BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.385 of 2014

                                 Date of institution:          28.05.2014

                                                   Date of Decision:             03.06.2015

Bhupesh Gupta son of Mahendra Kumar Gupta resident of 243, Sector 21, Block A Mandi Gobindgarh, Gandhi Nagar, District Fatehgarh Sahib, Punjab.

    ……..Complainant

                                        Versus

1.     Max Super Specialty Hospital, Near Civil Hospital, Phase-VI, Mohali, Punjab 160055 through its Managing Director/Director/Authorized signatory.

2.     Dr. Varinder Sarwal, MS, MCh, FIACTS, Principal Consultant and Chief of Department of Cardiovascular Thoracic Surgery, Max Super Specialty Hospital, Near Civil Hospital, Phase-VI, Mohali, Punjab 160055.

3.     Dr. Arat, Max Super Specialty Hospital, Near Civil Hospital, Phase-VI, Mohali, Punjab 160055

………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Mrs. R.K. Aulakh, Member.

Present:    Shri Munish Goel, counsel for the complainant.

Shri Vishal Gupta, counsel for the OPs

alongwith Dr. Virender Sarwal.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Parties (for short ‘the OPs’):

(a)    to refund him Rs.1,73,359.60 alongwith interest @ 12% per annum from the  respective dates  of expenditure till realization.

(b)    to pay him Rs.29,400/- spent towards travelling, food, boarding and lodging at various places for  medical  check up.

(c)    to pay him Rs.15.00 lacs for mental agony and harassment.

(d)    to pay him Rs.33,000/- as costs of litigation.

                The complainant’s case is that he visited OP No.1 on 19.11.2013 for check up as he was suffering from breathing problem.  The complainant was checked up by OP No.2 who found that the complainant is suffering from Ventricular Septal Defect with L → R Shunt with PS.  The complainant was informed that there is a hole I his heart which needs to be treated immediately otherwise there would be risk to his life.  Accordingly, the complainant was admitted with OP No.1 on 20.11.2013 and on demand an amount of Rs.15,000/- was deposited with OP No.1 vide receipt Ex.C-2. The OPs instead of Angiography, conducted Transthoracic Echo Doppler Test on the complainant on 20.11.2013 and on the basis of report Ex.C-3 informed that there is a 10 mm hole in the heart of the complainant which needs cover patch. The OPs assured that after fixing the patch there will be no problem to the complainant.  The complainant and his parents requested the OPs to conduct angiography but OP No.2 told that there is no need as he has seen the problem in ECHO Test and conducting angiography would be wastage of time and further informed that the complainant would be operated on 22.11.2013. On further demand of OP No.1 an amount of Rs.1,50,000/- was deposited vide receipt dated 21.11.2013 Ex.C-4. After conducting the operation on 22.11.2013 OP Nos.2 and 3 informed the complainant and his parents that the operation is successful the hole in the heart has been completely rectified with patch. The other problem of DCRV has also been rectified through operation and muscle has been removed above blood vessel.  However, the complainant did not feeling comfortable during his hospital stay,  as he was feeling problem in breathing. He was feeling some whistle sound while breathing. The complainant was having problem of palpation and was feeling pain in abdomen and chest. The complainant informed these issues to OP No.2 but he was counseled and told that these problems are normal after operation and would be naturally taken care in due passage of time. The complainant was discharged on 27.11.2013 vide discharge summary Ex.C-5. Out of the total deposited amount of Rs.1,65,000/- with the OPs, the complainant was refunded Rs.2,245/- at the time of his discharge from the OPs.  The complainant followed the instructions as given by the OPs at the time of discharge. The complainant to the OPs on 04.12.2013 for check up and the OPs after checking up advised medicines and x-ray to the complainant. After x-ray report the OPs informed the complainant he is fine and internal stitches would dissolve and also removed two outer stitches and advised the complainant to come for review after one month. The OPs charged Rs.950/- vide receipt Ex.C-20.  However, after surgery and follow up, the complainant still felt pain in chest and problems in breathing etc. and came to the Ops for check up on 02.01.2014. The OPs after check up advised some medicines and after the asked him to revisit for follow up after three months. Despite prescribed medicines, the complainant did not get any relief and visited the OPs on 11.03.2014. The Ops conducted ECHO test for which Rs.1500/- were charged vide receipt Ex.C-26. The complainant came to know from the ECHO test conducted on 11.03.2014 that the hole in the heart was no filled properly and the problem qua DCRV has also not been rectified. There is still 3 mm hole in the heart and the complainant is still suffering from problem of DCRV. On account of negligent operation by OP No.2 and 3 the patch has not been rightly asserted due to which the hole in the heart was not covered properly. In the ECHO conducted on 11.03.2014 VSD 3mm left to right shunt was seen. The complainant immediately met OP No.2 who admitted that the operation performed on him was not successful in view of the ECHO report and further informed the complainant that he is not competent to rectify the defect any further and suggested to get checked up from some other reputed hospital.  The complainant went to PGI on 24.03.2014 where his 2D ECHO was conducted on 26.03.2014 from whose report it was found that the complainant was suffering from DCRV with small residual. He was informed that due to wrong placement of patch, the hole has become a nozil through which blood is flowing at very fast speed and the complainant needs surgery. The complainant was advised to come for angiography on 11.04.2014. The complainant was admitted in PGI on 11.04.2014 and angiography was conducted on 12.04.2014. The complainant was given the date in June 2014 for operation. The complainant went to Medanta Hospital, Gurgaon for advice and treatment and got himself checked on 09.05.2014. The complainant also went to AIIMS on 16.05.2014 for consultation where his ECHO was conducted on 20.05.2014. As per the report of ECHO the hole is open upto 8MM.  Thus, as per the reports of PGI and AIIMS the hole has not been covered with patch and due to wrong and negligent treatment given by the OPs, the problem qua DCRV has become a major concern for life of the complainant as blood going through vessel has become irregular and heart has not been able to function to its maximum strength. Due to the wrong treatment given by the OPs, the complainant is unable to go abroad for further studies.  The complainant is still to go further treatment for rectification of defects arising out of the treatment given by the OPs.  Thus, alleging medical negligence on the part of the OPs, the complainant has filed the present complaint.

