Haryana

Karnal

CC/271/2020

Amrit Pal Singh - Complainant(s)

Versus

Haryana Nursing Home - Opp.Party(s)

Vinay Bansal

10 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.271 of 2020

                                                        Date of instt.30.07.2020

                                                        Date of Decision:10.05.2023

 

Amrit Pal Singh son of Shri Pritam Singh, resident of house no.2345, Sector-13, Urban Estate, Karnal.

                                                                        …….Complainant.

                                              Versus

 

1.     Haryana Nursing Home, Sector-14, Urban Estate, Karnal.

2.     Dr. Gaurav Sachdeva c/o Haryana Nursing Home Sector-14, Karnal.

3.     Dr. K.L. Sachdeva, c/o Haryana Nursing Home, Sector-7, Urban Estate Karnal.

4      New India Assurance Co. Ltd. Old G.T. Road, near Bus Stand Karnal through its authorized person.

5.     The Oriental Insurance Co. Ltd. through its Branch Manager, Meera Ghati Chowk, above OBC Bank, Karnal.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before     Sh. Jaswant Singh……President      

                Dr. Rekha Chaudhary…….Member

                   

Argued by: Shri Vinay Bansal, counsel for complainant

                   Shri G.P. Singh, counsel for the OPs no.1 to 3.

                   Shri Naveen Khetarpal, counsel for the OP no.4.

                   Shri Ram Mehar Sharma, counsel for the OP no.5.

 

                    (Jaswant Singh, PRESIDENT)

ORDER: 

       

           The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that on 29.01.2020 the complainant slipped away while on the way due to which he received right shoulder injury and he went to Bharat x-ray where the doctor opined that the he has received the minor fracture. Thereafter, complainant approached the hospital of OP no.1 where OPs no.2 and 3 asked told the complainant that only a thin wire will be implanted in the shoulder of the complainant in order to give support and this work will be done by way of laser technique. On 30.01.2020, complainant was admitted in the hospital and it was told that the complainant will be operated. After giving anesthesia the complainant was not conscious to know what is going on but after operation the complainant found that there is long cut on his arm. After getting senses, when complainant asked about this long cut, it was told to him that due to insurance long plates have been fitted by using screws as implantation of wire was not fetching proper insurance amount. The complainant became stunned to hear the fact that due to the greed of insurance money the doctor can do such like act but since the complainant has helpless at that time. After the operation, the complainant started getting severe pain in his shoulder and surrounding area. On asking the doctor told that this is usual formal pain and same will be stopped. Just within few days complainant became unable to use his arm. Complainant approached the OPs and told about the severe pain in his arm but OPs did not give any satisfactory reply and thus the complainant for getting second opinion went to Shri Hari Hospital where the doctor had opined that until and unless stitches are removed exact opinion cannot be given and only prescribed for pain relieving medicines. In the middle of February, complainant went to OPs for removal of stitches and while removing the stitches the complainant asked as to why his arm is not working and the shoulder has been getting severe pain, upon which OPs told that the insurance company was not responding properly for insurance sum if the thin wire would have been inserted that is why the plates have been fixed. OPs assured that his pain would be removed very shortly and shoulder and arm would start properly working within short span. When complainant did not get any relief in pain and movement of arm, he again visited the Shri Hari Hospital for further consultant, whereupon x-ray was conducted and doctor concerned opined that wrong operation has been done and long screws have been inserted alongwith steel plates and these screws are clearly showing in the x-ray and the negligence in the operation is route cause of pain as these screws are pressing the nerves and damaging the same. The doctor had opined to further operation to remove the fault screws and plates.

