Haryana

StateCommission

CC/205/2015

MANISH SINGHAL - Complainant(s)

Versus

GLOBAL HEALTH PVT.LTD. - Opp.Party(s)

ROHIT KUMAR

22 Sep 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                                                Complaint No.205 of 2015

Date of the Institution: 19.11.2015

Date of Decision: 16.05.2017

 

Mr. Manish Singhal S/o Late Shri Desh Raj Singhal, r/o 108 P, Sector 21, Panchkula, Haryana.

…..Complainant

Versus

1.      Global Health Pvt. Ltd. Through its Director Medanta-The Medicity Sector-38, Gurgaon Haryana 122001, India.

Also at:-

          Defence colony, New Delhi-110024.

2.      Dr.K.K.Handa Director, Division of ENT & Head Neck Surgery E-18, Defence Colony, New Delhi -110024.

Also at:

          Medanta-The Medicity, Sector-38, Gurgaon, Haryana 122001, India.

                                                                             .….Opposite parties

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.Rohit Kumar, Advocate for complainant.

                   Mr.Madhukar Pandey, Advocate for opposite parties.

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

     It is alleged by complainant that due to Mixed Hearing Loss (MHL) he approached Dr. Raman Abrol and after conducting test, Audiometry Report Ex.C-2 was submitted on 19.10.2013. In the end of October 2013 he met opposite party (O.P.) No.2 at his clinic. He recommended surgery and assured success rate of 99% whenever query was put to him and his team, he asked to trust doctor. On 15.11.2015 he underwent  otosclerosis surgery at O.P.No.1 performed by O.P.No.2. There was no communication about surgery for so many hours. Even post operative dis-comforts were faced by him, but, they were not attended. Ultimately his father went to the room of O.P.No.2 and told about dis-comforts, thereafter he came to see him. He was kept in a room wherein there was another patient having whooping cough, which was causing pain and problem to him. Whereas after operation precaution to avoid loud noises should have been taken. After discharge he was asked to come after two days. When there was no improvement after operation, he met O.P.No.2 several times. He admitted that surgery was not successful and condition has deteriorated. When he was not satisfied with his reply he again went to Dr.Raman Abrol and he gave his report Annexure C-3 dated 16.12.2013. Even corrective surgery cannot be performed because due to operation ear nerve has been damaged and cannot be restored. When he went to professor S.K.Kachker he conducted tests and gave Audiometric Evaluation Report dated 31.12.2013.  He spent huge amount on his treatment, but, to no use. Due to this problem he lost his job and suffered loss to the tune of Rs.90/- lacs.  As there was deficiency in service on the part of the O.Ps., they be directed to pay compensation to the tune of Rs.99/- lacs.

2.      O.Ps. filed reply controverting his averments and alleged that when complainant approached O.P.No.2 he was clearly told that surgery carries 5% chance of improvement and  there is 1% chance of deterioration in hearing.  Pure Tone Audiometrygraph (PTA) was conducted by Dr. Raman Abrol of Chandigarh to access the loss of hearing. PTA  graph showed  moderate to severe mixed hearing loss in right  ear having BC/AC count of 35 dB/70 dB.  Hearing threshold  of a patient is determined by taking average frequencies of 500,1000 and 2000 Hz on bone conduction/Air conduction count which was represented as BC/AC.  Normally BC/AC count is 0-25 dB/0-25dB. He was given option of undergoing surgery as per established medical norms. He was made aware about all the complications after surgery.  On 15.11.2013 he was operated upon and there was no post operative complication. At about 3.30 p.m. he was shifted to general ward his father was informed about operation and post operative condition.  At 03.45 p.m. O.P.NO.2 examined and found him to be stable with no nystagmus, vertigo or weber. Bed Site Tuning fork Test was also conducted and nothing abnormal was found. He was examined and watched by O.P.No.2 and  ENT team. There was no negligence on their part. At the time of discharge he was asked to come for follow up within five days and in case of fever, loose or black stools, vomiting, bleeding, chest pain, breathing difficulty, profuse sweating, giddiness, pain in abdomen, reduced urine output etc., as mentioned in reply, to come immediately. At the time of discharge he was not having any cold or cough.  He was also not having any problem when examined in OPD on 22.11.2013.  Vide an e-mail dated 23.11.2013 information was received from him about  severe sore throat and proper  medicine was advised to him.  On 07.12.2013 when complainant was examined his hearing status revealed as under:-

