BEFORE THE DISTRICT CONSUMER DISPUTES

                                                       REDRESSAL FORUM, JALANDHAR.

Complaint No.481 of 2015

Date of Instt. 05.11.2015

Date of Decision: 18.12.2018

Jaspreet Parhar Son of Sh. Ajaib Singh, resident of House No.C-3, behind Punjab and Sind Bank, Village Reru, Tehsil and District Jalandhar.

..........Complainant

Versus

1. Joshi Hospital, Multi Superspeciality Hospital, Kapurthala Chowk, Jalandhar, through its Managing Director/Chairman.

2. Dr. Sudhir Sood, Neuro Spinal Surgeon, Joshi Hospital, Multi Superspeciality Hospital, Kapurthala Chowk, Jalandhar.

3. The Oriental Insurance Company Limited, DO 3 New Delhi, 4E/14, Azad Bhawan Jhandelwalan Ext. New Delhi Delhi 110055 through its D. O.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Kuldeep Singh, Adv Counsel for the Complainant.

Sh. Anil Kalia, Adv Counsel for the OPs No.1 and 2.

Sh. Brijesh Bakshi, Adv Counsel for the OP No.3.

Order

Karnail Singh (President)

1. This complaint has been filed by the complainant, wherein alleged that in the month of December, 2014 the complainant having severe pain in his left leg, left foot and having back pain and for his treatment, he was admitted in hospital of OPs on 10.12.2014. The OPs got conducted MRI of the complainant on 10.12.2014 and as per MRI report, there is a problem in L5-S1 Massive Disc Prolapse. Other investigations were also performed by the OPs on the complainant. The OP No.2 diagnosed L5-S1 Massive Disc Prolapse and operated the complainant on 10.12.2014 by adopting the method of Microlumbar Discectomy and removed disc L5-S1. The OPs kept the complainant in hospital for four days and discharged the complainant on 13.12.2014. The OPs assured that disc L5-S1 has been removed and there shall be no problem in future. The OPs prescribed medicines and advised for follow up and for bed rest and, the complainant followed up and for bed rest and the complainant followed up the prescription and medicines as advised by the OP No.2. The medical expenditures and the operation charges etc. of the complainant at the Joshi Hospital are about Rs.91,885/-. However, the total charges of operation and medical expenditure, room charges are Rs.95,000/-, but due to serious problem, many bills/receipts of medicines expenses were not taken by the complainant and even miscellaneous expenses are also incurred by the complainant. Copies of all the documents are attached.

2. That in March, 2015, the complainant faced the same problem and having pain in his left leg, left foot and back pain, so, the complainant approached the OPs on 23.03.2015 and accordingly, OP No.2 prescribed medicines and advised for physiotherapy. Again in June, 2015, the complainant faced the same problem and the condition of the complainant deteriorated and having pain in his left leg, left foot and back pain, so the complainant approached the OPs on 06.06.2015 and OP No.2 again prescribed medicines and advised for physiotherapy. But the treatment of OP No.2 has no relief of pain and thus, the complainant got conducted his MRI on 29.06.2015 from Shree Devi Talab Mandir Charitable Hospital, Tanda Road, Jalandhar City and as per report, there is a problem in disc L5-S1. In other words, the OP No.2 has conducted the operation in negligent manner and have not removed the disc L5-S1, due to which the complainant faced the problem.

3. Thereafter, the complainant approached the Satyam Hospital, Kapurthala Chowk, Jalandhar for his treatment. Dr. Rajesh Pasricha, thoroughly examined the complainant and went through the medical history and both MRIs of the complainant and advised re-operation of the disc L5-S1.

4. That on 01.07.2015, the re-operation of the disc L5-S1 was conducted by Dr. Rajesh Pasricha of Satyam Hospital, Kapurthala Chowk, Jalandhar. The medical expenditure and the operation charges etc. at the Satyam Hospital was about Rs.1,30,000/- in total including room charges.