2.             In order to get further information, complainant went to Amrit Dhara Hospital, Karnal and obtained expert opinion who also further x-rayed the arm and shoulder of the complainant and found that the OP has operated negligently and fitted the long screws and clearly opinioned that it is clear cut case of medical negligence and even used the words that doctor who has operated seems to have no knowledge of fixing of plates and screws and also opined that should would have been fixed only by way of thin wire. Since the complainant was suffering severe physical pain and his shoulder and arm were not working properly, somebody opined him to get further check up from Doctor Anybhav Jain of Muzafar Nagar (UP), who is running Vardhman Trauma Pvt. Ltd. Hospital. The complainant went to Muzafar Nagar and contacted with Dr. Abhinav Jain who gave his opinion that the complainant will remain in the same condition for entire life as the doctor who has operated has committed clear cut medical negligence and blunder mistake has been done, if he wants to get the pain removed and wants to get right operation then second operation will be conducted upon him.  The said hospital of Dr. Abhinav Jain was not in working due to lock down and since the complainant was getting unbearable and intolerable pain due to his restrictive movement. Then complainant visited the Fortis Hospital at Mohali on 16.05.2020. The doctor concerned thoroughly checked up the complainant and conducted various tests and found that the movement of the arm and shoulder of the complainant is only 20% and the entire problem was due to damaging of nerves while fixing the screws and plates in the shoulder by the OPs. After conducting all the test, doctor concerned of Fortis Hospital, Mohali called the complainant on 23.05.2020 and also directed to pay a sum of Rs.1,14,000/- in order to remove the fault made by the OPs.  Besides paying the said amount, complainant had also spent more than Rs.2 lakhs on medicines, attendants, outside tests etc. Even after spending huge amount, the arm and shoulder of complainant is not working more than 20% and complainant is unable to raise his arm. He is not even able to do his daily routine work including taking bath etc. The complainant now again consulted with the doctors of Fortis Hospital who are now giving opinion that if the complainant wants better working from his arm and shoulder he has to get it replaced and this shoulder replacement may cost for Rs.five lacs besides other expenses and this replacement of shoulder may be working only for ten years and thereafter again fresh operation would be conducted and this way complainant has to suffer for the act and conduct of the OPs for whole. The complainant has suffered till today to the tune of Rs. twelve lacs and future there may also be expenses incurred on further treatment about Rs.five lacs besides this the complainant has suffered physical pain, mental harassment which cannot be compensated in money value. Complainant requested the OPs for compensation regarding the medical negligence, but they did not pay any heed to the request of complainant. In this way there is deficiency in service on the part of the OPs. Hence this complaint.

3.             On notice, OPs no.1 to 3 appeared and filed its written version, raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that there is no expert evidence on record to suggest any negligence committed by the OPs. In the present case, neither any medical literature is filed by the complainant to establish his case. It is further pleaded that complainant came to the hospital of OP no.3 on 29.01.2020 at 5.00 p.m. with the history of injury of right shoulder after a fall on the hard surface. X-ray was performed at Bharat x-ray and ultrasound Karnal and the patient was diagnosed as having a fracture of neck of humerus on right shoulder. This type of fracture required surgery. The patient was explained the injury and standard mode of treatment. His brother was also present at that time. The complainant as well as his brother after duly understanding the procedure to be followed gave their consent in written for conducting the operation. Therefore, the patient was operated upon on 30.01.2020. A Titanium philos locking plate of four screws was implanted to fix the fracture. The operation was conducted by OPs no.2 and 3 by following the recommended protocol and the patient was discharged in a satisfactory condition on 01.02.2020. The patient again visited the hospital after few days for removal of stitches. On examination, the stitches were found healthy and the surgical wounds had healed and there was no sign of infection. The stitches were removed by following protocol and the patient went back in a satisfactory condition. Thereafter, the patient never approached the OPs for following up treatment or other complaint associated with the surgery. It is further pleaded that this type of surgery requires follow-up treatment and physiotherapy for the proper movement of the shoulder joint. The said Physiotherapy is required to be done immediately after the surgery to prevent the stiffness of the shoulder. However, the patient did not turn up in the hospital for any further treatment or advice. It is denied that at the time of admission, it was told by the OPs no.2 and 3 that only a thin wire will be implanted in the shoulder of the complainant in order to give support and this work will be done by way of laser technique.

