Haryana

Karnal

CC/308/2015

Munish Kumar Sharma S/o Ishwar Chander Sharma - Complainant(s)

Versus

Haryana Nurssing Home - Opp.Party(s)

04 Apr 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                       Complaint No.308 of 2015

                                                      Date of instt. 11.12.2015

                                                      Date of decision:04.04.2018

 

Munish Kumar Sharma son of Shri Ishwar Chander Sharma resident of House no.66, near Dronacharya School, Ward no.26, Narkatari Road, Dedar Nagar Thanesar Kurukshetra-136119.

                                                                                                                                                                        …….Complainant.      

                                        Versus

 

1. Haryana Nursing Home Sector -14, Karnal-132001 Dr. K.L. Sachdeva.

2. New India Assurance Company Ltd. Karnal through its Divisional Officer, Divisional Manager, Karnal.

 

                                                                     …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act.            

 

Before   Sh. Jagmal Singh……President  

              Sh. Anil Sharma…….Member

             

 

 Present  Complainant in person.

                Shri G.P. Singh Advocate for OP no.1.

                Shri Parveen Daryal Advocate for OP no.2.

               

ORDER:                    

 

                         This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant fell down from cycle and his right knee joint was fractured. The complainant went to the OP no.1, who conducted the x-ray and thereafter advised for operation. OP no.1 conducted the operation of the right knee joint. The complainant spent Rs.25000-30000/- on the tests, operation and medicines. The complainant gave many times Rs.250/- for getting the dressing on his injury. The complainant could not move properly even after the operation and after 4-5 months the leg of the complainant became weak and the leg did not bear the weight of the complainant. At the time of operation an Anesthesia injection was given in the spinal cord of the complainant and thereafter pain has been started in the spinal cord of the complainant. The complainant became handicapped due to the wrong operation conducted by the OP no.1. The complainant alleged that due to the negligence of the OP no.1 the complainant became handicapped. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs, OP no.1 appeared and filed written statement raising preliminary objections with regard to maintainability; bad for mis-joinder and non-joinder of necessary parties; complainant is estopped from filing the present complaint by his own act and conduct and concealments of true and material facts. On merits, it is submitted that on 18.5.2015, the complainant was admitted in the hospital of the  OP

no.1 after sustaining fracture of right lateral femoral condoyle (Postero-lateral part-HOFFA’s fracture) after falling from the cycle. After clinical examination and Radiological confirmation of the fracture, the complainant was operated upon on the same day. The fracture was fixed with two legs screws with washers, which is a standard orthopedic procedure in such like fractures. Because of the fracture condyle part, there was lateral instability because of disruption of lateral ligament complex. After adequate fixation during the operation, there was no instability. The patient was discharged in a satisfactory condition on 20.5.2015. He was advised a regular follow-up and was also advised not to bear weight on injured lower limb without medical advice.  He was also advised to follow physiotherapy regime to strength the knee ligament and quadriceps muscles. A note in this regard was specially given in the Indoor Patient File and was duly signed by the patient. A sum of Rs.10,300/- was charged from the patient vide receipt no.1651 dated 20.05.2015. However, the patient did not come up for any follow-up advice and did not undergo regular physiotherapy and instead of visiting the hospital of OP no.1, the complainant filed a complaint no.117565 at C.M. Window against the OP no.1. An inquiry was conducted on the said complaint by Senior Orthopedic Surgeon Dr. Vinod Kamal of Kalpana Chawla Government Medical College, Karnal who also sought the opinion of Doctor Mohit Jindal, Assistant Professor Orthopedic at Kalpana Chawla Government Medical College, Karnal. Both the Doctors opined that the fracture was adequately managed by operating surgeon and the procedure done to fix the fracture was as per the standard orthopedic procedure and that no negligence has been committed in the treatment given to the patient. It was also observed by the said Doctors that the lateral knee instability of the patient is because of non-compliance of the advice given to the patient who did not adhere to the physiotherapy regime. Infact, during the course of inquiry, the complainant had admitted that he did not undergo any physiotherapy after the operation. Hence there was no deficiency in service on the part of the OP no.1 and prayed for dismissal of the complaint.

