Haryana

Ambala

CC/287/2012

SHAM LAL - Complainant(s)

Versus

DR.S.K DHAWAN - Opp.Party(s)

DHARAM SINGH

17 May 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                     Complaint Case No.      : 287 of 2012

          Date of Institution         : 26.09.2012

              Date of Decision            : 17-05-2017

 

 

Sham Lal son of Sh. Narata Ram, resident of village Surakpur, Tehsil Shahbad, Distt. Kurukshetra.                                                                 

……Complainant.

 

Versus

 

1.       Dr. S.K. Dhawan, Orthopaedic Surgeon C/o Dhawan Orthopaedic Hospital, Arya Nagar, Jagadhri Road, Ambala Cantt, Distt. Ambala.  

 

2.       The New India Assurance Company Ltd. 6269 Nichalson Road Ambala Cantt. through its Branch Manager. (Insurer of OP No. 1).

 

3.       Dr. Sumit Kalra, Kalra Physiotherapy Centre, Jagdish Marg, Shahbad (M), Distt. Kurukshetra.  

  

                                                                   ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.

                  

Present:       Sh. Dharam Singh Poonia, Adv. for complainant.

                   Sh. Nikhilesh Bhagi, counsel for the OP No. 1 and 2.

                   OP No. 3 already given up.

 

ORDER.

 

                    In nutshell, brief facts of the complaint are that the complainant was suffering regular pain in his right leg lower limb and he got examined himself form M.M. Institute of Medical Science & Research where the MRI of the complainant was done and found that :- Lumbar Lordotic curvature is straightened. The lumber intervertebral disc space is shows loss of T2W hyper intensity at multiple lumbar levels S/O disc desiccation with slight reducation of intervertebral disc height at L4-L5 level. Type II end plate changes are seen at L4-L5 level. Posterior disc bulge with small right paracentral disc protrusion is seen at L4-L5 level causing mild compression of the thecal sac and compressing B/L nerve roots in neural foramine (RT-LT). Posterior disc bulge with small right paracentral disc protrusion is seen at L5-SI level mildly intending the thecal-sac and compressing the right sided existing nerve foot. The complainant took the treatment and took medicines but there is no relief. On 18-07-2011, the complainant met with Dr. Sumit Kalra at Kalra Physiotherpy centre, Shahbad (M)Distt. Kurukshetra, where Dr. Kalra said to the complainant that Dr. S.K. Dhawan orthopaedic surgeon of Ambala will visit to his house to attend a party and he advised the complainant to come to his house for the checking by Dr. S.K. Dhawan i.e. OP No. 1. In evening, the complainant visited the house of Dr. Sumit Kalra, where the OP checked the complainant and also studied the MRI report of the complainant and he advised for operation of spinal code in his hospital at Ambala and called the complainant to the hospital of Dr. Sumit Kalra on the next day, so that Dr. Kalra to be referred the complainant to the hospital of OP No. 1. Accordingly, the complainant was referred to the hospital of OP No. 1. On 20-07-2011, the complainant was suggested by the OP No. 1 for conducting surgery for the said disease, which is mandatory treatment for the said disease. The OP No. 1 assured the complainant that after surgery the said problem of the complainant will be treated and the complainant will become hale and hearty as before within 3 or 4 days and thereafter the complainant will do his routine work as before. On which, the complainant admitted in the hospital of the OP No. 1 and OP no. 1 demanded a sum of Rs. 50,000/- for surgery and treatment and as such the complainant paid the same. On the same day i.e. 20-07-2011, the surgery of the complainant was conducted by the OP No. 1 and assured to the complainant that surgery of spinal code is done and now he will not face any problem in future in his right lower leg and he will do his all routine work after 3-4 days. On 27-07-2011 the complainant was discharged from the hospital after giving some medicine by the OP No. 1. The complainant got the medicines as per the advise but the complainant was not recovered and inspite of that fact there is regular pain in his right lower leg. Thereafter, on 16-08-2011, the complainant again visited the hospital of the OP No. 1 and asked him about the problem, but the OP No. 1 again assured that after sometime the pain will be subsidies and gave some more medicines to the complainant. Inspite of taking the medicines, there is no relief and the leg started shirking and shortened and loss his sensation and as such the complainant again visited the hospital of OP No. 1 on 22-08-2011 and the OP No. 1 sent the complainant to K.D. hospital, MRI, C.T.Scan, Ambala Cantt and MRI of the complainant was conducted and report was delivered to the complainant which was shown to OP No. 1. After checking the report, OP No. 1 assured the complainant that the report is O.K. and after surgery the disease is removed.  On 23-08-2011, the complainant visited the Narayan Hospital at Ambala where Dr. Sachin Jindal, Nuro Surgeon checked the complainant and his report and after checking and read over the report, the doctor declared that the operation done by Dr. S.K. Dhawan was not successful and the complainant was advised to re-operation. Thereafter, the complainant visited at Silver Oaks Hospital at Phase IX, SAS Nagar, Mohali, where the doctors of the said hospital after conducting the MRI, declared that the problem of the complainant is not treated well and suggested for re-operation of spinal code and for that purpose, the complainant spent Rs. 1,50,000/-. After giving the treatment and surgery from the Silver Oaks Hospital Mohali, there is no pain in his right lower leg.   The OP No. 1 acted in medical negligence while conducting the surgery of the complainant and due to the at negligence of the OP No. 1, complainant suffered the pain problem for a long period and spent huge amount for his treatment. As such, the complainant prayed the opposite party may kindly be directed to pay Rs. 4,50,000/- paid as the fee for operation and OPD fee, compensation for mental agony and litigation expenses to the complainant.