2.             The OPs in their joint written statement have pleaded in the preliminary objections that the complainant is a known case of VSD and came to the OPs on 19.11.2013. Prior to coming to the Ops he was getting treatment from other hospitals also.  The complainant was provided treatment on totally scientifically basis after evaluating him in detail with all investigations available. The surgery was planned and executed as per the standard international protocols with documented outcome in the operation theater with transesophageal echocardiography. 100% successful repair was achieved in helping the complainant to recover very fast in next five days and was discharged on 27.11.2013. The complainant did well in his early postoperative period and in all his follow ups he never complained of anything. On 11.03.2014 though he did not made any complaint but was advised ECHO after three months which is a routine investigation to check the status of repair and status of other condition prevalent at the time of surgery. He was found to be carrying a small residual VSD (3mm). He was explained that it happens in quite a few patients even in late post op period as a reaction to the sutures. The complainant got misinformed on this later on and chose to file this frivolous complaint.  When the complainant approached the Ops, on checking he was advised catheterization study and not angiography which was to see the size of VSD, direction of shunt, measure PA pressure or lung pressure, measure gradient across the RVOT and status of pulmonary artery.  This all helps in deciding about operability at the age of 25 years as many would become in-operable by this time. 2D Echo was done on 20.11.2013 and the report was discussed with cardiologist.  The complainant was operated on 22.11.2013 and the surgery was successful. There was no residual stunt across the patch and the repair was absolutely successful. The complainant progressed very well in the post operative period and was extubated on 1^st post op day and shifted to step down ICU on 3^rd PO day and was discharged on 5^th PO day. The complainant was thereafter called for routine check up after 7 days. The complainant came on 04.12.2013 and his stitches were removed, x-ray and ECG was done which all were having no fresh abnormality.  His wounds were fine and he was put on medicines. The complainant never reported for any specific complaint till 02.01.2014.  The complaints of pain, weakness are general. On 11.03.2014 also the complainant did not complain anything and he was asked to undergo ECHO and it showed patch in place with a 3mm residual VSD with sub pulmonary gradient of 37 which had fallen from 107 pre op.  The complainant was informed about the Echo report and its significance in detail and that it is expected to close over a period of time. At no point he was told that the OPs were not competent to rectify the defect any further.  Thus, denying any medical negligence on their part, the Ops have sought dismissal of the complaint.