                   “Right ear showed 30 dB/48 dB, Left ear 20 dB/38 dB”,

There was improvement in air induction.  His condition did not deteriorate due to this operation. An episode of cold and cough can be the reason for deterioration in hearing post surgery. Pre operative and post operative PTA is as under:-

“Sr.No.	Date	Stage	BC/AC counts (in dB)
1	19.10.2013	Pre operative	35/70
2	07.12.2013	Post operative	30/48
3	01.11.2014	Post operative	40/50”

 He was never misguided and was told that instead of operation he could also  take help of hearing aid.  He never faced loud noise or disturbance as alleged by him. Another patient in his room suffered injuries  in   road side accident and was not having severe cough or respiratory problems. For the purpose of this operation nominal amount of Rs.80,975.59/- was charged from him. There was no negligence on their part, as alleged by the complainant. He is not entitled for any compensation and the complaint be dismissed.

3.      Both the parties have led evidence.

4.      Arguments heard. File perused.

5.      Learned counsel for the complainant vehemently argued that when he contacted O.P.No.2 it was told by him that success rate of operation was 99% and recommended surgery. As per his advice he went for surgery, but, there was no improvement and hearing loss increased. From the perusal of Ex.C-4 it is clear that there is severe S.N.Loss and there are no chances of improvement.  After operation he was kept with such a patient who was having severe cough, due to which surgical  ear were adversely effected.  Even after operation neither O.P.No.2 nor doctors of his team came to check him. When complainant father went to the room of O.P.No.2 thereafter he was checked. As per statement of O.P.No.2 it is clear that they  accepted report Ex.C-2 issued by Doctor Raman Abrol did not conduct fresh test, whereas they should have conducted tests. It shows there was laxity on their  part due to which loss of hearing increased. He has lost his job and has suffered heavy loss.  O.Ps. be directed to give compensation as alleged in complaint.

6.      As per evidence available on the file, it cannot be presumed that there was any negligence on the part of the O.Ps.  It is no-where alleged by complainant that report Ex.C-2 given  by Dr. Raman Abrol was not correct. Even after surgery he again went to Dr.Raman Abrol and he gave report Ex.C-4, on the basis of which complainant is alleging that there is S.N.Loss and he be granted compensation. So if O.Ps. have acted on the basis of report of that doctor it does not mean that they have committed any mistake. When O.P. NO.2 entered witness box, it was stated by him that they admitted report of Doctor Raman Abrol, but, also conducted general test and thereafter treatment was started. It shows that test was conducted before treatment was  started. Complainant did not produce OPD slips to prove that no test was conducted or advised.  Dr.Raman Abrol had detected PTA about  Sensorineural Loss and complainant has   failed to prove that further tests were required. This test is conducted just to see the loss.  Complainant has miserably failed to show that after this operation  there was nerve loss. In report Ex.C-2 it is mentioned that there was severe mixed hearing loss.  For ready reference the said report is as under:-

                   “LT. Ear Mod RT Eon Mod. Severe Mixed Hearing Loss.”