4.             It is pertinent to mention here that there is no recommended procedure world over of uniting any fracture by way of wire through bone and skin without given incision. Similarly, there is no technique vide which the wire can be guided to unite the fracture by way of laser. The procedure to unite the fracture is decided after taking into consideration several factors including the age of the patient, nature of fracture and any other medical co-morbidity being suffered by the patient. In the present case, complainant was more than 60 years of age and was suffering from diabetes. In such type of patients, Osteoporosis sets in and bones become brittle and do not have the same strength as of a young man and therefore, the fracture cannot be held together by a wire in such type of patients and therefore, the recommended procedure is implantation of the locking plate. The wire method is used in patients of young age when the bones are strong enough to hold the wire. As per the medical text books and research papers, in a patient of higher age, the recommended procedure is to use locking plate i.e. Proximal humeral Interlocking Osteo Synthesis (P.H.I.L.I.S.). It is incorrect that plate fixation was done to fetch any higher amount from the insurance company. Rather the same was performed taking into consideration various factors such as nature of fracture, age of the patient and medical co-morbidity being suffered by the patient.  It is further pleaded that at times, in such type of patients, there occurs screw perforation due to bones being osteoporotic and in that eventuality penetrating screw is removed by way of surgery. In the patient where bones are osteoporotic, the chance of screw migration after collapse of fracture in an attempt for bone union is a natural way. So, when collapse occurs, part of screw can penetrate in the joint as this is a locking plate so the plate alongwith screw moves forward. After collapse of bone in an attempt to unite the bone the screw alongwith plate come forward and sometimes screw penetrate the joint. The fracture of the complainant has united after collapse. The penetration rate in locking plate after collapse of fracture is a natural process over which the operating surgeon has no control. The universal rate of penetration of screw is 8% to 14%. The primary screw perforation is most frequent which amounts to 40% and secondary perforation after collapse of bone is about 8%. The patient has to get penetrating screw removed as and when it appear in the x-ray. As patient never came for follow-up so he did not seek any advice from the OPs for removal of screw. The screw inside the bone can never damage the nerve as the nerve is never located in the joint. The patient was operated on 30.01.2020 and was discharged in a satisfactory condition on 01.02.2020. He was prescribed required medicines to be taken by him. However, the complainant did not turn up in the hospital of OPs for physiotherapy. The physiotherapy is an important part of rehabilitation process as it prevents freezing of shoulder. However, the complainant did not follow the said advice seriously and never came for physiotherapy in the hospital of OP no.3. It is incorrect that complainant went for second opinion to Shri Hari Hospital, Karnal where the Doctor opined that exact opinion cannot be given until the stitches are removed. The complainant never mentioned to the OPs regarding any visit to Shri Hari Hospital, Karnal or any opinion given by the Doctor. It is also incorrect hat at the time of removal of stitches, the complainant was told that the insurance company was not responding properly for insurance sum if the thin wire would have been inserted that is why the plates have been fixed. It is also incorrect that Dr. Abhinav Jain of Vardhman Trauma Pvt. Ltd. Hospital, Muzaffar Nagar opined that the complainant will remain in the same condition for entire life as the doctor who has operated has committed clear cut medical negligence and blunder mistake has been done by the OPs. It is also denied that Doctor of Fortis hospital at Mohali found that the movement of the arm and shoulder of the complainant is only 20% and the entire problem was due to damaging of nerve while fixing the screws and plates in the shoulder by the OPs. It is further pleaded that the nerve injury can be ascertained by way of two investigations i.e. Electro Myography and Nerve Conduction Velocity. These tests are recommended to know whether the damage to nerve is Neuro Paraxia, Neuro Temisis or Axono Temisis. However, no such test was ever conducted by the Doctor at Fortis Hospital before or during the surgery. Had there been any nerve injury, deltoid muscle would have been paralyzed with loss of power of main abductor of shoulder and the round contur of the affected shoulder would have been lost. Moreover, complainant was never examined by any Neurologist or Neurosurgeon regarding the alleged nerve damage. No specialist was consulted by Orthopaedic Doctor before, during or after the surgery to ascertain the status of nerve and Orthopaedic Surgeon could not have given his opinion regarding the status of nerve more so, when the abovesaid recommended tests were not performed by any of the consulting doctor. It is also incorrect that the doctor at Fortis Hospital had opined that any act of the OPs is a case of any medical negligence or nerve had been damaged due to fixation of wrong plate or long screw. There is no deficiency in service and negligence on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             OP no.4 filed its separate written version raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that for the proper adjudication of the case/issue involves in the present case, elaborate evidence as well as experts opinion and cross examination of witnesses is required. Hence this is a fit case to be referred to civil court. It is further pleaded that the complainant has not placed on record any opinion of expert doctor or of the medical board to allege the negligence on the part of the OPs no.1 to 3. In the absence of certificate of board or of expert opinion regarding negligence of OPs no.1 to 3, the present complaint is liable to be dismissed. It is further pleaded that complainant has been treated by the doctors at Haryana Nursing Home, Karnal. As per discharge summary Dr. Gaurav Sachdeva treated the patient and the OP is the insurer of OP no.3, which has no concern with treatment of patient and as such the OP is not liable to pay any compensation being insured of OP no.3 and lastly prayed for dismissal of the complaint qua OP no.4.

6.             OP no.5 in filed its written version and raising preliminary objections with regard to maintainability; locus standi; cause of action and concealment of true and material facts. On merits, it is pleaded that there is violation of terms and conditions of the policy on behalf of the OP no.5. Thus, the OP no.5 is not liable to indemnify the complainant. At the same time, the insurance company is liable to indemnify the doctor. It is further pleaded that there is no expert evidence on record which can determine the negligence of the treating doctor, thus the complainant is not liable to indemnify the claim of the present complaint and lastly prayed for dismissal of the complaint qua OP no.5.

7.             Parties then led their respective evidence.

8.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of discharge summary of Haryana Nursing Home, Karnal Ex.C1, copies of receipts dated 11.02.2020, 05.03.2020, 11.05.2020, 15.05.2020, 16.05.2020 Ex.C2 to Ex.C6, copy of discharge summary of Fortis Hospital, Mohali Ex.C7, copy of bill dated 25.05.2020 Ex.C8, copy of CT scan report Ex.C9, CT scan images Ex.C10 and Ex.C11 and closed the evidence on 25.11.2021 by suffering separate statement.