3.             Evidence of the complainant consists of his affidavit Ex.CW-1/1; copies of documents Ex.C-1 to C-64.

4.             Evidence of the OPs consists of affidavit of Dr. Varinder Sarwal, Ex.OP-1/1 and copies of documents Ex.OP-1 to OP-31.

5.             We have heard the learned counsel for the parties and have gone through the written arguments filed by them.

6.             Admittedly the complainant has undertaken treatment from the OPs once it was detected that he was having hole in his heart.  Admittedly the complainant was of 25 years of age and before coming to the OPs was getting treatment from other hospitals. The complainant approached OP No.1 on 19.11.2013 and complained of some breathing problem and approached OP No.1 where he was checked up by OP No.2. OP No.2 being a qualified cardiac surgeon got the Transthoracic Echo Doppler Test and after evaluating the investigation, planned a surgery for the complainant.  Upon the findings of the Transthoracic Echo Doppler Test, the final interpretation was as under:

“10mm perimembranous VSD with left to right shunt. PSG= 69 mm Hg Subvalvular pulmonary stenosis. PSG= 107 mm Hg (DCRV).

Trace PR/TR/AR

Normal biventricular systolic function. LVEF= 65%.”

7.             As per the complainant he has paid a total sum of Rs.1,73,359.60 as indoor patient with OPs vide Ex.C-7.  During his stay in the hospital he was operated upon on 22.11.2013 by OP No.2 and was discharged from the hospital on 27.11.2013 vide discharge summary Ex.C-5. As per discharge summary the surgery was uneventful. He was extubated on 1^st POD. Chest tubes removed on 1^st POD. He was shifted to step down and mobilized. Wounds healthy, pacing wires were removed and he was discharged on 5^th POD with complete medical advice and counseling. As per operative details Ex.C-6 the doctor has done the open heart beat surgery, Dacron patch closure of VSD done using interrupted  pledgetted everted horizontal  mattress sutures on septal side and continuous suture on other side. Rewarmed. RA closed in layers. Hot shot cardioplegia was given. Heart de-aired. Cross clamp released. Heart started contracting in normal sinus rhythm. Patient weaned off from cardiopulmonary bypass with moderate inotropic support. Decannulation performed uneventfully. Heparin reversed with protamine. Hemostatsis secured. Chest closed in layers with two mediastinal and pleural drainage tubes. Patient shifted to ICU in a hemodynamically stable state. Immediate post operative status: Hemodynamically stable. Inotropes: Minimal dose. Hemostasis: Fair. Special Remarks Single, large, sub aortic, 10mm size VSD with Moderate PAH.

8.             As per the advice, the complainant revisited the hospital for follow up and on 11.03.2014 another Echo was conducted by the OPs as a routine investigation to check up the status of repair and other parameters prevalent at the time of surgery. In the second Echo conducted on 11.03.2014 Ex.C-25 residue of VSD 3mm was found.  Further as per the said report the final interpretation was as follows:

“Post op double chambered Right Ventricle. Perimembranous VSD 3mm with left to right shunt. PSG 72 mm hg. Subpulmonary stenosis. PSG 37mm hg.”