3.             OP no.2 appeared and filed written statement raising preliminary objections with regard to locus standi; there is no deficiency in service; complainant is estopped from filing the complaint by his own act and conduct; complicated questions of law and facts are involved, which cannot be decided in summary jurisdiction and complainant has not come before this Forum with clean hands. On merits, it is submitted that OP no.1 has not complied with the terms and conditions of the policy. It is further submitted that the policy in question was issued to the doctor as per condition 7 and 8 mentioned overleaf of terms and conditions of Professional Indemnity Policy for Doctors and Medical Practitioners. Thus, the insured has failed to comply with terms and conditions of the policy and he has not informed the insurance company which was a condition precedent to indemnify, the insurance company is not liable to compensate the insured. Hence there is no deficiency in service on the part of the OP no.2 and prayed for dismissal of the complaint.

4.             Complainant tendered into evidence his affidavit Ex.C1 and documents Ex.C2 to Ex.C6 and closed the evidence on 18.12.2017.

5.             On the other hand, OP no.1 tendered into evidence his affidavit Ex.OP1/A and documents Ex.OP-1 to Ex.OP-9. OP no.2 tendered into evidence affidavit of Anil Kumar Bhola Sr. Divisional Manager Ex.OP2/A and document Ex.OP-1 and closed their evidence on 13.3.2018.

6.             We have heard the learned counsel for both the parties  and have gone through the record available on the file carefully.

7.             From the pleadings of the parties, it is clear that there is no dispute about the facts that the right knee of the complainant was fractured in an accident by fell down from the bi-cycle. It is also not disputed that complainant went to the hospital of OP no.1, where after x-ray, the operation of his knee was conducted by Dr. K.L. Sachdeva.

8.             The complainant argued that he spent Rs.25000 to 30000/- on the operation, medicines and test and Rs.1000/- as bed charges. It is further alleged that during 20-25 days, he spent Rs.250/- many times for dressing on the injury (wound). It is further alleged that with the help of walker, the complainant tried to mover upto 4-5 month but his leg became weak and did not bear his weight. It is further alleged that while moving, the complainant always feel pain and there was chances of falling down. It is further alleged that the OP no.1 has conducted the operation of his knee negligently and due to this reason the complainant is suffering. It is also argued that the doctor has admitted about the wrong operation after seeing the x-rays before the witnesses of the complainant. It is further argued that on the call of the OP no.1, the complainant went to the OP no.1 for operation again and get some test conducted but did not get him operated again because many patient were became handicapped after operation by the OP no.1. The complainant also gave written argument.

9.             The learned counsel for OP no.1 contended that on 18.5.2015, the complainant was admitted in his hospital due to fracture of right lateral femoral condoyle (Postero-lateral part-HOFFA’s fracture) and was operated upon on the same day.  He further argued that the fracture was fixed with two legs screws with washers, which is a standard orthopedic procedure in such like fractures. Because of the fracture condyle part, there was lateral instability. The patient was discharged in a satisfactory condition on 20.5.2015. He was advised a regular follow-up and was also advised not to bear weight on injured lower limb without medical advice.  He was also advised to follow physiotherapy regime to strength the knee ligament and quadriceps muscles. A sum of Rs.10,300/- was charged from the patient vide receipt no.1651 dated 20.05.2015. However, the patient did not come up for any follow-up advice and did not undergo regular physiotherapy and instead of visiting the hospital of OP no.1, the complainant filed a complaint no.117565 at C.M. Window against the OP no.1. He further argued that an inquiry was conducted on the said complaint by Senior Orthopedic Surgeon Dr. Vinod Kamal of Kalpana Chawla Government Medical College, Karnal who also sought the opinion of Doctor Mohit Jindal, Assistant Professor Orthopedic at Kalpana Chawla Government Medical College, Karnal. Both the Doctors opined that the fracture was adequately managed by operating surgeon and the procedure done to fix the fracture was as per the standard orthopedic procedure and that no negligence has been committed in the treatment given to the patient. It was also observed by the said Doctors that the lateral knee instability of the patient is because of non-compliance of the advice given to the patient who did not adhere to the physiotherapy regime. It is further contended that the operation of the complainant has been conducted with due care and as per procedure prescribed by the medical jurisprudence and there was no negligence on the part of the OP no.1. It is further contended that the complainant has not adduced any evidence vide which it can be proved that the OP no.1 was negligent.

