Haryana

Ambala

CC/17/2018

BalJeet Kaur - Complainant(s)

Versus

M.M. Institute of Medical Science and Reseratch. - Opp.Party(s)

Amar Jeet Singh

15 Jan 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.:17of 2018.

                                                          Date of Institution  : 10.01.2018.

                                                          Date of decision     : 15.01.2020.

 

BaljeetKaurW/oShriBalwant Singh resident of Village Bazidpur, Tehsil Thanesar, District Kurukshetra.

……. Complainant.

                                                Versus

 

1. M.M. Institute of Medical Science and Research, M.M. Super Speciality Hospital, Mullana, District Ambala through owner/Chairman TarsemGarg. .
2. Dr.UjjawalDebnath, Bone, Joint & Spine Surgeon, M.M. Institute of Medical Science and Research, M.M. Super Speciality Hospital, Mullana, District Ambala.

Second Address: Dr.UjjwalKantiDebnath, resident of house No.10/1D, Anil Moitra Road, Post Office Ballygunj, Kolkata, (West Bengal).

3. The New India Assurance Co. Ltd. Branch Office Civil Lines, AryaChowk, Above OBC Bank, Ambala City through its Branch Manager. (Policy No.35350236160200000044 dated 19.12.2016)

 ….…. Opposite Parties.

 

Before:        Smt. NeenaSandhu, President.

                   Smt. Ruby Sharma, Member.

ShriVinodKumar Sharma, Member.           

                            

Present:       ShriAmarjit Singh, Advocate, counsel for complainant.

ShriP.S.Sharma, Advocate, counsel forOP No.1.

ShriMehar Singh, Advocate, counsel for OP No.2.

ShriSukaam Gupta, Advocate, counsel for OP No.3.

 

Order:        Smt.NeenaSandhu, President

                   Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties(hereinafter referred to as ‘OPs’) praying for issuance of following directions tothem:-

1. To pay Rs.5,00,000/- as compensation on account of the amount spent on the treatment and for mental agony and physical harassment suffered by thecomplainant.
382.  

          Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are thatthe complainant was suffering from spinal problem. She approached the OPs for treatment. On 18.04.2017, she was admitted in OP No.1 hospital and her spine surgery was carried out by the OP No.2 on 26.04.2017. Vide medical report dated 05.05.2017, OP No.2 told that there will be no complication in future. On 29.04.2017, complainant hada severe back pain and tried to contact thetreating doctor i.e OP No.2, but he was not available in the hospital. Even on 30.04.2017, the said doctor was not available in the hospital. As such, due to lack of post-operative care and attention, complainant lost her hearing ability in both ears. Complainant was discharged on 23.05.2017, from the hospital. Said Doctorpromised that her hearing problem will improve shortly, but there was no improvement inspite of the use of medicines suggested by OP No.2. Her follow up treatment continued as suggested by the doctor but she found no improvement in her hearing infirmity. Thereafter, she consulted Doctor Lalit, E.N.T. Care Centre, Kurukshetra, who advised her to use hearing aid machine. As such, she had to spent a lot, but of no avail. Complainant for her treatment had paid Rs.1,71,800/- to the OPs No.1 and 2, out of which 1,50,000/- was reimbursed by the Transport Department, Haryana as her husband retired from the said Department. Thereafter, vide bill No.IN-17052377 dated 23.05.2017 she paid Rs.45,000/-to the OPs No.1 and 2. She had to pay Rs.50,000/- to other doctor from whom she availed treatment. Vide bill dated 31.07.2017, she purchased a hearing aid machine of Rs.25,000/- fromDr.Lalit, E.N.T Care Centre, Kurukshetra. Inspite of use of hearing machine she is not able to hear properly and as such, her life has been ruined due to the sole negligence of the OPs No.1 and 2.Hence, the present complaint.

2.                Upon notice, the OP No.1appeared through counsel and filed written version and have raised preliminary objections regardingbad for non-joinder and mis-joinder of the parties, not come to this Forum with clean hands, concealment of true and material facts, jurisdiction;no locus standi and cause of action. On merits, it is stated that the complainant aged about 62 years was admitted to the Hospital on 18.04.2017. The complainant was a known case of diabetes mellitus, hypertension and hypothyroidism. She had undergone spine surgery in the year 2005, after which she had severe intra-operative bleeding and the surgery had to be abandoned. She came to the hospital with pain in the back and legs and was diagnosed as a case of ‘Failed back Syndrome with instability’. She was offered revision surgery for her ailment. Because of the patient’s obesity, diabetes, hypothyroidism and hypertension, the risks involved in the surgery were clearly and succinantly explained to patient, documented and patient’s signature taken. In the post-operative period, the complainant developed severe wound infection because of her diabetes and hypothyroidism for which she was treated by appropriate antibiotics. Since her infection was life threatening, neurosurgical consultation was also sought and she was started on Inj. Vancomycin, a high generation antibiotic on 02.05.2017. On 03.05.2017, after a single dosage of Inj. Vancomycin, the complainant had a reaction due to which she lost her hearing ability. The drug was stopped immediately and other antibiotics continued. The complainant was examined by the ENT specialist, who gave her appropriate treatment. The complainant’s wound infection slowly healed and on 23.05.2017, she was discharged in a stable. She was advised to follow up in ENT OPD for her hearing loss. To save the life of the complainant, drugs were given. The medical team detected the hearing loss after only one dosage of the drug after which the drug was promptly stopped. As such OP No.1 is not deficient in providing the service and prayed for dismissal of the present complaint against it.

