and swelling in his left hand for which he complained to the OP No.1 doctor but again OP No.1 doctor assured that the pain and swelling would be reduced after sometime. The complainant remained as indoor patient in the hospital of the OP No.1 from 22.10.2010 to 26.10.2010 and as outdoor patient from 27.10.2010 to 27.12.2010. On 27.10.2010, the OP No.1 doctor refused to give further treatment by saying that no further recovery is possible. The OP No.1 doctor charged more than Rs.30,000/- from the complainant, besides this complainant spent Rs.20,000/- on medicines etc. It has been further mentioned that on 21.12.2010, complainant went to Dr. Mahavir Goel, Jagadhri who diagnosed the left hand’s wrist of the complainant and seen the treatment of the OP No.1 after charging his fee and prescribed the medicines to be taken for 10 days. The complainant consumed these medicine only for 2 days as he could not feel any relief. Thereafter, the complainant went to Dr. Ramesh Kumar Mahajan, Yamuna Nagar on 23.12.2010 and 04.01.2011 he went to the Dr. DK Bansal, Yamuna Nagar and after that he went to Dr. Rajesh Saini, Jagadhri on 12.01.2011 and after that on 13.01.2011 the complainant went to Dr. KD Sharma, Ambala Cantt. and after that on 18.01.2011 complainant went to doctor Vinod Singal and all the above noted doctors after charging their fees and seeing the treatment record of the OP No.1 doctor Deepan Jain prescribed the medicines and also advised him to consult any physiotherapist. Accordingly, the complainant got his physiotherapy conducted at Waryam Singh Hospital,Jagadhri Road, Yamuna Nagar and Nitya Physio clinic upto 01.06.2011. After physiotherapy 60% swelling of the left hand of the complainant was reduced but there was no relief in the pain. Dr. Vinod Singal told the complainant that conditions of the wrist of the left hand of the complainant cannot be recovered any more. Thereafter, the complainant went to Dr.Mukesh Jain at Muzaffar Nagar(UP)  who diagnosed the wrist of the complainant after charging his fee and told  him that complainant would have to spent more than 2 lacs on the operation of his wrist as the bone of the wrist are  not rejoined properly. It has been further mentioned that all the doctors except the OP No.1 doctor opined that there was no necessity to operate the left hand’s wrist of the complainant as there was no external injury and they told the complainant that after adjustment of the bone of the wrist, the left hand would have to plastered. The bone would be rejoined within 2 months and there was no necessity to operate and to insert the pins in the wrist. Lastly it has been stated that complainant has spent more than Rs.3 lacs due to the defective and negligent treatment of OP No.1. Further it has also been mentioned that complainant got himself checked from Board of the Doctors at Civil Hospital, Yamuna Nagar but after examining the wrist of left hand of the complainant had issued 30% permanent disability certificate to him. Lastly prayed for directing the OPs to pay Rs.10 lacs on account of operation fee, medicine, loss of income, mental agony tension and harassment etc and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OPs appeared and filed their written statement separately. OP No.1 appeared and filed its written statement taking some preliminary objections such as complainant is not maintainable; complainant has not approached this Hon’ble Forum with clean hands; complainant has not furnished the report of expert or orthopedican to prove his complaint. The  present complaint is totally false, baseless which has been synthesized on the basis of unscientific laymen conjectures, misbelieves, assumptions and presumptions, where it is a fact that the complainant has no knowledge in the orthopedic field; no specific, scientific and justified allegations in regard to negligence in the treatment has been made by the complainant; OP No.1 doctor  has more than 20 years experience as orthopedic surgeon and there is no negligence on the part of the OP No.1 doctor. Rather the complainant was himself negligent and has not properly followed the instructions and advise of the hospital given to him at the time of discharge. The complainant has not taken the care of operated left wrist; complainant is bad for mis joinder and non jonider of necessary parties as OP No.1 doctor was insured with Oriental Insurance Company Limited for the relevant period; in the present case, no guarantee or achieving cent percent positive results was ever given by the OP No.1 doctor to the complainant. However, in this case the treatment in question was perfectly in benefits of the patient and on merit it has been admitted that complainant was admitted with alleged history of fall and he was suffering of fracture distal radius left. Accordingly, he was operated on 23.10.2010 under brachial block. Close reduction and k-wire fixation under C-Arm image intensifier was carried out. POP caste was applied. Post operative period was satisfactory and was discharged on 26.10.2010. The complainant was followed up subsequently in OPD and finally POP and K wire were removed on 18.12.2010. During his follow up after discharge, the patient was asked for exercises of hand and was explained that the pain and swelling would subside with the exercises/physiotherapy. Compliance regarding exercises were inadequate and patient was repeatedly motivated to carry out exercises as directed to get relief from pain and swelling. The complainant/patient lastly visited to the office of the OP NO.1 doctor on 27.12.2012. On that day also the patient was advised analgesics for pain relief and exercises. The patient was charged Rs.16,600/- from the date of admission till discharge on account medicines implants, physiotherapy, lab charges, hospital charges, investigation charges, bed charges and operation fees and OT charges. It has been further mentioned that all the other doctors i.e. Dr. Mahavir Goel, Dr. Bansal and Dr. Saini, Dr. KD Sharma have prescribed physiotherapy and analgesics to the complainant which shows that there was inadequate efforts on the part of the patient to carry out exercise/ physiotherapy himself. Even, the complainant has himself admitted in para no.4 of the complaint that after physiotherapy, 60% swelling was reduced, this fact also substantiates the case of the OP doctor. The residual deformity is also result of delayed exercise/ physiotherapy and due to inadequate efforts on the part of the complainant to carry out these exercises immediately after removal of the POP cast and k-wire. Lastly prayed for dismissal of the complaint as there was no medical negligence on the part of OP No.1 doctor.

