Punjab

Rupnagar

CC/15/79

Varinder Chopra - Complainant(s)

Versus

Max City Hospital & Others - Opp.Party(s)

Sh. Deepak Kumar Sareen, Adv.

03 Nov 2017

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                 Consumer Complaint No. : 79 of 13.08.2015

                                 Date of decision                    :      03.11.2017

 

Varinder Chopra, aged about 40 years, son of Sh. Sohan Lal Chopra, resident of # 2457, Near Jain Janj Ghar/Phool Chakkar Mohalla, Rupnagar, Tehsil & District Rupnagar  

                                                                 ......Complainant

                                             Versus

1. Max City Hospital, Bela Road, Rupnagar, through its Chairperson Dr. Loveleen Kaur  

2. Dr. Surjit Singh, Head of Max City Hospital, Bela Road, Rupnagar

3. Dr. R. Gupta, Max City Hospital, Bela Road, Rupnagar

4. Oriental Insurance Company Limited, Registered Office, SCO 109-110-111, Surindra Building, Sector 17-D, Chandigarh                                                                                                         ....Opposite Parties

                                   Complaint under Section 12 of the                                                      Consumer Protection Act, 1986

QUORUM

 

                        MRS. NEENA SANDHU, PRESIDENT

                        SMT. SHAVINDER KAUR, MEMBER

ARGUED BY

None for complainant

Sh.D.S.Deol, Adv. counsel for O.Ps. No.1 & 2

          O.P. No.3 ex-parte

          Sh. Rajesh Sharma, Adv. counsel for O.P. No.4

 

ORDER

                                  MRS. NEENA SANDHU, PRESIDENT

Sh. Varinder Chopra through his counsel 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 ‘the O.Ps.’) praying for the following reliefs:-

i)       To pay Rs.1,50,000/- for re operation and for insertion of plates in PGI, Chandigarh

ii)      To pay Rs.45,000/- for fix attar and Rs.60,000/- visit for 15 times visit to PGI and Rs.50,979/- for charges of operation conducted by the O.Ps.

iii)     To pay Rs.10,00,000/- for compensation on account of mental agony and physical harassment

iv)     To pay Rs.10,000/- as litigation cost along with interest @ 18% per annum on the whole amount till its realization

 

2.         Brief facts of the case are that the complainant met with an accident and received multiple serious injuries, his right arm and right leg got fractured. He was admitted in the Max City Hospital i.e. O.P. No.1 on 11.8.2014. The O.Ps. conducted operation of his right arm on 12.8.2014 and of his right leg on 14.8.2014 and inserted plates in his right arm and also in right leg, for which the O.Ps. charged Rs.50,979/- and discharged him on 22.8.2014. He was going to the O.Ps. for dressing regularly. When, he complained the O.Ps. that his operated leg seems to be shorten then O.Ps. told him that everything will be alright and nothing is wrong with the operation. On 30.08.2014, X ray of the right leg was taken and it was found that screws of the plate inserted in his leg were in loose/open condition. Due to which, his leg got infected. Since, the treatment given by the O.Ps. was not proper, therefore, he went to PGI for treatment, there his right leg operated upon again to take out the plates inserted by the O.Ps. and attar was fixed to straighten the leg. After filling of the holes of the bone of the right leg, doctors of the PGI again operated his right leg. The plates inserted by the O.Ps were handed over to him by the PGI Chandigarh, which were of low quality, duplicate one and screws used to affix the plates were small in sizes and that is why got loosened. It is further stated that bone grafting is required in the cases where bone of the concerned part is crushed, but in the present case bone of his right leg was not crushed, even then, the O.Ps. did bone grafting, due to which his right leg got shorten. He had spent Rs.1,50,000/- for reoperation and for insertion of plates and Rs.45,000/- for fixation of attar and also Rs.60,000/- as misc. expenses while taking treatment from PGI. He was doing a business of milk vendor before accident and used to earn Rs.1200/- per day. He is the only bread earner of his family, having a wife and two minor children but due to wrong treatment given by the O.Ps., they are struggling their survival since 11.8.2014. Due to the negligence of the O.Ps. he has suffered a lot of mental agony, physical harassment and financial loss. Hence, this complaint.

