Haryana

Yamunanagar

CC/121/2012

Suman Dhiman W/o Narinder Kumar - Complainant(s)

Versus

Dr.KulBhushan Gupta - Opp.Party(s)

Complainant Inperson

27 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR AT JAGADHRI.

                                                                                    Complaint No.121 of 2012.

                                                                                    Date of institution:2.2.2012.

                                                                                     Date of decision:27.9.2017.

 

Suman Dhiman wife of Sh.Narinder Kumar Dhiman, aged 53 years resident of House No.1260, Sector-17, HUDA, Jagahdri, District Yamuna Nagar.

                                                                                                            …Complainant.

                                    Versus

1.         Dr. Kulbhushan Gupta, of K.B.Gupta, Hospital Bilaspur Road, Jagadhri, Distt. Yamuna Nagar.

2.         The United India Insurance Company Yamuna Nagar through its Manager (Insurer of K.B.Gupta Hospital, Jagadhri under policy No.040100/46/10/35/00003583 from 27.10.2010 to 26.10.2011.

                                                                                                             … Respondents.

BEFORE:       SH.SATPAL, PRESIDENT,

           SH.S.C.SHARMA, PRESIDING MEMBER.         

                       SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Complainant in person.   

              Sh. Pardeep Garg, Advocate, counsel for OP No.1.

              Sh.Rajiv Gupta, Adv. for Op No.2.

 

ORDER: (SATPAL, PRESIDENT)

                                   

1.                     Complainant has filed this complaint Under Section 12 of the Consumer Protection Act 1986 against the respondents (hereinafter the respondents shall be referred as OPS).

2.                     Brief facts of present complaint are that in the mid night of 26.9.2011 the complainant slipped in the toilet of her house and she was taken to the hospital of OP No.1., who conducted the x-ray of the complainant and told that her left Ankle Joint has been fractured and the same required operation.  The complainant was got admitted in the hospital by OP No.1 on 27.9.211 and on 28.9.2011 the Op No.1 prior to conducting the operation got deposited Rs.28,000/- from the complainant and the operation was conducted by inserting the plates by OP No.1.  After operation, the OP No.1 assured that the operation has been conducted successfully and advised rest for some days and she was required to be looked after under medical supervision and the complainant remained admitted in the hospital from 27.9.2011 to 4.10.2011 as per the advice of OP No.1.  At the time of discharge the complainant was advised to take complete bed rest for two months and she was assured that she would be able to walk after two months.  The Op No.1 had also charged Rs.18,270/- at the time of discharge for hospitalization, bed charges, OPD X-ray and other test charges.  Besides this, the complainant had incurred a sum of Rs.12,806/- on medicines prescribed by OP No.1, in this way the complainant spent Rs.59076/- on her treatment.  The Op No.1 had not issued the bills to the complainant despite several requests.  The complainant had taken full precautions as advised by the doctor/OP No.1 and after two months the complainant approached the OP No.1 who had taken x-ray and given his report dated 29.11.2011 that her fracture had been joined and everything is fine and asked the complainant to walk.  The complainant tried to walk in presence of OP No.1 but she could not walk and felt pain in her foot and when she reported to the Op No.1, he stated that as the complainant has not walked for a long time so she has fear in walking otherwise everything is fine and she must try to walk and with the passage of time the pain will  remove automatically.  The complainant as per the advice of the OP No.1 tried to walk but in spite of her best efforts, she felt unbearable pain and her pain was not removed even after 2.5 months, then she decided to obtain another medical opinion.  Accordingly, the complainant approached to Dr.Mahavir Goel of Goel Hospita on 19.12.2011 who got conducted the x-ray and complainant was astonished to hear from the above said doctor that the surgery conducted by the OP No.1 was not proper and the plate inserted is loose and the same requires the surgery again for proper walking of the complainant.  Immediately, the complainant took the opinion of Dr.Rajesh Saini of Saini Orthopedics Center, Opp. Civil Hospital, Jagadhri on 20.12.2011 who opined the same opinion as opined by Dr.Mahavir Goel.  After getting two opinions, the complainant approached the OP No.1 and told him all the facts upon which OP No.1 told that both the opinions are wrong and he had conducted the operation rightly, when the complainant asked that why she is not able to walk even after passage of time the OP No.1 became furious and instead of resolving the problem of the complainant, he started humiliating and insulting the complainant.  Till date, the complainant is not fully cured and she is compelled to get operated again her left Ankle joint for which a lot of money was required.  Besides this, the complainant submitted that she is not able to walk for further few times.  Further the complainant submitted that she is in service and her leaves had already been finished and then she had to take the leaves without pay, as such there is gross negligence on the part of the OP No.1 and prayed for acceptance of complaint by directing the Op No.1 to pay Rs.400000/- as compensation for causing mental agony, physical disablement, harassment and financial loss and also to pay Rs.11000/- as cost of proceedings. 