10.            To prove his case the complainant produced in his evidence affidavit Ex.C1 of one Sunil Kumar, document Ex.C-2 which is replication to the reply of OP no.2, Ex.C3 is the copy of application addressed to the Commissioner, Excise, Sales, & VAT Karnal, Ex.C-4 is the copy of application made to the CMO, Karnal, Ex.C-5 is the copy of application dated 27.09.2017 allegedly made to this Forum for passing order on the application dated 2.2.2014 lying on the file and Ex.C-6 in the application allegedly made before this Forum for adjournment. No other evidence has been produced in the complaint. Out of the above documents, only affidavit Ex.C-1 of Sunil Kumar is relevant, who stated in his affidavit that after seeing the x-ray, doctors admitted about mal-union of the bone. The said Sunil Kumar was not produced by the complainant before the Forum even for tendering his affidavit and his affidavit has been tendered in evidence by the complainant himself. So, only his affidavit, without his cross-examination is not sufficient to held that OP no.1 was negligent in conducting the operation of the complainant. It is pertinent to mention here that the complainant has not tendered his affidavit in his evidence. It is further pertinent to mention here that there is no application dated 2.2.2014 on the file as alleged by the complainant in application C5.

11.           On the other hand, OP no.1 produced on the file in his evidence, the copy of inquiry report as Ex.OP-2 (alongwith statements of complainant and OP no.1 as Ex.OP-3 & Ex.OP4 and medical record Ex.OP5 to Ex.OP-9). The inquiry was conducted by Dr. Vinod Kamal, Senior Medical Officer, Kalpana Chawla Govt. Medical College Hospital (herein after referred as KCGMCH) Karnal and the same was sent to Dy. Medical Superintendent of KCGMCH, who also agree with the inquiry report Ex.OP-2 as is clear from the endorsement on it. The inquiry Officer found that the operation in question was conducted correctly with recognized method and there was no negligence in the treatment. Dr. K.L.Sachdeva had obtained the consent of the patient before treatment. On the examination of all the documents of admission it is found that the patient (complainant) has not followed the instructions given by the doctor and the advice of physiotherapy and due to this reason there was lateral knee instability. It is pertinent to mention here that Dr. Vinod Kamal, Inquiry Officer also obtained the  opinion of Dr. Mohit Jindal, Assistant Professor, Orthopedic Department, KCGMCH, Karnal. It is further pertinent to mention here that the inquiry was conducted on the complaint of the complainant. From these circumstances, it is clear that the OP no.1 has produced the evidence of expert i.e. the inquiry report Ex.OP-2 vide which it has been proved on the file that no negligence on the part of OP no.1 was found in conducting the operation of the knee of the complainant.

12.           In view of the above discussions, it is clear that the complainant has not produced any such evidence vide which it can be said that the OP no.1 has conducted his operation negligently, rather the OP no.1 has produced the evidence of the expert who found no negligence on the part of the OP no.1 in conducting the operation of the complainant.  In these facts and circumstances of the case, we are of the considered view that the complainant has failed to prove any negligence on the part of the OP no.1 by cogent evidence. Hence we found no merits in the complaint and accordingly the 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: 04.04.2018

                                                                       

                                                                         President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

 

                    (Anil Sharma)

                       Member