5. That both OPs No.1 and 2, who are super specialist and claimed to run a fully equipped and efficient advanced Neurological & Spinal Centre, but the OPs have conducted the operation in negligent manner and have not removed the disc L5-S1 due to which the complainant faced the same disc problem, whereby the complainant remained in pain from December 2014 to July 2015 and also faced physical pain, mental torture, loss of work, loss of money and the family of the complainant also suffered due to faulty operation conducted by the OPs and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and compensation to the tune of Rs.10,00,000/- on account of physical pain, mental torture, loss of work, loss of money suffered by the complainant may be awarded to the complainant and further litigation expenses may also be awarded to the complainant as deemed fit by this Forum.

6. Notice of the complaint was given to the OPs and accordingly, OPs No.1 and 2 appeared through its counsel and filed its joint reply, whereby contested the complaint by taking preliminary objections that the present complaint is baseless, frivolous, misconceived, vexatious and is only an attempt to malign the OPs and blackmail them into parting with money. It is further averred that the complainant fails to elucidate as to how and in what manner the OPs have been negligent nor is it supported by any medical evidence to that effect. On merits, it is admitted that the complainant got admission as well as an operation was conducted in the hospital, but the other allegations are categorically denied and further submitted that the complainant approached to the OP No.2 in OPD on 10.12.2014 with low back pain with excruciating pain in left leg for the last 15/16 days, difficulty in walking or standing, tingling and numbness in left leg and foot. Suspecting it to be a case of prolapsed disc, OP No.2 advised MRI Scan of his lumbosacral spine. The MRI scanning done in Super Scanning & Diagnostic Center, Anuj Tower, Kapurthala Chowk, Jalandhar showed large Rent (tear) involving Annulus Fibrous of L5-S1 disc with accompanying left paracentral Extrusion of Nucleus Pulposus (disc), causing left lateral recess stenosis and resultant compression of left pre-existing SI nerve root, along with a mild posterior disc bulge at L4-L5. The complainant was clearly explained in detail about the nature of his disease and the need for surgery for relief of symptoms and also all risks involved and prognosis after surgery. Only thereafter, i.e. after understanding these factors, complainant gave written, informed consents for undergoing anesthesia & Surgery etc. The surgery was performed by OP No.2 on 10.12.2014 on the complainant and left sided L5-S1 level micro lumber discectomy was done. It involves removal of the disc fragment which is the degenerated part of nucleus pulposus, that has detached itself from the healthy nucleus pulposus and migrated into the lateral recess to cause nerve root compression. A small incision was made at L5-S1 level under C-Arm guidance and deepened to the laminal level. Using left side interlaminal approach, left L5-S1 lever was exposed, and the extruded disc fragment was removed using a microscope. By removal of this degenerated disc fragment by micro lumber discectomy, the nerve root was thoroughly decompressed which resulted in instantaneous pain relief to the complainant. The remaining healthy nucleus pulposus is not recommended to be removed in young patients as it is required for normal functioning of the spine. The patient was able to comfortably stand and walk on the next day of surgery. All pre-operative symptoms of complainant had abolished. The complainant was discharged on 13.12.2014 in fit condition. Complainant was came for postoperative follow up after one week i.e. on 20.12.2014 and he was well, with not preoperative symptoms, there was no numbness or pain in the leg or back, hence, all analgesics (pain killers) were stopped, the operative wound had healed clearly and the sutures were removed. The complainant was advised simple medication for nerve recovery for 10 days. It is further submitted that the OP No.2 is a super specialist in neuro surgery, with DNB which is a super specialist qualification and is an experienced surgeon in this field in the last 11 years and further submitted that the complainant remained symptom free for next many months. He came after 3 months, in March 2015 with complaint of low back ache and stiffness, but no pain or numbness in the leg or back. The complainant at that time told OP No.2 that he had resumed touring mainly on a two wheeler and some times a car. Simple analgesics were prescribed for one week and he was advised to take due precautions while working and driving. Thereafter, the complainant again came to the OPD on 06.06.2015 with mild back ache and leg pain which reportedly had occurred due to excessive physical activity including driving and riding a two wheeler. The complainant was again advised medicine and physiotherapy and he was advised to limit his physical exertion including driving and thereafter, the complainant did not follow up and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

7. OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the complaint of the complainant is not maintainable under the law against the answering OP because the complainant is not a consumer qua the answering OP and as such, the complaint is liable to be dismissed and further submitted that without admitting any liability, it is submitted that the OP No.3 had insured the OP No.2 under the Professional Indemnity Policy for Doctors subject to the respective policy conditions and further submitted that no liability qua the answering OP can be fixed in the present complaint. The matter interse the insured and the insurer is to be decided by the insurance company by determining whether any claim is covered under the respective policy/policies obtained by the concerned doctor or hospital and thereafter, the liability of the insurance company, if any, is to be determined by the competent authority of the company, as per the terms and conditions/exclusion clauses of the policy. As such, no relief can be directly granted in favour of the complainant in the present complaint against the answering OP. On merits, the contents of the complaint are categorically controverted and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

8. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-34 and closed the evidence.

9. Similarly, counsel for the OPs No.1 and 2 tendered into evidence affidavit Ex.OP1-2/A alongwith documents Ex.OP1-2/1 to Ex.OP1-2/3 and closed the evidence.

10. Similarly, counsel for the OP No.3 tendered into evidence affidavit Ex.OP3/A alongwith document Ex.OP3/B and closed the evidence.

11. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.

12. From the pleadings of the respective party, it has become clear that the OP No.1 and 2 had conducted the operation of the complainant on 10.12.2014 and OP No.3 is Insurance Company, who provided insurance to OP No.2 and the case set up by the complainant is only that the operation so conducted by the OP No.2 of the complainant in regard to L5-S1 disc, was not conducted properly rather it was done negligently without caring and taking precautions of the medical jurisprudence and as such, the complainant alleged that the OPs are negligent and therefore, they are liable to compensate the complainant by making a payment of the compensation because the complainant has to get conduct re-operation of the same disc L5-S1 from Satyam Hospital, Jalandhar on 01.07.2015.

13. Before imparting with the liability of OP No.1 and 2, we like to discus the responsibility of OP No.3 in the instant case, admittedly OP No.2 got insurance policy from OP No.3 and in this case, the two OPs cannot contest interse in proper manner because the OP No.2 has not made any direct allegation or claim any liability upon the OP No.3 and moreover, if there is any negligence concluded of OP No.2, then he become entitled to get insurance claim from OP No.3 by adopting due process of law i.e. by submitting a claim form, which will be considered by the competent authority of insurance company according to the terms and conditions as well as by carrying the exclusion clause. So, in this complaint, we cannot fasten any liability of OP No.3.

14. Coming to the interse case of the complainant, OP No.1 and 2. No doubt, the OP alleged that the operation was conducted by the doctor i.e. OP No.2, who is well experienced surgeon in this field and having at least 11 years experience and he is a Super Specialist in neuro surgery with DNB, which is a super specialist qualification. The qualification and experience of the OP No.2 has not been challenged by the complainant rather the complainant alleged only that the operation of the complainant was conducted by negligent manner and as such, we are of the opinion that with an experience and well qualified person can commit a mistake by doing anything with a negligent manner or by ignoring the norms of medical jurisprudence. So, the instant case required deep and thorough consideration for reaching a right conclusion.

15. The OP No.1 and 2 themselves admitted in the written reply that MRI of the complainant was got done from Super Scanning & Diagnostic Center, Jalandhar, wherein showed large Rent (tear) involving Annulus Fibrous of L5-S1 disc with accompanying left paracentral Extrusion of Nucleus Pulposus (disc), causing left lateral recess stenosis and resultant compression of left pre-existing SI nerve root, along with a mild posterior disc bulge at L4-L5. After getting the MRI, it was found that there was a compression of left nerve roots and due to that there is a pain in the leg, back of the complainant and accordingly, a surgery was proposed by the OP No.2 and the method of surgery was adopted by Opposite Party No.2, Microlumbar discectomy.