4.                     OP No.2 also appeared and filed its written statement beside some preliminary objection, it has been stated on merit that treatment given to the patient by the OP No.1 doctor was as per medical standards and techniques and there was no medical negligence on the part of the OP no.1. However, it has been admitted that Dr. Deepan Jain was insured with the with the OP Insurance Company through indemnity policy bearing No.261700/48/2011/3328 valid from 19.10.2010 to 1810.2011 for a sum of Rs.10 lacs and lastly prayed for dismissal of the complaint.

5.                     In support of his case, complainant tendered into evidence his two affidavit Annexure CX and CY, photocopy of prescription of issued by the OP No.1 doctor as Annexure C-1, along with treatment record as Annexure C-1 to C-8 and photocopy of OPD slip of Goel Hospital as Annexure C-9, photocopy of OPD Slip issued by Mahajan Hospital as Annexure C-10, photocopy of OPD slip as Bansal Hospital as Annexure C-11, photocopy of OPD Slip of Saini Hospital as Annexure C-12, photocopy of OPD slip of KD Hospital as Annexure C-13, photocopy of medical bills as Annexure C-14 to C-80, photocopy of disability certificate as Annexure C-81 and closed h is evidence.

6.                     On the other hand, OP No.1 tendered into evidence his affidavit as Annexure RW/A; affidavit of Dr. Mahavir Goel as Annexure RW/B and closed his evidence. Learned counsel for the OP No.2 Oriental Insurance Company Limited also tendered into evidence affidavit of Shri Gurmej Singh, Dy. Manager, Oriental Insurance Company as Annexure RW/A and copy of insurance policy as Annexure R-1 and closed the evidence on behalf of OP no.2.  

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

8.                     The only version of the complaint is that he slipped and feel down in his bathroom on 22.10.2010 due to which he suffered fracture in the wrist of his left hand for which visited the hospital of OP No.1 on the same day and Op No.1 doctor operated the wrist of the complainant on 23.10.2010 and inserted three (3) pins in the wrist and after 15 days of the operation, the OP No.1 doctor plastered the left hand of the complainant. After the operation, the complainant made a complaint so many times to the OP No.1 doctor about the pain and swelling in the wrist but the OP No.1 doctor  firstly assured the complainant that the pain and swelling would be reduced after some time but ultimately refused to give further treatment upon which he visited so many doctors i.e. Dr. Mahavir Goel, Dr. RK Mahajan, Dr. DK Bansal, Dr. Rajesh Saini and Dr. Vinod Singhal etc. who diagnosed the left hand wrist of the complaint and after seeing treatment record of the OP No.1 doctor advised the complainant for physiotherapy  and also told that there was no need to operate and insert pins in, the left hand’s wrist of the complainant as there was no external injury and after some adjustment of the bones of the writst. The left hand would have to be plastered. Lastly, it has been argued by learned counsel for the complainant that due to the wrong treatment given by the OP No.1 doctor, the complainant has spent more than Rs.3 lac on his treatment and bones of the wrist were also not rejoined properly due to which complainant has suffered permanent disability to the extent of 30%. Lastly, prayed for acceptance of the complaint. Counsel for the complainant referred the case law titled as “ L.K. Indnani (DR.) Vs. Indraprastha Apollo Hospital, IV )2008) CPJ 491, Vol. IV. Page No.491, V.Krishnakumar Vs. State of Tamil Nadu and others 2015(3) Civil Court cases 557 (SC) Page No.557, Dr. Mukesh Khare & Ors. Vs. State of U.P. and Anr, 2006(3) Criminal Court Cases 736 (Allahabad), Page No.736 and A. Srimannarayana Vs. Dasari Santakumari and Another, 2013(2) Civil Court Cases 244 (S.C.) wherein it has been held here as under:

Consumer Protection Act, 1986, Ss.17 and 21. Medical negligence- Consumer complaint – Opinion of an expert before registration of a consumer complaint is not required- Requirement of opinion of an expert as observed in Jacob Mathew case is limited only with regard to prosecution of doctors for the offence under Section 304-A IPC.