3.                     Upon notice, the OP No.1 appeared and filed written statement by taking some preliminary objections that the complaint is not maintainable as the complainant had not disclosed any cause of action related to acts of omission; the complaint is wholly misconceived, baseless; the complainant has filed this complaint just to harass the answering OP; the complaint has been filed not with respect to any negligence/deficiencies, neither in services nor for any unfair trade practices adopted by him but has been filed just to tarnish the clean image of the answering OP; no specific, scientific and justified allegations have been leveled in regard to negligence in providing service and the complainant has totally failed to explain “as to how the answering Op was negligent”,.  In parawise reply, the OP No.1 admitted that the complainant was admitted in his hospital on 27.9.2011 whereby an x-ray was conducted and it was found that the complainant had injury in the Ankle and suffering from osteoporosis.  The complainant was having medical history of Diabetic Mellitus from last 10 years.  The complainant was having swelling on ankle joint so POP back was given to give rest to the complainant.  It was further submitted that on 28.9.2011, the operation was conducted on the ankle and plates were fixed in the bone cautiously and anatomical reduction was achieved and all fracture were reduced properly. This fact is denied that the complainant had deposited Rs.28,000/- in advance prior to operation whereas the complainant had only paid Rs.2,000/- in advance for conducting the said operation.  The complainant remained admitted in the hospital from 27.9.2011 to 4.10.2011.  It is denied that at the time of discharge, the complainant had paid Rs.18,270/- and also denied that the complainant spent Rs.59,076/- on her treatment whereas it is submitted that complainant was discharged from the hospital on 4.10.2011 in a satisfactory condition and total payment as was made by the complainant was Rs.14,800/- towards the operation and bed charges, even the amount Rs.7000/- has not been paid by the complainant to the answering OP till date.   It is further submitted that after the discharge from the hospital the Op No.1 had given personal attention to the complainant and even dressing was done at the residence of the complainant and stitches were also removed at the home of the complainant at the request of the complainant.  This fact is admitted that on 29.11.2011, the complainant visited the hospital but the answering OP never asked the complainant to walk and not assured that she would be able to walk after two months, even she was advised rest for two more weeks.  The complainant was also advised to walk without putting weight on the leg and to walk with walker only.  There is no deficiency in service on the part of the OP No.1.and prayed for dismissal of complaint with costs. 

4.                     The OP No.2 while filing the written statement took some preliminary objections that the complaint is not maintainable; the complainant has no locus standi to file the present complaint; the complainant has not approached this Hon’ble Forum with clean hand; the complaint is not maintainable qua the answering OP because the insurance policy is not confirmed till date and in case, this Hon’ble Forum comes to the conclusion otherwise, in that eventuality the answering OP takes the alternative plea that OP No.1 had intentionally violated the terms and conditions of the policy.  On merits the Op No.2 reiterated the stand taken by the Op No.1 in their reply and prayed for dismissal of complaint with costs.

5.                     To prove the version of the complaint the counsel for the complainant had tendered into evidence affidavit of complainant as annexure C.X, documents such as copy of prescription as annexure C.1, copies of bills as annexure C.2 to C.5, copy of receipt of Rs.14,800/- as annexure C.6, copy of prescriptions of Dr.K.B.Gupta as annexure C.7 to C.9, copy of prescription of Goel Hospital as annexure C.10, copy of prescription of Saini Orthopaedics as annexure C.11, detail of payment of Rs.59,076/- as annexure C.12, copy of prescription of Vardhman Trauma and Laparoscopy centre Pvt.Ltd. as annexure C.13 & C.14, copy of prescription of Saini Orthopaedics centre as annexure C.15, copy of prescription dated 1.11.2011, copy of receipt of Rs.500/- dated 6.7.2012 as annexure C.17, copy of prescription of Dr.Mukesh Jain as annexure C.18, receipt of Rs.500/- dated 25.1.2012 as annexure C.19, copy of bill of Anurag Medical Store as annexure C.20, copy of discharge summary as annexure C.21, copy of bill as annexure C.22 and closed the evidence on behalf of the complainant.

