| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 270 of 04-10-2018 Decided on : 31-08-2022 Kulvinder Singh aged about 63 years, S/o Sh. Gurdev Singh, R/o H.No. 22442, Street No.8, Bhagu Road, Bathinda. ........Complainant Versus Max Superspeciality Hospital, NH-64, Near Civil Hospital, Bathinda through its Managing Director/ Chairman. Dr. Dilveer Brar, M.S.Mch (Ortho), Max Superspeciality Hospital, NH-64, Near Civil Hospital, Bathinda. The New India Assurance Co. Ltd., The Mall Bathinda, through its Manager (Insurer of Dr. Dilveer Brar, M.S.Mch (Ortho), Max Superspeciality Hospital, NH-64, Near Civil Hospital, Bathinda.) .......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Kanwar Sandeep Singh, President Smt. Paramjeet Kaur, Member Present For the complainant : Sh.Naresh Garg, Advocate. For opposite parties : Sh.Vikas Singla for OPs No. 1 & 2. Sh.Sunder Gupta for OP No.3. ORDER Kanwar Sandeep Singh, President The complainant Kulvinder Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Max Superspeciality Hospital and others (here-in-after referred to as opposite parties). Briefly stated the case of the complainant is that the complainant was hale and hearty and was not suffering from any type of problem in walking and was enjoying a good health. In year 2017, complainant started suffering pain towards left side of the hip joint. He visited hospital of opposite parties and consulted with opposite party No. 2. After proper diagnosis, opposite party No. 2 prescribed medicines but problem was not cured with the medicine. The opposite party No. 2 then advised the complainant for operation of left hip joint with an assurance of 0% risk. It is alleged that earlier complainant had undergone a minor operation of L4 & L5 (Spinal cord) from PGI, Chandigarh where he remained admitted from 5.7.2017 to 14.7.2017. The complainant informed opposite party No. 2 in this regard and opposite party No. 2 assured the complainant that the same is a separate operation and has no concern with the operation of left hip joint. It is alleged that bonafidely believing the assurance of opposite party No. 2, the complainant got himself admitted in Max Hospital, Bathinda on 01.12.2017. The opposite party No. 2 operated left hip joint of the complainant and opposite parties No. l & 2 charged a sum of approx. Rs.1,93,400/- as hospital charges including medicines, doctor's fee and hospital charges. The complainant was discharged from the hospital on 08.12.2017. During stay in hospital, complainant repeatedly requested opposite party No. 2, after operation, about nerve pain in the left Foot and also requested that there is no proper movement of the left Foot, but opposite party No. 2 proclaimed that the pain is only due to surgery/operation and there is good movement of the blood in the veins. The opposite party No. 2 further assured that the complainant will be cured from the said pain within a few months with proper follow-up treatment and medicines. It is further alleged that after discharge from the hospital, the complainant continued with the follow-up treatment from opposite party No. 2. On every visit, complainant complained about non movement of the left Foot as well as pain. Despite repeated requests of the complainant, the opposite party No. 2 even did not recommend the complainant to Neurological Department in the same hospital for the proper medical check-up to enquire about the reason of said nerve pain as well as non-movement of the left Foot of the complainant. The conditions became more deteriorated as swelling also developed in the left Foot but the opposite party No.2 again proclaimed that the same will be absolved with passage of time and by taking regular treatment. It is further alleged that the complainant undergone a test from Department of Neurology, PGI, Chandigarh on 15.03.2018 and the doctor concerned gave a report with the observation "NCS of the sampled nerves is suggestive of sensorimotor axonalogy polyneuropathy". The said report was also shown by the complainant to opposite party No.2 as the aforesaid defect in the left Foot of the complainant occurred only due to the negligence on the part of opposite party No.2 during operation of the left hip joint. The complainant further alleged that the opposite party No. 2, in order to cover his own negligence, advised the complainant for physiotherapy which complainant got done continuously for three months and spent about Rs. 30,000/- but still there was no improvement in the left Foot of the complainant qua pain and movement and even swelling did not absolve. The complainant also got treatment from Bathinda Neurospine & Trauma Centre, but there is no improvement rather the left Foot of the complainant has been damaged and there is absolutely no movement in the left Foot. The complainant is unable to walk and he walks with the help of stick. If opposite party No. 2 would have referred the complainant to Neurosurgical Department at the initial stage, the Foot of the complainant would not have dropped. The complainant also alleged that his left Foot has been completely damaged due to blunder mistake and negligence on the part of opposite party No. 2 while performing operation of his left hip joint. The complainant has become a permanently handicapped/disabled person and is unable to walk and do his routine work. He is unable to drive a car and motor cycle etc., and is also unable to walk properly without the help of stick and climb stairs. The work efficiency and his income has also been considerably reduced. Thus, complainant claimed