Appeared at the time of arguments: For Appellant : Mr. Jasjit Singh Ahluwalia, in person For Respondents : Mr. Rohit Puri, Advocate Mr. Aditya Awasthi, Advocate for R-1, 2 & 5 Mr. Jatinder Nagpal, Advocate Ms. Ashima Sawhney, Advocate for R-3 & 4 Pronounced on: 30th May 2023 ORDER 1. The First Appeal has been filed under section 19 of the Consumer Protection Act, 1986 (in short “the Act”) against the order of the State Consumer Disputes Redressal Commission, Punjab (in short, the ‘State Commission’) in CC No. 13/2016, whereby the Complaint was dismissed. 2. Briefly, the Complainant Lt. Col. (Retd.) J. S. Ahluwalia, an ECHS beneficiary for his knee problem consulted Dr. Harsimran Singh and the Head of Dept. - Dr. Manuj Wadhwa of Joint Replacement Unit of Fortis Hospital, Mohali, on 15.02.2011. His both the knees were in bad condition and needed replacement. Dr Manuj Wadhwa, strongly recommended that Trumatch (custom knee solutions) and special implant of US technology would be most suitable for the complainant being a sportsman. The complainant was categorically told by Dr.Manuj Wadhwa that the special implants will be custom-built for his knees and imported from abroad in accordance with exact his knees’ measurements. He further assured that only such implants are capable of correcting his knees deformity and will improve his mobility and giving a good quality of life. After the surgery the complainant would be able to sit, dance and walk comfortably besides its other long time benefits for the complainant. It was alleged that in North India wide publicity was made by the OP hospital about the facility started for 4th Generation Knee Joint Implant (custom knee solution and special implant). The complainant and people were allured by the statements of OP- 3 as appeared in the newspapers. Therefore, he approached Fortis Hospital, Mohali as an empanelled hospital with the ECHS and underwent the surgery for replacement of both the knee joint with TRUMATCH (custom knee solution and special implant) on 12.08.2011 and discharged on 18.08.2011. The total cost of said surgery was Rs. 4,19,830/ out of which Rs. 3,48,212.00 made by the ECHS and the balance Rs. 1,17,330/- paid by the complainant. At the time of discharge the respondents demanded an extra amount of Rs. 30,000/- which he paid under protest. 3. On 25-8-2011 at the time of removing the stitches the complainant noticed that his right leg joint alignment was not correct and he immediately complained about it to Dr. Manuj Wadhwa, who after examination, advised & assured the complainant that with physiotherapy and exercises his right leg joint alignment will get corrected and the pain/burning sensation of left leg will disappear. The complainant underwent Physiotherapy for about six months by and paid Rs. 300/- per visit. However, there was no improvement. On consultation with Dr. Manuj Wadhwa, he advised to continue with physiotherapy, exercises, regular walk and assured his mobility and alignment would improve in due course of time. However, at the end, the Fortis hospital authority failed to rectify the said problem and the pain and mental agony continued. On 13 -7-2013 and 05.07.2014 the complainant again visited OP hospital and Dr. Harsimran Singh Senior Orthopedic Surgeon again advised certain medicines for sixty days. The problem persisted and he again visited the Fortis Hospital on 13/03/2015 and Dr. Harsimran Singh after examining him advised second surgery is required for the left leg whereas the second surgery on the right leg will not be helpful to correct the defect of alignment of right leg. Due to alleged medical negligence of OPs the complainant now was virtually crippled .The OPs are thus guilty of unfair trade practice and inducing him to pay huge amount without delivering the results as promised by them. The complainant was a retired Defence Officer and a Sportsman of National Status. The said TRUMATCH (custom knee solution and special implant) surgery has been stopped by the Ops. It was alleged that that Dr. Manuj Wadhwa in connivance with Fortis hospital authority had imported few trial joint of TRUMATCH (custom knee solution and special implant) and implanted one of the said trial knee joints for the complainant. The OPs in contrary to the false representations and assurances and the improper surgery done by Dr. Manuj Wadhwa which has resulted in the lifelong deformity of Right Knee due to incorrect alignment and the wrong placement of the Left Knee which is causing unbearable pain and burning sensation to the complainant resulting in mental agony and harassment. It was an utter disregard and violation of medical ethics and if the said fact is proved, then the US company is also required to be penalised. 