9.             The complainant has been counseled about the same, as such a residue is normal if the operation is conducted at the age of 25 years and the residue will automatically heal with the passage of time and so far as DCRV is concerned that too will be taken care of by natural process with due course of time. However, the complainant was not satisfied with the same and was having apprehension that he has not been properly treated and cured of the problem. Therefore, he has taken further opinions from various hospitals, i.e. PGI vide Ex.C-28, Medanta Hospital vide Ex.C-46, AIIMS vide Ex.C-50 and finally Fortis Hospital Mohali vide Ex.C-52. In all the subsequent consultations the findings of the consulting doctors regarding DCRV is question marked as is evident from the perusal of these documents. So far as residue VSD of 3mm as reported in ECHO report dated 11.03.2014 is concerned, it has increased to 6mm residue VSD as per ECHO report of PGI dated 26.03.2014 Ex.C-31.  As per PGI investigation the treating doctor opined that the complainant needs surgery and advised the complainant to arrange four units of blood and finance. However, before taking the final call of surgery, the treating doctor advised review vide Ex.C-43. The complainant was ready with blood and finance but the surgery was not conducted by PGI as no bed was available and, therefore, they had postponed the surgery to June 2014 as is evident from Ex.C-45 dated 23.04.2014. The findings of the PGI authorities are quite clear that the status of the patient was not life threatening which required immediate medical/surgical intervention meaning thereby that the treatment given by OPs to the complainant though having 3mm residue was not life threatening and the operation was successful by the OPs.

10.           The conduct of the complainant clearly shows anxiety and apprehension, as instead of waiting for another two months,  as decided by PGI authorities till June, 2014, he has approached Medanta and AIIMS Hospitals thereafter and shown the reports to them. Even the reports given by them show the status of DCRV as question marked and residue substance VSD small i.e. the Medanta report dated 09.05.2014 Ex.C-46.  Thus the Medanta hospital report is inconclusive. It has only given the consultation on the basis of previous reports. There is no ECHO report of Medanta hospital on the record.  So much so that the complainant has visited AIIMS on 20.05.2014 for taking further consultation on the issue and as per AIIMS ECHO Cardiography report Ex.C-50, the residue VSD now is 8mm whereas the DCRV is again question marked and the AIIMS hospital has not conducted any surgery as no bed was available till August 13, 2014. Thus, it is ample clear that even in the esteem and wisdom of AIIMS authorities it was not a life threatening condition of the complainant which required immediate medical or surgical intervention and the complainant was advised to wait till August, 2014 and finally the complainant approached Fortis Hospital and on the recommendation of the Fortis Hospital, case study opinion was taken from Dr. Radha Krishan Director Pediatric Cardiology Escorts Heart Institute, New Delhi.  The opinion of Dr. Radha Krishan came on 11.08.2014 Ex.C-55 and on the basis of expert opinion the Fortis Hospital has conducted surgery of VSD on 28.08.2014. As per discharge summary of Fortis Hospital Ex.C-63 the complainant was admitted on 27.08.2014 and operation was conducted on 28.08.2014. He was discharged on 03.09.2014.  As per the operative findings of Fortis Hospital Ex.C-63 small size residual VSD present at 1 O’ clock and 5 O’ clock position was removed at previous VSD patch. Meaning thereby that only small size residual VSD was removed and the size was not mentioned. Further as per discharge summary only VSD closure (ICR) has been mentioned whereas the operation notes reveal both VSD closed directly with pledgeted sutures. Influndibular band of muscle resected.  The following table shows the Echo tests conducted by various hospital and their respective reports of the size of the hole in heart and PMG:

                The perusal of above table shows that the PMG in decreasing order from 21.11.2013 to 11.08.2014 meaning thereby that once the patch on the heart has been fixed by the OP on 21.11.2013 the PMG i.e. the secondary problem has automatically taken care of and is reducing with the passage of time.  Similarly the various reports are reflecting different sizes of residue. Even the Fortis Hospital which has finally conducted the second surgery has not disclosed the size of residue. Further the operative notes of Fortis Hospital Ex.C-63 are reflecting the actual procedure done on DCRV and the discharge summary is silent about the same.  Further the report of Fortis Ex.C-63 only shows that VSD closed directly with pledgeted sutures of two small sizes residue by the hospital. The said findings of the Fortis Hospital Ex.C-63 are in no way contrary to the report of ECHO dated 11.03.2014 showing post operative 3mm VSD residue and the said report has been duly explained to the complainant by the conducting doctor i.e. OP No.2.