6.                     On the other hand the learned counsel for the OP No.1 tendered into evidence affidavit of Dr.Kulbhushan Gupta, as annexure R.1/X, copy of affidavit of Dr.Rajesh Saini, as annexure R.1/Y and documents such as copy of literature as annexure R.1/1, copy of professional indemnity policy as annexure R.1/2, copy of certificate as annexure R.1/3 and copy of certificate of Master of Surgery as annexure R.1/4 and closed the evidence on behalf of the OP No.1.

7.                     On the request of OP No.1 record of Thapar High School, Yamuna Nagar where the complainant was serving was summoned for which Sh.Gagan Kumar Account Executive appeared and produced the copy of record as annexure R.1/5.

8.                     The counsel for the Op No.2 tendered into evidence affidavit of Shri Ajay Sareen, Asstt. Manager as annexure R.2/X.

9.                     We have heard the complainant and learned counsel for the OPs and gone through the pleadings as well as documents placed on the file.  The complainant starting the arguments stated that this fact is admitted that she got injury in her ankle for which she remained admitted in the hospital of the OP No.1 and got operated herself from the OP No.1 and spent a sum of Rs.59,076/-.  The complainant further argued that she fully complied with the instructions of the doctor-OP No.1 and took the complete bed rest but when she on 29.11.2011 visited the OP No.1 then the Op No.1 got the x-ray and told that the facture has been joined and everything wass fine and further told her to walk but she could not walk and in the presence of the doctor, the complainant also felt severe pain.  OP No.1 made an excuse that the complainant was on the bed for the long time, she must try to walk and with the passage of time, the same will get removed automatically.  Further, argued that the complainant waited for 2.5months but finding no relief, the complainant decided to take another opinion and visited Dr.Mahavir Goel who stated that the previous operation has not been done properly and advised for re-surgery and thereafter the complainant also took the advice of Dr.Rajesh Saini, Saini Orthopaedic Center who also told the same position stated above.  After taking the opinions of two doctors, the complainant visited the OP No.1 and when the complainant tried to know as to why she could not walk, the doctor-OP No.1 abused the complainant and insulted her instead of resolving the problem.  The complainant draw the attention of this Forum towards authority reported in 2015(1) CLT P.599 titled as G.Subramanian vs. Pondicherry Institute of Medical Sciences & others wherein it has been held that, “Medical negligence-Exper evidence-Held-The objects and reasons of the Act to provide speedy and simple redressal of consumer disputes-Expert evidence in all cases of medical negligence should not be imposed which will dilute and defeat the very purpose of Act-The efficacy of the Act will be curtailed and the remedy will become illusory to the common man”.  Further draw our attention towards authority reported in 2016(2) CLT P.338 titled as Bhattacharya Orthopaedics & Related Research Centre (Pvt) Ltd. & others vs. Anum Kumar Dhar, wherein it has been held that,“Medical negligence-Expert Evidence-Whether expert opinion is needed or not, it has to be judged on the facts of each case and there cannot be a mechanical or straight jacket approach-When the fora finds that an expert evidence is required, it can seek assistance of an expert-The question whether a medical practitioner or the hospital is negligent or not is a mixed question of facts and law”.  The complainant further draw the attention of this towards authority reported in 2016(2) CLT P.292 titled as Medical Superintendent Lok Nayak Jai Parkash Narain Hospital & others vs. Santosh, wherein it has been held that, “It is the primary duty of the hospital to maintain and produce the patient records on demand by the patient or appropriate judicial bodies-The patient or their legal heirs can ask for copies of the treatment records that have to be provided within 72 hours-Failure to provide medical records to patients on proper demand will amount to deficiency in service and negligence”.   There is deficiency in service on the part of the Op No.1 and prayed for acceptance of complaint.