damages/compensation for the same to the tune of Rs.18,00,000/-. On this backdrop of facts, the complainant has prayed for direction to the opposite parties to pay compensation to the tune of Rs.18,00,000/- on account of mental tension, agony, botheration, harrasment, loss of physical health and financial losses with interest @12% P.A. from the date of filing of the complaint till realization and other additional or alternative relief. Upon notice, opposite parties No. 1 to 3 put an appearance through their respective counsel and contested the complaint by filing separate written reply. The opposite party No. 1 & 2 filed their joint written reply raising legal objections that the complainant has got no locus standi and cause of action to file the present complaint. That the complaint is not maintainable in its present form and is bad in the eyes of law. That the allegations made by the complainant are totally false, fabricated and baseless. That the complainant has not come to this Commission with clean hands, rather he has intentionally concealed true and material facts. That the complaint is speculative one and the same has been filed only to injure the reputation of the opposite parties and also to extract money from them in an illegal manner by mis-using the process of law. That intricate and complicated questions of facts and law are involved in the present complaint which require oral as well as documentary evidence and the witness are required to be cross examined which is not possible in summary procedure under the 'Act'. That the complainant is estopped from filing the present complaint by his own act, conduct, admission, omission and acquiescence. That no expert evidence has been placed on record which could prove that the opposite parties were negligent in any manner in providing treatment nor any report was sought by this Commission from expert doctor before issuing summons to the opposite parties. That there is no evidence worth its name to show that there is any negligence or deficiency or delay in service at the hands of the opposite parties during the course of treatment of the patient, at opposite party hospital, nor any act of deficiency or negligence or delay or omission or commission was conducted by the treating doctors, medico or para-medico staff of the opposite party hospital during relevant times, the treatment was given by the treating doctors as per standard medical protocol, adopting proper procedure as well as by qualified ,experienced and competent medical staff of opposite party hospital. It has been pleaded patient Kulvinder Singh was suffering from Advanced Degeneration of Left Hip and Lumbar CANAL STENOSIS (SEVERE). As per history of patient, described by the patient himself, the patient underwent spine surgery at PGI, Chandigarh, 8-7-17(L3-L4 LAMINECTOMY WITH DISECTOMY). Patient was admitted to opposite party No. 1 i.e. Max Hospital on 1-12-2017 and underwent Total Hip Replacement on 2-12-2018. Before surgery apart from others, an Informed Consent for Total Hip Replacement was given by the patient, after the patient was duly explained in detail about the benefits and risks associated with such surgery. In the said informed consent for total Hip replacement, it is categorically highlighted that, apart from others, nerve injury as known complication of Hip replacement surgeries. After surgery patient developed Foot drop which could be due to old spine disease or due to sciatic nerve palsy. The patient was explained in detail about the Foot drop and its prognosis and chance of recovery. On merits, the opposite parties No. 1 & 2 have pleaded that the complainant visited the hospital of the opposite parties with complaint of pain towards the left side of the hip joint and after medical check-up and preliminary diagnosis of the complainant, it was found that the complainant was suffering from Advanced Degeneration of Left Hip and Lumber Canal Stenosis(Severe). It is denied that the opposite parties advised the complainant for an operation of the left hip joint with an assurance of 0% risk rather the complainant was explained about the risks and complications involved in such operation. It has been admitted that the complainant had earlier undergone operation of L3-L4 LAMINECTOMY WITH DISECTOMY from PGI, Chandigarh which was a major surgery as told by the patient/complainant to the opposite parties before his operation for the replacement of his hip Joint. It has been pleaded that complainant was fully explained about the risks and complications involved in such operations and knowing fully well about the same, the complainant got himself admitted in the hospital on 1.12.2018. At the time of admission, the complainant was again explained the risks and complications associated with the surgery including nerve injury and the complainant having understood the benefits and the risks involved, signed the Informed Consent for the operation and only thereafter the operation of the complainant was conducted by the opposite party No.2. It has been further pleaded that the opposite party no. 2 conducted operation with full skill and adopting all precautionary measures. After discharge of the complainant from the Hospital, the complainant visited the hospital for follow-up treatment and complained about the pain in the left Foot and again the complainant was explained in detail about the Foot drop and its prognosis and chances of recovery. The opposite parties even did not touch the left Foot or the complainant or veins of the left Foot rather the operation of the left hip replacement