2.                Upon notice, Ops appeared through counsel and filed reply by the OP No. 1 raising preliminary objection qua maintainability of complaint, cause of action and concealment of true facts.  It has been submitted that there are well recognized medical variation Principal in the field of the Medical Science and the same have been recognized even in the field of Path Labortaries also, where works are being done on the basis of machines and computers. As per the Medical Book “ED Gruchy Clinical Haemotology in Clinical Practice”, the said book is being followed by all over the world path laboratories and the said book is also a course book for the post graduate pathology students, the principle is laid down this book that there are diurnal variation in the falues report of the Hemoglobin and other blood tests reports and variation from 1gm to 1.5 gm in reports are acceptable. After the operation the complainant was discharged on 27-11-2011 and advised by the OP No. 1 for complete bed rest for a period of 6 to 12 weeks and not to bend, lift and twist because numbness was slow to recovery and the complainant may takes 6 to 12 weeks to return to normal. Doctor Lali Sekhon is a world recognized Authority in Spinal Surgery has further clarified that 10-15 % patients will be having a recurrent disc protrusion, either at the same side and level or at different level or the opposite side and greatest risk period is 6 weeks after surgery. He has specified that numbness and weakness remains upto 12 weeks after surgery. The said doctor has specifically pointed out that recovery from surgery is not a licence to return to normal. Good Back care is the rule for life. There is another Medical aspect where the world fame doctor/surgeon and even the Departments of Neurosurgery have further explained and published their literature throughout the world through web-site which are available on the internet for the whole, including India that reoperation/recurrent Lumbar Disc herniation after first operation is possible among 10 % patients in view of the nature of the problem. The re-operation of the complainant is not admitted, yet it is submitted that if the same has taken place and proved, then it was not the negligence or deficiency in service on the part of the OP No. 1. The world fame doctors have admitted reoperation amount 10-15 % patients.  It is further submitted that the operation of the complainant was successfully conducted on 20-07-2011 and advised complete bed rest 6 to 12 weeks and not to bend, move, twist and lift weight. It is further submitted that MRI conducted by Dr. K.D. Sharma and Narain Hospital Ambala have supported the operation of the OP No. 1 which is clear from their MRI report that the level of surgery by the OP No. 1 was at the correct disease site. There is no document with the complaint wherein Narain Hospital or its Doctor Sachin Jindal have ever declared that the operation conducted by OP No. 1 was not in order or against the norms of operation and against the principle of operation. There is no contrary opinion on the file against the OP No. 1. Even the Silver Oaks Hospital never claimed that the operation conducted by the OP No. 1 was not proper and the same was negligently conducted by OP No. 1. The silver oaks Hospital has not issued any such letter in this regard against OP No. 1. As such, the OP No. 1 has prayed that the complaint is liable to be dismissed with costs.

