Haryana

Yamunanagar

CC/629/2012

Amod Singh S/o Amar Bahadur Singh - Complainant(s)

Versus

Dr.Deepan Jain - Opp.Party(s)

Brijesh Partap

26 May 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                     Complaint No.629  of 2012.

                                                                                      Date of institution:13.06.2012

                                                                                      Date of decision:  26.05.2017

Amod Singh son of Shri Amar Bahadur Singh, resident of Sham Sunderpuri Colony, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                           

                                                                                                                     …Complainant.

                                    Versus

1. Dr. Deepan Jain, Orthopeadic Surgeon, O.P. Memorial Jain Hospital, Near Distt. Courts, Sector-17, HUDA, Jagadhri, District Yamuna Nagar.
2. The Oriental Insurance Company Ltd. Branch Office: Opp. Madhu Hotel, Jagadhri Road, Yamuna Nagar, vide policy No. 261700/48/2010/2230, w.e.f. 19.10.2009 to 18.10.2010.

 

                                                                                                                  …Respondents.          

BEFORE        SH. ASHOK KUMAR GARG, PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

                        SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Sh. Brijesh Partap, Advocate, counsel for complainant.   

               Sh. Rameshwar Singh, Advocate, counsel for respondent No. 1.

               Sh. Sanjay Sharma, Advocate, counsel for respondent No.2.

 

ORDER   (ASHOK KUMAR GARG PRESIDENT)

 

1.                     Complainant Amod Singh has filed the present complaint under section 12 of Consumer Protection Act, 1986 amended up to date.     

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant previously in the month of September, 2010 has suffered injuries in a road side accident and he was taken to the Hospital of Op No.1 and after examination of the complainant, the OP No.1 doctor asked him that complainant has suffered fracture of left forearm and implant is to be inserted in forearm by operation. Accordingly, the Op No.1 Doctor conducted the operation and inserted the implants in the fractured forearm and charged Rs. 30,000/- from the complainant. The complainant remained continue as OPD patient with the OP No.1 doctor and the Op No.1 doctor was dressing the forearm of the complainant day to day but there was no improvement in the forearm of the complainant. Upon which, the complainant asked the Op No.1 doctor for the reason that why the injuries were not cured, upon which, the Op No.1 doctor said that the implant is not set properly as it was displaced from its place and the second operation is necessary for setting the said implant and assured that after second operation, the forearm would start working properly. Accordingly, the complainant again became ready for second operation and the Op No.1 doctor conducted the operation and charged Rs. 20,000/- from the complainant and the complainant regularly visited the hospital of Op No.1 as per instructions for dressing of the forearm day to day but even then the injuries/ wound were not cured. Since the complainant remained visiting the Op No.1 and wound was not filled for more than 8 months then the complainant visited Dr. Pardeep Kohli of Kohli Hospital, Jagadhri where the x-ray was conducted and it was found that the drill pin was left by the Op No.1 in the wound while operation, that is why the MAWAD was oozing  from wound and infection is arose in the operation. In the x-ray conducted by Dr. Pardeep Kohli, the drill pin is clearly shown in the forearm of the complainant. Dr. Kohli advised the complainant for other operation for removal of the said drill pin and for cure of the infection. Lastly, it has been mentioned that due to the medical negligence and deficiency in service of Op No.1, the complainant has suffered a lot of mental agony, pain and suffering, besides this approximately Rs. 1,00,000/- were spent on the treatment and prayed for directing the OPs to pay Rs. 3,00,000/- as compensation on account of mental agony, harassment etc. and Rs. 1,00,000/- on account of medical expenses, special diet etc. and also to pay litigation expenses.