10.                   On the other hand the counsel for the OP No.1 argued that the complainant had only paid Rs.14800/- instead of Rs.59,076/- and Rs.7000/- has not been paid by the complainant till today, even the doctor-OP No.1 gave the personal attention to the complainant and the dressing as well as removal of stitches were made at the home of the complainant.  Further argued that an independent enquiry has been got made from the board of doctor from Civil Hospital, Yamuna Nagar and the board after elaborate discussion reported that there is no negligence on the part of the OP No.1.  Further the learned counsel for the OP No.1 draw the attention of this Forum towards authority reported in 2015(1) CLT P.385, titled as Dr.Surinder Goyal vs. Surjit Singh & others wherein it has been held that,“Medical negligence-Surgery for removal of gall bladder-Held-Postoperative complication can occur at any time at any place, which is well known complication of surgery performed-Known complication of surgery cannot be taken as medical negligence.” (ii) Medical negligence-Expert evidence held-adjudicating authority District Forum is just like a layman and is not expert in medical science-It has to take the assistance of expert evidence and the medical literature on the record, to come to correct conclusion-Appeal allowed.  Observation: Medical Negligence-usually, when a person files complaint against the medical practitioner he exaggerates his claim-solid evidence is required to establish it before the Consumer Forum. Similarly draw the attention of this Forum towards case law titled as K.Mahendran vs. O.Satyanarayana (Dr.) & Anr. Reported in 2009(4) CLT P.714 (NC), wherein it has been held that, “Medical negligence-Surgery-For implanting the plate to ensure proper union of the fracture bone-Finding by the State Commission that there was no

 

deficiency on the part of the surgeon in either deciding to undertake surgery that he actually conducted-Having regard to the evidence of PW2 and RW1 the expert witnesses finding by the State commission that there is no deficiency in giving advice to the patient but it is the patient that did not follow the advice of the surgeon upheld”.   Further referred case law titled as Kusum Sharma & Ors vs. Batra Hospital & Medical Research Centre & ors, reported in 2010(2) CLT P.282 (SC), wherein it has been held that, “(i) Medical negligence-Negligence-Case law discussed. (ii) Medical negligence-Basic principles, emerging from case law, in dealing with the cases of medical negligence enumerated. (iii) Medical negligence-Surgery-For removal of left adrenal tumor-Plea that ‘anterior’ approach adopted at the time of first surgery was not the correct approach, surgery should have been done by adopting ‘Posterior’ approach-Apart from the medical literature the evidence of two eminent doctors of AIIMS supported ‘anterior’ approach in view of inherent advantage of the approach-Doctor who performed the operation had reasonable degree of skill and knowledge-Held that the appellants have failed to make out any case of medical negligence against the respondents-The National Commission was justified in dismissing the complaint of the appellant”.  Further draw the attention of this Forum towards literature, suggestions Concerning Orthopedic Metallic Internal Fixation Devices, “the use of metallic surgical implants has given the surgeon a means of bone fixation and helps generally in the management of fracture and reconstructive surgery, however, these implants are intended only to assist healing and not intended to replace normal body structures”. Possible Adverse Effects, Nonunion or delayed union which can lead to breakage of the imslant”. So there is no deficiency in service on the part of the OP No.1 and prayed for dismissal of complaint with costs.

11.                   The counsel for the OP No.2 argued that if the Hon’ble Forum comes to the conclusion otherwise, in that eventuality, the plea of the answering OP is that the OP No.1 intentionally and deliberately violated the terms and conditions of the insurance policy at the material time and prayed for dismissal of complaint with costs.