                   OP No. 2 through counsel and filed reply raising preliminary objection qua maintainability of complaint, cause of action and concealment of true facts.  It has been submitted that the OP No. 2 has insured the OP No. 1 upto the amount of Rs. 10,00,000/- only as per the policy in question and the period of insurance is from 14-12-2010 to midnight 13-12-2011. All the allegations are specifically denied by the OP No. 2. As such, the OP No. 2 has prayed that the complaint is liable to be dismissed with costs.

3.                To prove his version, complainant tendered affidavit as Annexure CX alongwith documents as Annexures C1 to C-40 and closed the evidence whereas on the other hand, counsel for OP No. 1 tendered affidavit Annexure RX alongwith document as Annexure R-1 to R-6 and closed the evidence on behalf of the OP No. 1 and counsel for OP No. 2 tendered affidavit of B.L. Jagwan as Annexure RY alongwith document as Annexure R-2/1 and closed the evidence on behalf of the OP No. 2.

4.                We have heard learned counsel for the parties and gone through the case file very carefully.  As per the version of the complainant that he had a problem in right leg lower limb and report of MRI (magnetic resonance imaging) given by M.M. Institute of Science and Research Mullana, Ambala dated 16-05-2011, is as under :- IMP Multilevel dgenerutive changes in lumbosacral spine. Posterior disc bulge with small right paracentral disc protrusion at L4-L5 level compressing B/L nerve roots in neural foramina (Rt>Lt.). Posterior disc bulge with small right paracentral disc protrusion at L5-S1 level compressing right sided existing nerve root. After obtaining the MRI report, complainant contacted Dr. Sumit Kalara(Physiotherapy Centre), Shahbad,  who has referred the complainant to Dr. S.K. Dhawan for treatment as per reference letter dated 19-07-2011 as annexure C2. OP No. 1 has admitted the patient on 20-07-2011 as per admit card Annexure C3 and the operation was conducted on the same day and he remains admitted till 27-07-2011 as per Annexure C4. Counsel for the complainant has contended that the patient was operated without any investigation like latest MRI, X-ray and other tests as required for such operation. As per the above said record, no detail of surgical procedure is mentioned except Laminectomy L5 with decompression L4-L5 and L5-S1 on that date. As per Annexure C4, the complainant was advised to take the medicine prescribed by the Dr. S.K. Dhawan on 27-07-2011. As per version of the complainant, after surgery he did not improve upto 27-07-2011 then he visited the KD Sharma Hospital, Ambala Cantt. on 22-08-2011 for same problem as he was having acute pain and got his MRI as Annexure C10 in the same hospital, the report is mentioned below:- Impression

* Fluid Collection in posterior segment at the level of L5.

* Posterior herniations of L4-5, & L5-S1 Discs compressing both exiting nerve    roots of L4&L5 vertebrae.

* Discs between L4-5 & L5-S1 show partial dehydration & degeneration.

* End plates of L4&L5 vertebrae reveal degenerative changes.

* Few osteophytes seen.

* Spinal Canal Stenosis at L4-5 & L5-S1 leveles.