                   Upon notice, the OP No.2appeared and filed written version, raising objections regarding maintainability, barred by the law of estoppel, waiver and acquisance, bad for non-joinder and mis-joinder of parties, limitation, not coming before this forum with clean hands, suppression of true and material facts. It is stated that during counselling it was explained to the complainant and her family that the surgery was a very high risk surgery since it was going to be a 3^rd operation on her lumbar spine. She has significant co-morbidities which may complicate the course in the post-operative period. Since she has previous complications like bleeding, she may have similar episode and may not be able to survive the surgery.  Complainant and her family continued to pursue the medical team for surgery. An informed consent was obtained from her husband. On 25^th April, 2017, she underwent lumbar spine surgery under general anaesthesia (GA). She was positioned prone following GA. She has exposure of lumbar spine through midline incision. She underwent pedicle fixation followed by spinal decompression of spinal nerves from L3/4 to L5/S1. Following intra –operative complication occurred:-

          i)       Intra-operative epidural bleeding requiring 2(two) intra operative blood transfusion;

          ii)      Small 5mm dorsal dural tear at site of adhesions from previous surgery at L5.

          iii)     Dural tear was repaired with 5-0 Prolene& fat graft;

          iv)     No further CSF leak was observed;

          v)      A posterolateral spinal fusion from L3 to S1 was carried out with locally harvested bone graft;

          vi)     During the immediate post-operative period she was treated in intensive surgical care unit (ISCU). She had wound CSF leakage from the 2^nd post-operative day in her lumbar drain. She was started on Diamox 250mg X 3 times a day; She also had drained approximately 300ml of blood in her external drain;

          vii)    She developed meningism with severe headache and high fever. She was given intravenous Ancomycin 1gm and Meropenem to combat severe infection

          viii)   She was given on dose of intravenous vancomycin. On regaining her consciousness from meningism, she complained about acute hearing loss in her both ears on the 3^rd operative day.

                   The hearing loss is suggested to be idiopathic, the cause of which cannot be predetermined in any case neither the acute ototoxicity can be related to the incident for hearing loss after one injection of vancomycin and as such there is no deficiency on his part and prayed for dismissal of the present complaint. 

                   Upon notice, the OP No.3 appeared through counsel and filed written version raising preliminary objections regarding maintainability, jurisdiction, suppressing of true and material facts, not coming with clean hands etc. It is further stated that OP No.3 has issued “PROF INDEMNITY Dr. (OTHER) POLICY” No.35350236160200000044 for the period of 19.12.2016 to 18.12.2017 to OP No.1 only and said policy was issued subject to certain terms and conditions, compulsory excess of Rs.1,00,000, voluntary excess, exclusions etc. of the said policy of insurance, indemnity limit of the policy during the policy period any one year Rs.8,00,00,00/- and any once accident Rs.2,00,00,000/-. The policy in question is an indemnity Policy and if the Hon’ble Forum comes to the conclusion that there is any negligence on the part of OPs No.1 and 2 and any compensation is awarded in favour of the complainant, then the same would be borne by the insured themselves and it shall reimburse the insured, subject to policy cover limit, indemnity limit and to the extent of its limited liability as per the terms and conditions of the policy. The complainant cannot seek the compensation from it as there is no connection, agreement or contract between the OP No.3 and the complainant. On merits, after denying all the averments made by the complainant, prayer has been made for dismissal of the complaint against it.

          3.                The ld. counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1to C-80 and closed the evidence on behalf of complainant. On the other hand, the learned counsel for the OP No.1 tendered affidavit of Dr.Harinder Singh Sandhu, Head of the Unit-II, Department of Orthopaedics, Maharishi Markandeshwar Institute of Medical Sciences & Research, Mullana District Ambala as Annexure OP-A alongwith documents as Annexure OP-1 and closed the evidence on behalf of the OP No.1. On the other hand, the learned counsel for the OP No.2 has not filed any evidence, rather made a statement that the written version filed by the OP No.2, may be read as evidence of the OP No.2. On the other hand learned counsel for the OP No.3, tendered affidavit of Sh. Kamala Kishore Sachdeva, Sr. Divisional Manager of the New India Assurance Company Ltd., Divisional Office, 172-C, Laxmi Niwas, AmbalaCantt. as Annexure OP3/A and closed the evidence on behalf of the OP No.3. 

4.                We have heard the learned counsel of the parties and carefully gone through the case file.

5.                 Moot question in this case is that as to whether there was any medical negligence on the part of the OPs No.1 and 2?