was conducted by the opposite parties for which the opposite parties had already explained about the risks and complications associated with the surgery including nerve injury which could be due to the old spine disease or due to the sciatic nerve palsy for which opposite parties are not responsible. It has also been pleaded that there is no negligence on part of the opposite party No.2 in conducting the surgery. After controverting all other averments of the complainant, the opposite parties No. 1 & 2 prayed for dismissal of complaint. The opposite party No. 3 also appeared through counsel and contested the complaint by filing written reply raising legal objections that Dr. Dalveer Brar and doctors at Max Super Speciality Hospital are highly qualified and competent to provide treatment to its patient. Moreover, Dr. Dalveer Brar, is M.S. Mch. (Ortho) and is a highly qualified and expert in treatment of bone injuries. That there is no deficiency in service on the part of opposite parties No.1 & 2 in providing treatment to the complainant in any manner and wrong allegations have been levelled against opposite party No.2, as such the present complaint is liable to be dismissed. That the complaint is bad for non-joinder of necessary party PGI, Chandigarh from which the complainant took treatment after discharge from Max Hospital. That the complainant has no locus standi or cause of action to file the present complaint. That the complainant has not come before this Commission with clean hands. That intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in summary procedure under the 'Act' and appropriate remedy, if any, lies only in the Civil Court. That no expert evidence has been placed on record which could prove that opposite parties were negligent. It has been pleaded that Max Super Speciality Hospital, which is a sister concern of HOMETRAILBUILDTECH Pvt Ltd., has obtained policy No. 93000036170200000116 effective from 20.09.2017 to 19.09.2018 for opposite party No.1, for Rs. 1,00,00,0000/- for any one year for anyone accident subject to excess clause and same is a contract of insurance to indemnify the insured regarding any legal liability/award/order, which has been satisfied by the insured. Since no award/liability/order/ payment has been passed against opposite party No.2 and in favour of the complainant and no compensation has been awarded to the complainant so far, so the insurance company cannot be impleaded as party at this stage and name of opposite party No. 3 is liable to be deleted from the array of the opposite parties. Further legal objections are that as per exclusion clause 2 (v) of the policy, this policy does not cover the risk arising out of fines, penalties, punitive or exemplary damage. That the complainant is not consumer of the opposite parties and that the present complaint is false, frivolous and vexatious to the knowledge of the complainant. On merits, the opposite party No. 3 reiterated its version as pleaded in legal objections and detailed above. After controverting all other averments of the complainant, the opposite party No. 3 prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 04.10.2018 (Ex.C-1) and photocopy of documents (Ex.C-2 to Ex.C-23). In order to rebut the evidence of complainant, the opposite parties No. 1 & 2 tendered into evidence affidavit of Sunil Mehta dated 29-11-2018 (Ex.OP-1/6), affidavit of Dr.Dilveer Brar dated 29-11-2018 (Ex. OP-2/1) and photocopy of documents (Ex. OP-1/1 to Ex. OP-1/5). The opposite party No. 3 tendered into evidence affidvit of Ashish Pal, Senior Divisional Manager dated 07-02-2019 (Ex.OP-3/1) and photocopy of documents (Ex.OP-3/2 & Ex.OP-3/3). We have heard learned counsel for the parties and gone through the record. The learned counsel for the complainant submitted that opposite party No. 2 conduted operation of left hip joint of complainant on 02-12-2017. Before operation, there was no problem in walking, but after operation, left Foot of complainant completely damaged due to negligence of opposite party No. 2. The complainant is unable to walk and drive the vehicles. During the period complainant remained admitted in hospital (opposite party No.1), he kept on complaining about pain and non-movement of his left Foot to opposite party No. 2, but opposite party did not take care. The opposite party No. 2 even did not recommend the complainant to Neurological department in the same hospital for proper medical check-up to enquire about the reason of said nervous pain as well as non-movement of left Foot and the position became more deteriorated as swelling also developed in the left Foot but opposite party No. 2 proclaimed that the same will be absolved with passage of time by taking regular treatment. The learned counsel for the complainant further submitted that thereafter on 15-3-2018 complainant undergone test at PGI, Chandigarh, wherein doctors concerned gave report of 'NCS of the sampled nerves is suggestive of sensorimotor axonalogy Polyneuropathy”. The opposite party No. 2 despite knowing the problem, did not care and failed to provide proper treatment/post opeative care due to which complainant suffered left Foot drop, which amounts to gross negligence on the part of the opposite parties. On the other hand, submission of learned counsel for opposite parties No. 1 & 2 is that complainant was suffering from Advanced Degenration of Left Hip and Lumbar Canal Stenosis (Severe). As per history, described by complainant himself, he underwent spine surgery at PGI, Chandigarh on 8-7-2017 (L3-L4 Laminectomy with