3.                     Upon notice, OPs appeared and filed its written statement separately. OP No.1 filed his written statement by taking some preliminary objections such as present complaint is frivolous, vexatious and scurrilous and has been filed just to blackmail and with intention to extort illegal money from the Op No.1 doctor; complainant has not approached this Forum with clean hands; complainant has not furnished the report of expert or orthopedican or Board of doctors to prove his complaint; complainant has approached this forum without any expert report of the subject specialists; the Op No.1 doctor has more than 25 years experience of orthopedic surgeon and there was no negligence on the part of Op No.1 doctor in treatment of the complainant rather the complainant himself was negligent as he has not properly followed the instructions and advise of the hospital given to him at the time of discharge. The complaint of the complainant is not maintainable as the Ops Insurance Company has not been impleaded as party; in the present case, no guarantee for achieving cent percent positive result was ever given by the OP No.1 doctor to the complainant since the procedural complication/ results is a matter of fact and not a matter of speculation. No legal notice was served to the OP No.1 doctor by the complainant and he has approached this Forum directly and on merit it has been admitted that complainant was admitted on 30.07.2010 in the Op No.1 Hospital with alleged history of injury. X-ray examination revealed fracture of both bones of left forearm. He was given first aid and investigated for surgery. Complainant/patient was fully informed regarding need and options of treatment, possible complications of surgery and no guarantee regarding the outcome of the operation and possible complications was given and written consent regarding the same was signed by his brother. The complainant/ patient was operated under brachial anesthesia, open reduction and internal fixation of both bones and forearm was carried out with LC-DCP. Wound was closed in layers and POP splint was applied locally. After that, complainant subsequently remained admitted in the hospital of OP No.1 doctor up to 05.08.2010. However, it has been denied that Rs. 30,000/- were charged from the complainant on account of first operation. At the time of discharge, the complainant was advised regarding “Do” and “Don’t” alongwith medicine and for follow up in OPD for about 6 weeks. The progress was satisfactory after first operation till 3^rd week of the September, 2011, as the complainant came to the hospital of OP on 3^rd week of September, 2011 with deformed left forearm. X-ray examination showed hypertrophic non-union fracture both bones left forearm with loose implants. On enquiry, the complainant told that he started driving bike to pursue his daily work. Due to rotational stress during driving, the implants got loosened leading to non-union and deformity. The complainant was admitted for further management on 27.09.2011 and after obtaining the consent and informing the complications and limitations, the complainant was operated again under brachial block and implants were removed, fractured ends were freshened and the bones were again fixed with LC-DCP. Bone Grafting was also carried out and the patient was discharged with satisfactory progress on 1^st October, 2011. During the post-operative period, the patient developed stitch abscess due to his own negligence of not coming for dressing regularly instead he got his dressing from local practitioner. It has been further mentioned that if the infection persist after the union is complete, the implants can be removed to control the infection, but again the complainant committed fault by not following the advice regarding dressing regularly. The broken drill bit was not left during operation negligently as alleged in the complaint rather during operation drill bit, if broken and not retrievable easily is left inside the bone as a standard protocol to prevent collateral damage to the bone. It has been denied that complainant has spent Rs. 20,000/- at the 2^nd time operation because he was treated under Rastriya Swasthya Bima Yojna and prayed for dismissal of complaint.

4.                     OP No.2 Insurance Company appeared and filed its written statement besides preliminary objections, it has been stated on merit that there was no negligence or deficiency in service on the part of Op No.2. The complainant was himself negligence as he has not followed the procedural law by placing the requisite record and documents as desired by the OPs. Lastly, prayed for dismissal of complaint.

5.                     In support of his case, learned counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and prescription slips issued by Op No.1 doctor as Annexure C-1 to C-3, Prescription slips dated 15.07.2012 issued by Bharat Hospital, Allahabad as Annexure C-4 to C-6, Discharge card issued by Ashutosh Hospital, Allahabad  as Annexure C-7, Prescription slips dated 28.07.2012 of Bharat Hospital, Allahabad as Annexure C-8, OPD slip dated 19.05.2012 issued by Kohli Hospital as Annexure C-9 and Films of X-ray as Annexure c-10 and C-11, Copy of medical bills of hospital as Annexure C-12 to C-28, X-ray film of Kohli Hospital as Annexure C-29 and closed the evidence on behalf of complainant.

6.                     On the other hand, learned counsel for Op No.1 tendered into evidence affidavit of Dr. Deepan Jain as Annexure RW/A, Affidavit of Dr. Pardeep Kumar Kohli as Annexure RW/B and affidavit of Dr.Mahavir Goel as Annexure RW/C and closed the evidence on behalf of OP No.1.