11.           As per Lisa Rakin, author of Mindover Medicine, an estimated 3 out of 4 visits to doctors are stress related and further our bodies know how to fix broken protein, kill cancer cells, retard aging and fight infection. They even know how to heal ulcers, make skill lesions disappear and knit together broken bones but here is the kicker; those natural self repair mechanism do not work if you are stressed. Thus, it is ample clear that instead of following the advice of the OP No.2, the complainant out of anxiety and apprehension of getting anthemia, the moment he learnt some residue of 3mm left in the echo report dated 11.03.2014 had gone to witch hunting of various hospital and unnecessary allowed himself to be under stress and also exposed his heart to another surgery. Further the apprehension of contracting anthemia is ill founded as the treatment given by the OP No.2 has no relation to the symptoms of anthemia. The treatment given by OP No.2 relates to regulating the blood supply to the heart whereas anthemia is caused by the electrical functioning of the heart. 

12.           OP No.2 in his affidavit has clearly explained the procedure conducted by him being a qualified cardiac surgeon to undertake such a surgery on the complainant and the natural defect in the heart of the complainant which is by birth. While arguing the matter himself the OP No.2 has explained that the natural defect which the complainant was suffering by birth, as per medical literature, can best be treated within the first decade of life whereas the complainant has come with his problem at the age of 25 years and, therefore, in such like situations the possibilities of post operative residue are not ruled out as is documented in the medical studies Ex.OP-7. The complainant having been successfully treated and discharged in a healthy condition after 5 days of operation per se shows that the surgery was successful with the best possible precision as otherwise at the age of 25 years fool proof healing of hole is impossible as the doctors cannot mimic the nature. Further the complainant has been properly counseled about the natural healing of the residue as well as DCRV which was secondary problem arising out of primary problem of hole in the heart which the complainant was suffering. Once the primary problem has been taken care of with the minimum residue of 3mm, the 3mm residue as well as DCRV will automatically with the passage of time the body will take care of. There is ample evidence to show that at the time of surgery in the hospital the DCRV gradient was 107 mm whereas subsequently post operative surgery it has reduced to 53mm as is evident from the reports of the subsequent diagnosis by various hospitals. The conducting doctor further argued that difference of opinion in the line of treatment by different doctors on the basis of diagnostic studies and reports is in no manner can be treated to be a medical negligence in the eyes of law. In support of his arguments, he has relied upon the judgment of Hon’ble Supreme Court of India in Kusum Sharma & Others vs. Batra Hospital & Medical Research Centre, in Civil Appeal No.1385 of 2001 decided on 10.02.2010.

13.           On the basis of above, we do not find any medical negligence on the part of the treating doctor i.e. OP No.2 and the acts of commission and omission undertaken by the treating doctor in discharge of his medical professional duties, as per his qualifications and skill and experience are in no manner can be described of medical negligence on his part and hence no deficiency in service on his part.

14.           Since OP No.1 has charged Rs.1,73,359.60 for a full package of heart treatment from the complainant and admittedly the treating doctor has done surgery of VSD i.e. planting patch on the hole of the heart and admittedly has not treated DCRV issue, therefore, the full package for hole treatment and charging of the same amount for a treatment which has not been given to the complainant, is an act of unfair trade practice on the part of the hospital i.e. OP No.1. So far as charging for the diagnostic for the disease i.e. DCRV and VSD is concerned, the hospital was well within its right to charge for the same. However, for charging the treatment which has not been given to the complainant for DCRV is definitely an act of unfair trade practice on the part of OP No.1. Thus on this account the complaint deserves to be allowed and the complainant deserves to be compensated. 

15.           The complaint is hereby allowed with the following directions to OP No.1:

(a)    to refund 50% of the total treatment charges of Rs.1,73,359.60 paid during his period of  treatment with OP No.1.

(b)    The said 50% amount  at (a) above shall also carry interest @ 9% per annum from the date of discharge of the complainant  from OP No.1 till actual payment.

(c)    to pay a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) to the complainant for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

June 03, 2015.    

                                                                       (Mrs. Madhu P. Singh)

                                                                        President

(Mrs. R.K. Aulakh)

Member