16. Here, we like to discus what is Posterior Lumbar Discectomy, which is as under:-

“Discectomy literally means “cutting out the disc”. A discectomy can be performed anywhere along the spine from the nec (cervical) to the low back (lumbar). The surgeon reaches the damaged disc from the back (posterior) of the spine-through the muscles and bone. The surgeon accesses the disc by removing a portion of the lamina. The lamina is the bone that forms the backside of the spinal canal and makes a roof over the spinal cord. Next, the spinal nerve is retracted to one side. Next, the spinal nerve is retracted to one side. Depending on your particular case, one disc (single-level) or more (multi- level) may be removed.”

17. It is established on the file that two surgeries were got by the complainant, one from OPs and second from Satyam Hospital, Jalandhar and question arises why the second surgery was required to the complainant i.e. the moot question to be taken into consideration, for that purpose, we have to analyze both the MRI reports as well as Discharge Summary because the other documents are not in dispute like clinical report, bills/receipts of the payment. So, accordingly, we come to the first MRI Report Ex.C-3, which was got conducted by the complainant on the advice of the OPs and the problem mentioned in this MRI Report was L5-S1 disc and same was treated by the OPs by conducting surgery by adopting a method Microlumbar Discectomy and as per report of the OP No.2 that the compression of left pre-existing SI nerve root is released and there is no pain in the leg, back or foot and accordingly, the complainant was discharged as per the Discharge Summary Ex.C-1. The first operation was conducted on 10.12.2014 and then same problem was faced by the complainant in the month of March and then in the month of June and after getting a pain-killer from OP No.2, the complainant make a mind to get second MRI DORSO-LUMBAR SPINE, the same was got conducted from Shree Devi Talab Mandir Charitable Hospital, Jalandhar on 29.06.2015 and in this MRI report, the problem was again in L5-S1 disc, which was shown to the Dr. Rajesh Pasricha, who again advised the complainant for re-operation and for the same problem, the complainant was forced to get second time operation from Satyam Hospital and where he remained admitted from 01.07.2015 to 09.07.2015 and Discharge Summary Ex.C-34 shows that the problem for which the complainant got second operation is of the same problem, which was got operated from OP No.1 and 2 in the month of December, 2014. If we go through the Discharge Summary Ex.C-34 of Satyam Hospital, Jalandhar regarding second operation of the complainant, in the said report, it is clearly mentioned that the remaining part of L5 disc removed, whereas the OPs No.1 and 2 alleged that only the offending fragment was removed just to releave the leg pain caused by disc exclusion. If the OPs No.1 and 2 entered the spinal canal, then he has to identify entire fragment, which is required to be extracted, but the OPs No.1 and 2 did not bother to make a full care in regard to the problem of L5 Disc, which has been removed by the Dr. Rajesh Pasricha in second operation. So, from the above discussion, it is clearly established that there is a negligent on the part of the OPs No.1 and 2, if they conducted the operation by due care and precautions, then the complainant will not suffer mental, physical and economical harassment.

18. Discectomy, a type of surgery in which herniated disc material is removed so that it no longer irritates and compresses the nerve roots. If the entire disc material has been removed by the OPs No.1 and 2, then there will not create any problem to the complainant again, but for not adopting proper care or precautions by the OPs, the complainant suffered a lot. So, with these observations, we are of the opinion that the complainant is entitled for compensation.

19. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs No.1 and 2 are directed to pay the entire charges of second operation as well as medical expenses, to the tune of Rs.1,30,000/-, to the complainant with interest @ 12% per annum from the date of filing complaint, till realization and further OPs No.1 and 2 are directed to pay compensation to the complainant for physical pain, mental torture, loss of work and loss of money, to the tune of Rs.2,00,000/- and also directed to pay litigation expenses of Rs.10,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

20. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

18.12.2018 Member President