   (operated case to be assessed)

 

                    Complainant further argued that the above said MRI report, shows that Disc Compression is still existing nerve root of L4-L5 vertebrae. After that complainant did not approach to the OP No. 1. He preferred to contact to another Dr. Sachin Jindal of Narain Hospital as per OPD card Annexure C11 on 23-08-2011 and Dr. Sachin Jindal advised to the complainant to get the MRI, X-ray Lumbo-Sacral Spone (AP & lateral views) conducted, accordingly he got done his x-ray and MRI from the Spiral CT & MRI Centre on 24-08-2011 as Annexure C13. The following observations as per MRI is as under:-

OBSERVATIONS:

Status operated one month back and further given the observations is as under:-

                   (As compared to the preoperative scan on 16-05-2011, the disc protrusions have increased significately at L4-5 and minimally at L5-S1. No change as compared to the post operative scan done on 22-08-2011). After obtaining the X-ray as well as MRI dated 24-08-2011, complainant visited the Silver Oaks Hospital, Mohali, and consulted with Prof. V.K. Kak on 24-08-2011. On which, Prof. V.K.Kak diagnosed the patient and give the following observations and noted down upon the admission card is as under:

• 3-4 units-pain RLL- Local Rf.
• OP. at Ambala cantt. –Dr. S.K. Dhawan on 20-07-2011- no detail available.
• No relief following surgery-cant stand-walk-lies down on right side only.
• Pain now continue-RLL

               Counsel for the complainant draw our attention that as per the above said observations given by Dr. V.K. Kak, he clearly mentioned that no relief even after the surgery which was conducted by Dr. S.K.Dhawan on 20-07-2011 and patient was not able to stand/walk-lies down on right side only and pain now continues. We have also compared the MRI report dated 22-08-2011 conducted at K.D. Hospital and MRI Dated 24-08-2011 conducted at the Spiral CT & MRI Centre with earlier MRI dated 16-05-2011, upon the basis of which, OP No. 1 had operated the complainant, but no difference has been found in the above said reports. It means compression was existed and patient did not improve after surgery dated 20-07-2011. The complainant admitted in the Silver Oaks Hospital on 24-08-2011 and second surgery was done as per Annexure C21 i.e. discharge summary. As per the discharge summary, it is clearly mentioned in the column of Hospital Course is as under :-

                   Patient admitted with complaint of Post Laminectomy status with Lumbar spondylosis. Investigated thoroughly. Surgical procedure laminectomy L4 & Discetomy L4 L5 done on 25-08-2011. Post operative patient treated with I/V fluid, antibiotics, analgesic, antacids. Now, patient is being discharged in stable condition.  

                   On the other hand, counsel for the OP No. 1 and 2 has argued that as per the annexure C14 dated 14-08-2011, it is clearly mentioned that the strength of the legs are shown as 4+5 and it has not been decreased till 24-08-2011, meaning thereby, OP No. 1 has rightly diagnose the complainant and conducted the surgery according to the medical procedure and  laminectomy L4 & Discetomy L4 L5 rightfully done. Counsel for OP No. 1 also rebutted the version of the complainant that compression is not relieved for some period, it take time minimum six weeks. It cannot be said that it is negligency on the part of Doctor. He further argued that as per medical norms, if a physician cannot assured fully recovered from the disease-simply because a patient has not favourably respondent to a treatment given by a doctor or surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur- No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake- A single failure may cost him dear in his lapse.  

          In view of the above said treatment record, the complainant was again operated with the same problem (laminectomy L4 & Discetomy L4 L5 done on 25-08-2011) for which, first surgery was performed by Dr. S.K. Dhawan inadequately and he never done right procedure as required in such cases and it is duly proved from the above said treatment record i.e. MRI reports etc.

          Law laid by Hon’ble National Commission in case title as Tarun Thakore vs. Dr. Noshir M. Shroff (OOP No. 2015/2000 dated 24-09-2002) wherein the National Commission made some observation about the duties of doctor towards his patient. From those observations it is clear that one of the duties of the doctor towards his patient is a duty of care in deciding what treatment is to be given and also a duty to take care in the administration of the treatment.