3.         On being put to the notice, the O.Ps. No.1 & 2 has filed written version taking preliminary objections; that complaint is not maintainable in the present form; that the complainant has no locus standi to file the present complaint; that there is no deficiency in service on the part of the O.Ps.; that a complicated question is involved in the present complaint and the allegations leveled by the complainant are wrong, false and concocted one; that this Forum has no jurisdiction to entertain and try the present complaint. On merits, it is stated that complainant was admitted in O.P hospital on 11.8.2014 and was discharged on 22.8.2014. The operation of the right arm of the complainant was conducted on 12.8.2014 and that of his right leg was conducted on 13.8.2014 and plates were inserted in the right arm and the right leg of the complainant, for which, O.Ps. Rs.50,979/- were charged from the complainant. The O.Ps. have provided the best medical facility and treated the complainant as per his satisfaction. He never complained that his leg got shorten. The implants inserted by the O.Ps. were of good quality and the same were being used in all other patients. Around 90/100 operations of similar nature were performed by the O.Ps. and none has made any complaint. About 135 cases of fracture of long bones were treated by locking the plates as was done in the case of complainant. All the patients followed the post operative instructions properly and they are normal and are satisfied with the treatment. In the case of complainant, the implants failure is due to his negligence, who started bearing weight on the said leg early and due to his heavy weight especially when the fracture was having multiple pieces. In the medical literature i.e. Alfred .O. Ogbemudia, FWACS, Phillip F.A. Umebese, FWACS, FICS under the head of implant failure in osteosynthesis of fracture of long bone, it is prescribed that the “aim of fracture treatment is to achieve union and timely functional recovery. Internal fixation is often required to achieve early ambulation which aids timely return to normal function. However an internal fixation device may fail to hold a reduced fracture until union. Implant failures arise manly from loosening or breakage of the internal fixation device. Because bones are more flexible than metal plates, screwing a metallic plate to bone stiffens and procures “stress riser” at each end of the plant”. This literature further shows that over weight and early weight bearing were peculiar features in those patients with implants failure. Implants loosing is known complication in type of fracture the patient sustained. In As per literature, it is mentioned inspite of the limitation of the study as a retrospective one, it has highlighted the like hood of excessive body weight and early weight breaking as risk factor for implant failure. The present complaint has been filed by the complainant without any reasons because the reason of implant loosing is that as the patient started bearing weight on his injured leg, immediately, after discharge from the hospital, which is contrary to the advice of the doctors. It is further stated that the post operative X ray taken on 14.8.2014, clearly shows that the operation done by the O.Ps. was correct and successful, the bone pieces and fracture were well reduced and plate was in good position holding the fracture. The plate used for implant was of good quality. It is pertinent to mention here that in the present case bone grafting was done because the fracture was open and had multiple pieces. As per literature i.e. Acta Orthopeaedica Belgica Vol. 70-4-2004 under the head of Early Prophylactic autogenious bone grafting in type III open tibial fractures, it is mentioned that “in fracture resulting from high energy trauma early prophylactic bone grafting is recommended grafting performed within the first 12 weeks, in order to reduced the time to union in tibial fracture (2). However this time interval is often considered too long. There is still no consensus on the timing of early prophylactic bone grafting. It is further mentioned that the advantage of early prophylactic autogenous bone grafting is agreed to by numerous authors (1,6,16) Benrens et at (1) have reported that union is achieved in less than 12 weeks with early prophylactic grafting performed within 4 weeks of injury. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof.

4.       On being put to notice, none appeared on behalf O.P. No.3, accordingly, it was proceeded against ex-parte vide order dated 23.10.2015.  

5.       The O.P. No.4 has filed written version, taking preliminary objections that; that present complaint is not maintainable; that this Forum has no jurisdiction to decide the present complaint; that so many complicated facts are involved in the present case, which cannot be decided in summary nature without recording the evidence and their cross examination, only civil case as jurisdiction to decide the complicated facts and question arising out of the complainant; that the complainant has suppressed the material facts from this Hon’ble Forum. On merits, it is stated that answering O.P. has to indemnify the doctor only if doctor of Max Hospital is negligent but no intimation was given by the doctor regarding any negligence on his part. Moreover, complainant has to give the strict proof of medical negligence. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof.

6.       On being called upon to do so, the complainant has tendered his affidavit of complainant Ex.CW1/A along with documents Ex.C1 to Ex.C36. The complainant evidence has closed by the order by this Forum vide order dated 18.4.2017. The learned counsel for the O.Ps No.1 & 2 has tendered into evidence affidavit of Dr. Surjit Singh, Ex.OP1 along with documents Ex.OP2 to Ex.Op6 and closed the evidence. The learned counsel for the O.P. No.4 has tendered certified copy of policy Ex.OP4/1 and closed the evidence.   

7.       We have heard the learned counsel for the O.Ps. No.1,2 & 4 and have gone through the record of the file, carefully.

8.       Admittedly, the O.Ps. conducted the operation of the complainant and inserted the plates in his right arm and right leg to join the fractured bones. The complainant has alleged that due to negligence of the O.Ps. the implant in his right leg was not done properly, as a result of which his right leg got shorten. The plates inserted by the O.Ps. were of low quality and duplicate and the size of the screws to affix the plates were small in size, that is why plates got loosened and his leg got infected. The learned counsel for the O.Ps. No.1 & 2 has submitted that there was no negligence on their part because the said operation was conducted with due care and diligence by the well qualified doctors, as per medical norms. The said fact got fortified from the experts report dated 21.8.2017 furnished by the penal of experts in the field of Orthopedics, so constituted by Director, PGIMER, Chandigarh, as sought for by this learned Forum vide order dated 23.5.2017.  The learned counsel for the O.P. No.4 has submitted that from the experts report it is clear that the there is no negligence on the part of the O.Ps, therefore, the complaint filed against the O.P. No.4 may kindly be dismissed.

          On perusal of the report, it is evident that the said medical board has opined that "the immediate post-op X ray shows good alignment of the fracture and well stabilization. However, early implant failure and infection are known complications in the fracture management, hence in view of above, there is no negligence in the management of care. In the case of Baljit Singh Vs Kumar Hospital and Anr. 2017 (2) CLT 72, (NC), the Hon’ble National Commission, has held that if the screws or the plates have loosened for some reason after surgery,         the doctor who conducted the surgery cannot be blamed.  

 

9.         In view of the report given by the experts, who after hearing the patient i.e. complainant, treating surgeon and going through the record have opined that there was no negligence on the part of the O.Ps. No.1 to 3 and the law laid down by the Hon’ble National Commission, in the case referred above, we hold that  there is no medical negligence on the part of O.Ps. No.1 to 3 and the complaint against them is liable to be dismissed. Since no medical negligence has been proved against the O.Ps. No.1 to 3 (insured), therefore, the complaint filed against O.P. No.4 (insurer) is also liable to be dismissed.

10.     In view of the aforesaid discussion, we hereby dismiss the complaint being devoid of merits. Parties are left to bear their own cost.

11.     The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.

 

                   ANNOUNCED                                                                       (NEENA SANDHU)

                   Dated .03.11.2017                                                PRESIDENT

 

 

                                                                    (SHAVINDER KAUR)

                                                                                                                                                MEMBER