4. It was the continuous cause of action from 03/07/2013 to 13/3/2015 the complainant remained under the treatment of Dr. Harsimran Singh and finally he was advised that the alignment of the right knee shall remain as it is and that the left knee joint replacement surgery was not properly done and advise the complainant that its fresh surgery is now the only remedy. 5. The OPs filed their reply and raised preliminary objections that complaint was misconceived and not maintainable. The complaint was hopelessly time barred and merits dismissal under Section 24-A of CP Act 1986. Mere absence of fruitful results or not succeeding in treatment does not give rise to any cause of action against the treating doctor or hospital. The OPs left Fortis Hospital Mohali and from 01.06.2013 joined at Max Hospital as Director & Head Max Elite Institute of Orthopedics and Joint Replacement. The Complainant has not produced the complete treatment record. Dr Manuj Wadhwa has to his credit the launch of 10 years Knee Concept & Personal Fit Joint Replacement in India and launch of high flexion knee and hip replacement etc in north India. In the instant case hospital forwarded the record of the patient to US company and the implants were made precisely to the size of the patient as per his MRI which was sent to them. The TKR surgery was successfully performed on 11.08.2011 and he was discharged on 18.08.2011 with an advise for follow up under the Senior Orthopedic Surgeon of ECHS/Army Authorities. The complainant has never consulted OPs from 18.08.2011 to 05.07 2014, which proves that surgery was a success. 6. The State Commission dismissed the Complaint as barred by time having been filed after more than 2 years from the commencement of the cause of action i.e. August, 2011. 7. Being aggrieved, the Complainant filed the instant First Appeal. 8. Heard the learned Counsel for the Respondents and the Complainant who was present in person and gave my thoughtful consideration. 9. On perusal of medical record, it is evident that the Complainant willingly opted for TKR surgery with Trumatch (custom knee solution). He was aware that the jigs to be manufactured by the company in US would take about three months for customization and would cost him dearly. He was operated on 11.08.2011. He alleged that alignment of his right leg was not correct after surgery. It is pertinent to note that for more than 4 years he never complained or approached the doctor and then suddenly after about 4 years and 8 months, he filed the instant complaint. 10. It is also evident from Dr. Manuj Wadhwa’s affidavit that the complete details of treatment were provided to the patient and record of the same has been recalled from the manufacturing company in US. He further testified that customized surgical plan is devised from 3D model and once approved, patient's specific jigs are made to that patient, which are then sent to India and this surgery since customized is very precise to that patient. There can be many reasons for revision, but no alignment defect seen during surgery, as the jigs were manufactured according to precise size of the patient by the manufacturing company. Merely advising revision of left knee after five years would not mean that previous surgery was defectively performed by Dr. Manuj Wadhwa. 11. I agree with the observations made by the State Commission on the applicability of the discovery rule in the instant case. The relevant observation of the State Commission is reproduced as below: We have to determine this point, as to whether cause of action would commence in this case at the time of removal of stitches in August 2011 or it is still continuing cause of action in this complaint. The matter is not res integra. The Apex Court has held in "V.N Shrikhande (Dr.) versus Anit Sena Fernandes reported in 2011 (1) The ratio of this authority is fully applicable to the facts of the case on hand Herein, as pleaded in para no 11 of the complaint, the alleged defect came to the knowledge of complainant in August 2011 at the time of removal of stitches The discovery rule is now applicable in this case. Hence, filing of the complaint in the year 2016 by the complainant by not taking follow up treatment, thereafter makes it clear that complaint is barred by time having been filed after more than two years from commencement of cause of action in August 2011. 12. To conclude, there was no reason to attribute medical negligence against the OPs as the TKR was performed with Trumatch customized knee implant, which was manufactured in the US on taking the measurements. The patient was operated in 2011 and the Complaint was filed in 2016. The discovery rule is not applicable, thus it was time barred as under Section 24A of the Act, 1986. 13. There is no merit in the Appeal and the same stands dismissed. There shall be no Order as to costs. | 