                   In order to resolve the controversy involved in the present, in just, fair and proper manner, this forum preferred to seek opinion of the medical experts specialised in the field of ENT. Accordingly, vide order dated 30.10.2019 the Medical Expert’s opinion of Doctors specialised in the said field from the PGI, Chandigarh was called and report dated 11.12.2019,was furnished by the Members of the said Committee, which is marked as A.

                   At the outset, the Ld. Counsel for the OP No.1 has contended that from the report of the Medical Board it is quite clear that there is no medical negligence on the part of the OP No.1 and 2, because the Doctors of the Expert Committee, so constituted by the Director, PGI Chandigarh,after audiogical tests and clinical examination of the complainant, have opined that the patient has severe sensorineural hearing loss in right ear and moderate sensorineural hearing loss in left ear. Hearing loss could have been caused by vancomycin which is an ototoxic drug. As patient’s age is 66 years as per the records, vancomycin induced ototoxicity is common in elderly patients as reported in literature. He prayed that the present complaint may be dismissed being devoid of merits.

                   On the contrary, the learned counsel for the complainant has contended that as per report of the Medical Experts,hearing loss occurred due to vancomycin, which in an ototoxic drug.Even otherwise, the stand taken by the OP No.1 & 2, in their written version is contradictory to that what has been mentioned in the prescription slip, Annexure C-2.Despite the fact that the Doctor after giving first dose of vancomycin to the complainant, came to know that it does not suit the patient, even then he gave the second dose to the complainant, as a result of which she lost her hearing ability, which amounts to medical negligence.

                   It is of a common knowledge that the Doctors before giving any medicine, give a test dose to check as to whether patient is allergic to the medicine or not, but no such document has been produced by the OP no.1& 2 to prove that before giving the injection of vancomycin, a test was given to the complainant. The stand of the OPs No.1 and 2 is that the consent of the husband of the complainant was taken, but no such document has been placed on record in this regard. Admittedly, OPs No.1 and 2 in their written version have categorically stated that a single dosage of injection of vancomycin was given to the complainant, which reacted as a result whereof the complainant suffered hearing loss and the said drug was stopped immediately. Whereas, in the prescription slip, Annexure C-2, it is found mentioned that after two doses of vancomycin, patient lost hearing ability in both ears. As such, it is established that the OPs No.1 & 2 have taken a misleading stand to defeat the claim of the complainant. It may be stated here that when after giving first dosage of vancomycin, the treating Doctor came to know that the complainant had reaction with the said medicine, then why the second dose was given to the complainant. Meaning thereby, the Doctor concerned was negligent in performing his duties as a result whereof complainant lost her hearing ability in both ears.Admittedly, the OP No.2 wasworking as a Doctor with the OP No.1hospital, as such OP no.1 and OP No.2 are liable to compensate the complainant adequately.

                   Now, coming to the quantum of compensation. Complainant has sought compensation to the tune of Rs.5,00,000/- on account of amount spent by her on her treatment and also for the mental agony and physical harassment suffered by her. It is not out of place to mention here that the complainant has pleaded that she had paid Rs.1,71,800/- to the OP No.1 for her treatment, out of which Rs.1,50,000/- was reimbursed by the Transport Department, Haryana, as her husband retired from the said Department. Undoubtedly, claim of the complainant falls under the category of permanent disability, as such, if we grant Rs.3,50,000/- as compensation to the complainant that will meet the end of justice. From the policy document Annexure OP1, it is evident that the OP No.1 was duly insured with the OP No.3 for the period, when the complainant took the treatment from the OP No.1& 2.The Learned Counsel for the OP No.3 has contended that OP No.3 has no contract with the complainant, therefore the Insurance Company is not liable to pay any claim to her and if the Hon’ble Forum comes to the conclusion that there is any negligence on the part of OP No.1 & 2 and any compensation is awarded in favour of the complainant, then the same would be borne by the OPs No.1 and 2 themselves. The OP No.3 being insurer is only liable to indemnify the insured as per the terms and conditions of the policy.We find force in this contention of the Ld. Counsel for the OP No.3 that OP No.3 being the insurer is liable to indemnify the insured only as per terms and conditions of the policy, therefore, no direction can be issued to the OP No.3 to pay the compensation amount directly to the complainant.

6.                In view of the aforesaid discussion, we hereby allow the present complaint against OPs No.1 and 2. The OPs No.1 and 2 are jointly and severally directed to pay a lump sum amount of Rs.3,50,000/- as compensation to the complainant. The OPsNo.1 and 2 are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 9% per annum from the date of filing of the complaint i.e. 10.01.2018 till its realization. It is made clear that the insured i.e OP No.1 may get reimbursement of the amount paid to the complainant, from the insurer i.e OP No.3. The complaint filed against OP No.3 is disposed of accordingly. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :15.01.2020.

          (Vinod Kumar Sharma)            (Ruby Sharma)     (NeenaSandhu)

              Member                                Member                President