12.                   After hearing the complainant in person as well as counsel for the Ops and going through the pleadings as well as documents placed on the file, it is clear that the complainant got admitted herself in the hospital of the OP No.1 who operated the complainant and inserted the plates on 28.9.2011 and advised her as is clear from the certificate (annexure C.1) to take bed rest for two months.  Accordingly, the complainant strictly followed the directions of OP No.1 about the bed rest of two months.  Learned counsel for the OP No.1 had taken two pleas to controvert the version of the complainant that she adhered strictly to follow the directions of OP No.1 regarding bed rest for two months thereby causing burden on the fractured leg and the complications of surgical operation had arisen on account of the fact that the complainant was diabetic and thus accordingly the team of experts has concluded that there was no negligence on the part of the Op No.1 during surgical operation.  This Forum, however, does not find much force in the above pleas taken by the counsel for the OP No.1 on the ground that the complainant strictly followed the directions of bed rest for two months as she remained on leave w.e.f.27.9.2011 to 5.12.2011 as is clear from record of school (annexure R.1/5); expert opinion cannot be taken as error free because the team of expert has not given the clear cut and specific findings about the cause of complications which had arisen after surgical operation by the OP No.1 and merely concluded that complications had arisen because of overweight which seems to be a figment imagination of the experts.  Further, OP No.1 did not prove anything on record nor the same has been pointed out by the team of experts that the complainant did not follow the directions of bed rest for two months about which any inference could be drawn by this Forum.   Further, it would not be out of place to mention here that the expert report is silent about the diabetic condition of the complainant as has been argued by the counsel for the OP No.1 as a ground of complications which had arisen after surgical operation.  As the complainant was diabetic as is the case of the OP No.1 then he was under obligation to avail the services of some doctor/physician who could take care of the diabetic patient/complainant.  It is also relevant to mention here that the complainant visited the other doctors i.e. Dr.Mahavir Goel of Goel Hospital who observed that “Loose fibula plates” and another Dr.Rajesh Saini, Saini Orthopaedics Centre observed that “Plating fibula friction”.  Even in the prescription dated 29.11.2011, OP No.1-doctor made his observation that Ankle move full, No pain, No complaint and after that observation, the complainant joined her duties on 6.12.2011 after taking leave from 28.9.2011 to 5.12.2011, it shows that the complainant took full rest, as advised by the treating doctor.   As per the authority (supra) in which it has been settled that the expert evidence in all cases of medical negligence should not be imposed which will dilute and defeat the very purpose of the Act as in the present case in hand also the expert report is not applicable/binding upon the complainant as the same is itself contradictory.  Even, the treating doctor has also not produced any record to show that the complainant has violated his directions regarding bed rest advice for two months, whereas the version of the complainant is proved from the statement of Gagan Kumar Accounts Executive who stated that the complainant remained on leave from 27.9.2011 to 5.12.2011.  During the pendency of the case when the case was referred to the Civil Surgeon, Yamuna Nagar for appointment of board of expert in which this Forum as well as the board of doctors demanded the record from the OP No.1, the OP No.1 failed to produce the same despite several opportunities.  It is settled law as decided by the Hon’ble National Commission, in the authority (supra)  cited above that it is the primary responsibility of the hospital to maintain and produce the patient records on demand of the complainant or appropriate judicial bodies.  

13.                   The case laws referred by the learned counsel for the OP No.1 are not disputed but not identical/applicable to the facts and circumstances of this case, whereas the case law referred by the complainant are fully applicable to the facts and circumstances of the case in hand.

14                    In view of the above said discussion, we are of the considered view that the deficiency in service on the part of OP No.1 is proved and the complainant is entitled for the relief.

15.                   Now on the point of quantum, the complainant has produced annexure C.12 i.e. hand written detail of cash payment in which she has shown an amount of Rs.59,076/- paid to the OP No.1 but the complainant has produced the bills (annexure C.2 to C.4) totaling Rs.12806/- and annexure C.6 receipt of Rs.14,800/- as has also been admitted by the OP No.1 in his written statement, hence, the complainant is entitled for Rs.27,606/- as the amount spent by her on her treatment.  So, far as the question of compensation is concerned, since the deficiency in service on the part of the OP No.1-doctor is proved, the complainant is entitled for compensation for mental agony, harassment as well as cost of proceedings.

16.                   Resultantly, we partly allow the complaint of the complainant and direct the OP No.1 to pay to the complainant Rs.27,606/- i.e. the amount spent by her for operation which did not succeed due to deficient and negligent services rendered by the OP No.1 and further to pay Rs.20,000/- as compensation for mental agony, harassment as well as Rs.5,500/- as cost of proceedings.  However, it is made clear that the hospital of the OP No.1 is duly insured with the OP No.2 who will indemnify the claim awarded against the Op No.1, so the above said awarded amount be paid by the OP No.2 to the complainant.  Order be complied within 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.27.9.2017.      

 

                                                                                                (SATPAL)

                                                                                                PRSIDENT.

 

                                   

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

MEMBER                                          MEMBER.