 Conductive hearing loss has normal bone conduction threshold, but, air-conduction thresholds are poorer than normal by at least 10 dB.  Sensorineural hearing loss  has bone-and-air-conduction  thresholds within 10 dB of each other and thresholds are higher than 25 dB HL.  Sensorineural hearing loss is secondary to cochlear abnormalities and/or an abnormality of the auditory nerve  or central auditory pathways.   In this type of hearing loss, outer ear and middle ear do not reduce signal intensity of air-conducted signal, both air-and-bone-conducted signals are effective in stimulating the cochlea. Pure-tone air-and-bone-conducted thresholds are within 10 dB. Mixed hearing loss has conductive and sensorineural components. This type of hearing loss has sensorineural and conductive components. Pure-tone air- conduction thresholds are poorer than bone-conduction thresholds by more than 10 dB, and bone-conduction thresholds are less than 25 dB.  Mixed hearing loss means damage of nerves also.  So, it cannot be presumed that nerve loss was due to surgery.  Had he not been having mixed hearing loss then it could have been a different matter. For this purpose surgery was conducted with stepedotomy technique which is well recognized by medical ethics.  It has no-where come on the file that O.P.No.2 did not follow proper procedure.  Neither it was mentioned by Dr. Ramab Abrol nor by Dr.S.K.Kachker that operation was not conducted properly.

7.      It is specifically alleged by O.Ps. that complainant was told about success rate before operation, but, even then he opted for surgery and consent was given for surgery.  Complainant signed consent forms Ex.R-5 and R-6 where it is mentioned that he was specifically told about surgery. EX.R-7 also shows that before operation his case was evaluated.  So, it cannot be presumed that proper tests were not conducted before operation and he was not told about improvement. As per facts mentioned above, it is clear that there was little bit improvement after surgery and there was no further loss.  It is admitted by complainant in his cross-examination that after operation  packing was done inside his ears and thick bandage with number of gouges and cotton pieces were put to insulate his ears. 

8.      It has no-where come in the evidence that any patient with whooping cough was laying by his side and there was constant disturbance.  O.P.No.2 specifically stated  in his statement that proper care was taken after surgery. Though it is alleged by O.Ps. that attendants of complainant were told about surgery, but, even if they were not informed it does not mean that there was any laxity on their part. If there is no improvement after operation, it does not mean that O.P.No.2 was negligent. He followed proper procedure while conducting surgery for this problem.  As per medical literature most commonly performed surgical procedure is stapedotomy. Even after surgery a patient may require hearing aid for better performance.  Patient can be discharged from the hospital after few hours of surgery with some does and don’t’s.  In discharge summary it was mentioned that what steps are to be followed. He was not having any cold or cough at the time of discharge or even on 18.12.2013 when he came for consultation. If any problem has arisen lateron that cannot be attributed to operation conducted by O.P.No.2. 

9.      Further more there is no expert evidence on the file showing that there was any medical negligence on the part of the O.P.No.2. Just on the basis of  statement of complainant and other ordinary witness it cannot be presumed that proper treatment was not given.  It is opined time and again by Hon’ble Supreme Court and Hon’ble National Commission in so many cases that in the absence of expert or cogent evidence negligence cannot be attributed to the doctor. Mere averment in complaint is not an evidence. Averments are supposed to be proved with cogent evidence.  Complainant is obliged to provide facta probanda as well as facta probantia, which is missing in the present case. Reference to this effect can be made to opinion of Hon’ble Supreme Court expressed in C.P.Sreekumar (Dr., M.S.(ortho) Vs.S.Ramanujam (2009) 7 SCC 130, Senthil Scan Centre Vs.shanthi Sridharan and another( 2010) 15 SCC 193 and Vinitha Ashok (Smt) Vs. Lakshmi Hospital and others 2001) 8 S.C.C.731.  Opinion of Hon’ble National Commission expressed in Tilat Chaudhary & Anr. Vs. All India Institute of medical Sciences & Anr. IV (2012) CPJ 610 (NC), Nalini Vs.Manipal Hospital & Anr. IV (2011) CPJ 280 (NC), Sanjeev Manktala (Dr.) Vs. Ajit Sood (Dr.) and Ors.  III (2012) CPJ 636 (NC) (case laws cited by O.Ps. counsel).

10.    As a sequel to above discussion when there is no evidence on the file or expert opinion to show that O.P.No.2 did not follow the proper procedure before and after conducting operation or that there was any negligence on his part it cannot be presumed that there was laxity on his part.  As already discussed above, it is bounden duty of complainant to prove with cogent evidence that prescribed standard was not followed in his case. So these arguments are no avail.  Complaint fails and the same is hereby dismissed.

 

May 16th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.