9.             On the other hand, learned counsel for the OPs no.1 to 3 has tendered into evidence affidavit of Dr. K.L. Sachdeva Ex.RW1/A, affidavit of Dr. Gaurav Sachdeva Ex.RW2/A, copy of statement of complainant Ex.R1, copy of statement of Dr. K.L. Sachdeva Ex.R2, copy of investigation report Ex.R3, copy of treatment record Ex.R4, copy of medical literature Ex.R5, copy of judgment Ex.R6 and closed the evidence on 19.07.2022 by suffering separate statement.

10.           Learned counsel for the OP no.4 has tendered into evidence affidavit of K.K. Sachdeva, Senior Divisional Manager Ex.RW4/A, copy of insurance policy Ex.R7, copy of terms and conditions of the insurance policy Ex.R8 and closed the evidence on 19.07.2022 by suffering separate statement.

11.           Learned counsel for the OP no.5 has tendered into evidence affidavit of Sanjeev Mandan, Senior Divisional Manager Ex.RW5/A, copy of insurance policy Ex.R5/1, copy of terms and conditions of the insurance policy Ex.R5/2 and closed the evidence on 04.03.2022 by suffering separate statement.

 12.          We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

13.           Admittedly, complainant slipped away and received right shoulder injury.  It is also admitted the surgical procedure of right shoulder of complainant was done by the OPs no.1 to 3.

14.           The moot question arises for consideration in the present complaint is that whether the OPs no. 1 to 3 were negligent while conducting the operation of the complainant?

15.           A board of doctors was constituted. The medical board has recorded the statement of complainant Ex.R1 on 09.10.2020 and the statement of Dr. K.L. Sachdeva (OP no.3) and prepared their expert report Ex.R3, which is reproduced as under:-

1.     The surgical procedure of locking plating (PHILOS) done on the patient Shri Amritpal Singh at Haryana Nursing Home 2 Karnal for the fracture neck of humerus was performed after obtaining the consent of patient and after obtaining permission from the Chola Mandlam Insurance Company. He was aware of the procedure of plating for treatment of his fracture neck humerus, which he signed after going through the procedure to insurance company.

        The locking plate (PHILOS) is a standard method of treatment for such type of fracture he suffered and not the wiring or external fixator method.

2.     Penetration of screw in the joint space can occur in osteoporotic bone as patient is 60 years of age and has medical co-morbidities like diabetes and sarcoidosis which he is suffering from for the last many years as admitted by the patient. There is no error in the procedure performed, the change of perforation is beyond the control of operating surgeon in such patients. Penetration is a nature way, in an attempt to unite the fracture because of collapse of fracture and screw may penetrate in the joint. Patient was advised to get it removed in case of penetration of screw. This fact of penetration is corroborated in literature and is unavoidable and is a natural process.

3.     Nerve Injury, the operating surgeon at Haryana Nursing Home 2 Karnal has admitted and there was no nerve injury before/during and after surgery and also most of the orthopedic surgeons whom he consulted has not mentioned nerve injury in their clinical examination. Even the orthopedic surgeon which operated him at Fortis Hospital, Mohali examined him on 16.05.2020 and as not opinioned any nerve injury. Patient has also admitted not having told at Fortis Hospital about nerve injury. No test as EMG/NCV was done to confirm the nerve injury at Fortis Hospital, these test are must to confirm whether there is any nerve injury or not. Patient did not have any history of numbness over the shoulder after surgery. At present also patient is not having any numbness over the shoulder. The stiffness of shoulder is as a result of non-adherence to physiotherapy which was advised by most of the Orthopedic surgeons. He consulted and advised by doctor at Haryana Nursing Home, Karnal on the date of discharge of patient and he has admitted not doing physiotherapy.

In view of the above observations, the boards members are of the opinion that the procedure of locking plate (PHILOS) done is a standard method and penetration of screw is a natural process. There is or was no nerve injury before or after surgery at Haryana Nursing Home 2 Karnal. Stiffness of shoulder joint may be due to non compliance of physiotherapy and patient being diabetic having more changes of frozen shoulder.

16.           Abovesaid medical board had been constituted on the request of complainant. The statement of the complainant has been recorded by the medical board on 09.10.2020 and the statement of the OP no.3 on 28.10.2020 and thereafter the doctors of medical board have prepared report Ex.R3. The present complaint has been filed by the complainant on 30.07.2020 and complainant has tendered his affidavit Ex.CW1/A alongwith other documents on 25.11.2021. During the course of evidence complainant has not rebutted the report of medical board Ex.R3. The said report has been prepared by the committee of the doctors and as per the said report there is no negligence on the part of the OPs. Hence, in view of the above, OPs are not deficient in their services.

17.                 Thus, in view of the above discussion, the present complaint is devoid of any merits and same deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:10.05.2023                                                                     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

    (Dr. Rekha Chaudhary)

                                       Member