9.                     On the other hand, learned counsel for the OPs argued at length that a false and manipulated complaint has been filed just to extract the money from the OP No.1 doctor. Learned counsel for the OP No.1 doctor argued that the complainant has totally failed to place on file any report of expert/opinion of Board of Doctors to prove that there was any medical negligence on the part of the OP No.1 doctor. Learned counsel for the OP No.1 doctor further argued that even all the other doctors from which the complainant had obtained opinion, is nowhere mentioned that there was any medical negligence on the part of treating doctor i.e. OP No.1. Whereas all the doctor recommended for physiotherapy only. Learned counsel for the OP No.1 doctor draws our attention towards the OPD slip dated 27.12.2010 (Annexure C-8) in which the complainant was advised to get the exercise along with some medicines. Lastly, learned counsel for the OP No.1 referred the case law titled as “ Martin F.D. Souza Versus Mohd. Ishfaq, 2009(1) Supreme Court Cases Criminal 958” and “Kusum Sharma and Others Versus Batra Hospital and Medical Research Centre and Ors., AIR 2010 (SC), 1050” and lastly prayed for dismissal of the complaint.

10.                   After hearing both the parties and going through the case law referred by the parties, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of the OP No.1 doctor as we have gone through prescription slips/OPD slips issued by Dr. Mahavir Goel of Goel Hospital, Dr. RK Mahajan, Mahajan Hospital, Dr. DK Bansal, Bansal Hospital and Dr. Rajesh Saini, Saini Orthopedic Centre, Dr. KD Sharma of KD Hospital (Annexure C-9 to C-13) and in all these OPD slips concerned doctors prescribed the exercise through physiotherapy to the complainant and not a single iota of the word has been mentioned by the said doctors regarding medical negligence on the part of the OP No.1 doctor. Keeping in view the nature of the injury and nature of operation performed it was imperative for appointment of medical board to reach to the right conclusion. Even, during the pendency of present complaint no application was moved by the complainant for appointment of the Board for examining any expert in the matter. The complainant in the complaint has mentioned that he was examined by many other doctors after the opposite party and gave their opinion that there was negligence on the part of the OP No.1 doctor in performing the operation. In para no.5 of the complaint, it is mentioned that all the doctors except OP No.1 doctor opinioned that there was no necessity to operate the left hand’s wrist of the complainant as there was no external injury and there was only fracture in the left hand’s wrist of the complainant and they told to the complainant that after adjustment of the bone of the wrist left hand would have to be plastered and there was no necessity to operate and to insert the pin in the wrist. We have gone through the records i.e. OPD Slip issued by all the doctors (Annexure C-9 to C-13) placed on file but there is no such mention of any negligence on the part of the OP no.1 doctor in the performance of the operation or treatment.

11.                   Hon’ble Supreme Court in case titled as “ Martin F.D. Souza Versus Mohd. Ishfaq, 2009(1) Supreme Court Cases Criminal 958” has held that Courts and Consumer Fora are not experts in medical science and therefore, they should not substitute their own views over that of specialists and in another case titled as “Kusum Sharma and Others Versus Batra Hospital and Medical Research Centre and Ors., AIR 2010 (SC), 1050” held that surgery performed for removal of abdominal tumor-Procedure adopted by doctor performing surgery supported by expert opinion- Negligence cannot be attributed to doctor- Medical professionals re not to be unnecessarily harassed or humiliated so that they can perform their duties without fear and apprehension. Malicious prosecution against medical professionals/hospital for extracting uncalled for compensation- Not maintainable.

12.                   In the present case also the complainant has totally failed to place on file any expert report or opinion to prove any medical negligence on the part of the OP No.1 doctor. And further complainant has himself admitted in his complaint that after doing physiotherapy 60% swelling had been reduced. Meaning, thereby that there was lapse on the part of complainant himself as he has  failed to follow up the advice of the doctor for doing exercise. The case law referred by counsel for complainant is not disputed but every case has its own facts.

13.                   Resultantly in the circumstances noted above and after going through the case law referred by the counsel for the OP titled as “Martin F.D. Souza Versus Mohd. Ishfaq, 2009(1) Supreme Court Cases Criminal 958” and “Kusum Sharma and Others Versus Batra Hospital and Medical Research Centre and Ors., AIR 2010 (SC), 1050” (Supra), we are of the considered view that there is no deficiency in service or medical negligence on the part of the OP No.1 doctor. Hence, the present complaint is hereby dismissed accordingly. No order as to cost. Copies of this order be supplied to the parties concerned as per rules. File be consigned to the record room after due compliance.

Pronounced in open court: 29.05.2017.

 

 

                                                                                     ( ASHOK KUMAR GARG)

                                                                                     PRESIDENT  

                                                                                     DCDRF,YAMUNANAGAR                                                                                                                                                            

                

                        (VEENA RANI SHEOKAND)          (S.C.SHARMA)

                         MEMBER                                            MEMBER