7.                     Learned counsel for the OP No.2 tendered into evidence affidavit of N.K. Goel, Senior Divisional Manager, OIC as Annexure R2/A and document such as attested copy of insurance policy 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 remained admitted in the hospital of OP No.1 from 30.07.2010 to 05.08.2010 due to injury/facture of both bones of left forearm suffered by the complainant in a Motor Vehicular Accident and the Op No.1 doctor conducted the operation of the complainant under brachial anesthesia, open reduction and internal fixation of both bones and forearm was carried out with LC-DCP as these facts have been admitted by Op No.1 doctor in para No.3 on merit of the written statement. Further from the perusal of OPD slip Annexure C-1, it is also not disputed that the complainant was again admitted in the hospital of Op No.1 Doctor in the 3^rd week of September 2011 with deformed left forearm and after conducting the x-ray examination, it was found that bones of the left forearm were not united and the implants were in loose condition and due to which the complainant was again operated by the Op No.1 Doctor and implants were removed, fractured ends were freshened and the bones were again fixed with LC-DCP. Besides this, bone grafting was also carried out and the complainant was discharged on 1^st October 2011 as these facts have also been admitted by the Op No.1 Doctor in para No.3 to 5 on merit of the written statement.

10.                   The only version of the complainant is that the implants were not set properly by the Op No.1 doctor as it was displaced from its place due to which second operation was carried out and even after second operation, the forearm of the complainant was not set as the wound was not filled, as MAWAD was coming out from the wound. Upon which, he visited Dr. Pardeep Kohli of Kohli Hospital after more than 8 months where the x-ray was conducted and it was found that the drill pin was left by the OP No.1 doctor in the wound while operation, that is why the MAWAD was coming from the wound and infection was arose in the operation, due to which the complainant visited Dr. Pardeep Kohli of Kohli Hospital, Yamuna Nagar who advised the complainant for removal of the said drill pin and for cure of infection. Learned counsel for the complainant draw our attention towards the report of Dr. Pardeep Kohli dated 19.05.2012 (Annexure C-9) and argued that in this report, it has been clearly mentioned that discharge from the wound is due to reaction at implants site. Further, the learned counsel for the complainant draw our attention towards the discharge card of Ashutosh Hospital (Annexure C-7) and argued that at the second page of this discharge summary it has been specifically mentioned that “treatment given-Removal of Plate and niddle”. During the course of argument, learned counsel for the complainant also draw our attention towards the x-ray films in which drill bit (K.wire) broken inside the forearm was clearly visible. Lastly, learned counsel for the complainant further argued that due to the broken drill bit inside the fracture side i.e. forearm of the complainant, wound was not filled up and complainant got infection due to that broken bit. Learned counsel for the complainant further argued that at the time of discharge from the hospital, the Op No.1 doctor totally kept silent i.e. not disclosed these facts to the complainant that drill bit had been broken inside the left forearm and these facts came to the knowledge of the complainant only when the x-ray was conducted at Allahabad as well as at Kohli Hospital, Jagadhri on 19.05.2012, 15.07.2012 and 13.01.2012 which constitute the deficiency in service and unfair trade practice on the part of Op No.1 Doctor. Learned counsel for the complainant referred the case law titled as A. Srimannarayana Versus Dasari Santakumari & Another, 2013(2) Civil Court Cases page 244 (Supreme Court) wherein it has been held that “Consumer Protection Act, 1986, Ss, 17 & 21 Medical Neglignece- 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 u/s 304-A IPC”.  Further referred case law titled as V. Krishnakumar Versus State of Tamil Nadu & Others 2015 (3) Civil Court Cases page 557 (supreme court) and further referred the case law titled as Bhanwar Kanwar Versus R.K.Gupta and another 2013(2) Apex Court Judgments page 042 (Supreme Court) and Lastly prayed for acceptance of complaint.

11.                   On the other hand, learned counsel for the Ops argued at length that there was no medical negligence on the part of OP No.1 Doctor firstly argued that the Op No.1 is well qualified doctor and has a vast experience of 25 years and even on merit it has been argued that breaking the drill bit or infection in the wound was not due to any medical negligence on the part of treating doctor rather it was due to the negligence of the complainant himself as he did not follow up the dressing of the wound regularly and further did not care the fractures which was united with the help of implants by the Op No.1 Doctor during the first operation. Learned counsel for the OP No.1, further argued that the complainant has totally failed to place on file any report of expert or any board of doctors to prove that there was any medical negligence on the part of treating doctor rather the OP No.1 doctor has placed on file the affidavit of Dr. Pardeep Kohli as Annexure RW/B and affidavit of Dr. Mahavir Goel as Annexure RW/C in support of his case in which both the doctors have mentioned that the possibility of recurrence of infection despite of best possible conservative or operative treatment cannot be ruled out. Even the fracture can unite in the presence of infection, however, it may be delayed. Dr. Pardeep Kohli has further mentioned that if during operative procedure carried out in such cases, a drill bit is broken, it is not always possible to remove it nor it is desirable since removal of broken drill bit may be difficult and may further compromise the blood circulation of the fractured bones leading to delayed union or non-union. Learned counsel for the OP No.1 Doctor 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.