          We have gone through the judgment delivered by Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Speciality Hospital& Another” 2010 (2) RCR Civil 161, Whereby in para No. 47, Hon’ble Supreme Court is held that 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 (res) 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.

          On the other hand counsel for the OP No. 2 has relied upon the case law titled as Vijay Dutt vs. Dr. R.D. Nagpal & others 2014 (3) CLT 10, case titled as Dr. Ved Prakash Yadav vs. Nihal Singh 2013 (3) CLT 516, Om Spero Hospital vs. Raj Kumar Sharma, 2014 (2) CLT 601 and Satya Prakash Pant vs. P. N Joshi  (Dr.) & Anr and Smt. Rohini Morghode vs. Dr. A.V. Sapre & others 2014 (2) CLT 366, but the aforesaid judgments are not identical with the facts of the present case.

          Counsel for the opposite parties has argued that there is no negligence on the part of Dr. S.K. Dhawan as the complainant failed to examine the expert witness, who will prove the negligence on the part of treating doctor.   

          Law laid down by the Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Specialty Hospital& Another” 2010 (2) RCR Civil 161, wherein claim of the complainant cannot be rejected on the ground that the expert witness not examined to prove negligence of doctor –it is not required to have expert evidence in all cases of medical negligence. In the present case res ipsa loquitur principle is applied.

          In view of the above discussion, we are of the considered view that OP No. 1. i.e Dr. S.K. Dhawan was in negligent to perform his duty as he operated the patient laminectomy only but Discetomy not done and he never done right procedure as required in such cases as MRI dated 16-05-2011 and MRI dated 24-08-2011 showing the same problem (laminectomy L4 & Discetomy L4 L5 done on 25-08-2011). If treating doctor i.e. OP No. 1 performed laminectomy L4 & Discetomy L4 L5 compression would have been relived and patient certainly would have been improved and no further surgery would have been required.  

                   Now, we are coming to the point that what compensation amount to be awarded to the complainant. As per complainant’s version he has incurred the expenditure to the tune of Rs. 50,000/-, which was paid to Dr. S.K. Dhawan at the time first surgery and he has also incurred the expenditure to the tune of Rs. 97,320/- as per annexure C33 dated 31-08-2011 as well as final bill annexure C36 at the time of second surgery.                   

                   In view of the above said documents, clearly shows that the complainant has spent an amount of Rs. 97,320/- at the time of second surgery, hence, the complainant is entitled for the above said amount along with interest and costs and in such cases, apart from the amount spent by the complainant on the treatment, he is also entitled for compensation for suffering pain, mental agony and harassment. Accordingly we assess the amount of Rs. 50,000/- as compensation and amounting to Rs. 5,000/- as cost of proceeding. Thus, the complaint of the complainant is partly accepted and admittedly OP No. 1 is insured with the OP No. 2 as per Professional Indemnity Insurance Policy (Doctor) as Annexure R2/1, therefore, OP No. 1 and 2 are directed to pay the awarded amount jointly and severally and comply with the following directions within a period of 30 days from the date of receipt of copy of this order:-

(i)      To pay an amount of Rs. 97,320/- along with interest @ 9 % per annum from the date of filing of complaint till its realization. Failing which, opposite parties No. 1 and 2 are liable to pay interest @ 12 % per annum for the default period.

 

2. Also to pay a sum of Rs.50,000/- as compensation for suffering pain, mental agony and harassment and amounting to Rs. 5,000/- as cost of proceeding.

 

                   Copies of this order be sent to the parties free of costs. File be consigned to the record room.

 

ANNOUNCED ON:      17.05.2017                          (D.N. ARORA)

                            PRESIDENT       

         

 

(PUSHPENDER KUMAR)

                                                                                      MEMBER

 

 

            (ANAMIKA GUPTA)

                                                                                      MEMBER