12.                   After hearing both the parties and going through the case law referred above, we are of the considered view that there is a deficiency in service and unfair trade practice on the part of OP No.1 doctor as the Op No.1 doctor has himself admitted in para No.8 on merit of the written statement that drill bit was broken in the inside of bones during operation by moulding the facts as “the broken drill bit was not left during operation negligently as alleged in this para rather during operation drill bit, if broken and not retrievable easily is left inside the bone as a standard protocol to prevent collateral damage to the bone”, meaning thereby that OP doctor directly not admitted that a drill was broken during the operation. We have perused the discharge summary issued by Ashutosh Hospital, Allahabad (Annexure C-7) for the period from 17.07.2012 to 20.07.2012 wherein it has been specifically mentioned that the treatment regarding removal of the plate and niddle was given to the complainant during the admission of the complainant in that hospital. Even in the report of Dr. Pardeep Kohli of Kohli Hospital dated 19.05.2012 Annexure C-9, it has been clearly mentioned that there was discharge from the wound due to reaction at implants site. As it is the case of the complainant that from the first operation i.e. conducted on 30.07.2010, the injuries/wound was not healing and even both bones of the left forearm were not united despite second operation which was conducted by Op No.1 Doctor and the complainant was suffering since then. So, we are of the considered view that from the very beginning the operation of the complainant was not carried out properly by the OP No.1 doctor. Further, the negligence of the Op No.1 Doctor is also duly proved from the facts that he did not disclose to the complainant that a drill bit was broken inside the left forearm of the complainant during the operation as no such document has been placed on file vide which the Op No.1 doctor disclosed the facts to the complainant that drill bit had broken inside the left forearm of the complainant. Even, the OP No.1 doctor has not placed on file any consent obtained from the complainant prior to conducting both the operations. Further, the Op No.1 doctor also did not bother to place on file any treatment record i.e. indoor file of the complainant and best evidence has been withheld by the Op No.1 doctor due to reason best known to him.

13.                   Further, as per Op No.1 doctor, the drill bit 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 drill bit 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 drill bit and/or due to reuse of the drill bit 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 drill bit only first time in the case of complainant and drill bit  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 drill bit is a complication not the negligence but even then  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 drill bit had broken inside of the bones during the operation. Moreover, no consent obtained from the complainant or his attendant has been placed on file by the OP No.1 doctor.

14.                   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 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 were not in a position to give any consent. The version of the Op No.1 Doctor disclosed to the complainant that drill bit 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. 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.  

15.                   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. 3,00,000/- on account of mental agony, harassment, physical and economical loss suffered by him and Rs. 1,00,000/- on account of medical expenses, diet money and operation charges as well as Rs. 10,000/- as litigation expenses but the complainant has failed to submit any cogent evidence regarding medical expenses of Rs. 1,00,000/- as alleged in the complaint. From the perusal of receipts placed on file as Annexure C-14, it is duly evident that the complainant got the treatment under RSBY (Rashtrya Surkasha Bima Yojna) run by the Centre Government of India for BPL families. Besides this, the complainant has placed on file some medical bills of different dates. 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.70,000/- (seventy thousand only) for mental agony, harassment as well as medical expenses would be adequate to meet the end of justice in this case.

16.                   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 as compensation for mental agony and harassment and Rs. 20,000/- on account of medical expenses and further to pay Rs. 5,000/- 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 Oriental Insurance Company Ltd. will pay the awarded amount, being insurer of the OP No.1 doctor 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: 26.05.2017.

                                                                                                (ASHOK KUMAR GARG)

                                                                                                PRESIDENT

                                                                                                DCDRF, YAMUNANAGAR.

 

 

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

                   MEMBER                                                   MEMBER