Disectomy). Complainant was admitted to opposite party No. 1 on 1-12-2017 and underwent Total Hip Replacement on 2-12-2017 and before surgery an Informed Consent for Total Hip Replacement was given by the patient after he was duly explained in detail about the bnefits and risk associated with such surgery. It was categorically highlighted that apart from others, nerve injury as known complication of Hip Replacment Surgeries. The complainant has not placed on file any expert evidence to prove any negligence on the part of opposite party No. 2. Foot drop could be due to old spine disease or due to sciatic nerve palsy for which the opposite parties are not responsible. We have considered the rival contentions and have gone through the record carefully. These are admitted facts of the parties that complainant underwent spine surgery at PGI, Chandigarh on 8-7-2017 (L3-L4 Laminectomy with Disectomy). He was admitted in Max Hospital (OP No. 1) on 1-12-2017 and his surgery of Total Hip Replacement was performed by opposite party No. 2 on 2-12-2017. The grievance of the complainant is that ops are negligent and deficient in service in diagnosis, treatment and post operative care of complainant. A perusal of file reveals that opposite party No. 2 in para No. 10 of written reply admitted that apart from others, nerve injury is known complication of Hip replacement Surgeries. The opposite party No. 2 has also admitted that after surgery patient developed Foot drop but further mentioned that this problem could be due to old spine disease or due to sciatic nerve palsy. None of the documents/medical record produced by the opposite parties on file it revealed that prior to surgery of Total Hip Replcement, complainant was having any problem of Foot drop. Ex. C-3 is the medical record of PGI, Chandigarh dated 18.03.2018. The doctors of PGI has diagnosed on 18-3-2018 and finds mentioned “ Underwent Hip Replacement in December, 2017. Post Operative developed Left Foot Drop.” NCV (Nerve Conductive Velocity (Test) Ex. C-19 was advised which revealed : “NCS of the sampled nerves is suggestive of sensorimotor axonalogy Polyneuropathy” The opposite parties No. 1 & 2 in their written reply have admitted that after discharge from the hospital, the complainant visited the hospital for follow-up treatment and complained about the pain in the left Foot and he was explained in detail about the Foot drop and its prognosis and chances of recovery. The opposite parties have mentioned in reply that opposite parties did not touch the left Foot the complainant or veins of the left Foot rather the operation of the left hip replacement was conducted by the opposite parties for which the opposite parties had already explained about the risk and complications associated with the surgery including nerve injury which could be due to old spine disease or due to sciatic nerve palsy. Thus, as detailed above, the opposite parties admitted that complainant approached opposite parties for follow-up treatment and complained about pain in the left Foot. The version of the opposite parties that opposite party No. 2 did not touch the left Foot or veins of left Foot of complainant does not absolve them from responsibility. Moreover, the version of the opposite parties is itself not clear. On the one hand it has been said that opposite party No. 2 did not touch left Foot or its veins and on the other hand, the version of the opposite parties is that they explained the risk and complications associated with the Hip Replacement surgery including nerve injury. Not only this, the opposite parties further mould their version and said that this problem could be due to old spine disease or due to sciatic nerve palsy. The plea taken by opposite parties is not corroborated by the follow up record of opposite parties i.e. Ex.C-22. Perusal of document discharge and follow-up card of PGI, Chandigarh (Ex.C-3) reveals that on 15.03.2018 complainant went to PGI, Chandigarh with a problem of post operation developement of left Foot drop. Ex.C-21 is the prescription slip of Bathinda Neurospine and Trauma Centre, Bathinda pertaining to complainant showing Post TKR (Total Knee Replacement) left Foot drop but the follow up record of hospital of opposite parties do not find mention of problem of left Foot drop faced by complainant, proving opposite party No.2 did not take note of post operation problem being faced by complainant and further did not suggest further treatment of complainant. Therefore, in nutshell, analysing the facts and circumstances and the evidence placed on file by the parties we are of the view that non diagnosis and non post operative care on the part of opposite party No.2 is deficiency in service on the part of opposite party No.2, and proves medical negligence on the part of the opposite party No.2 in not providing proper care and timely advise, during post operative treatment due to which Foot drop developed and complainant suffered a lot at the hands of the opposite parties. Hon'ble National Commission, in the case titled P D Hinduja National Hospital & Medical Research Centre cited as II (2018) 342 (NC) has held : “Knee – Surgery – Post-operative Infection – Pain and sufferiangs – Subsequent revision – Surgeries in USA- Medical expenditure – Vicarious liability – Deficiency in service – State Commission allowed complaint – Hence appeal – Care taken by the treating doctor, of a high risk patient assumes much more significance – Onus shifted to hospital and treating doctor together with his team to explain as to how infection had set in – Mere submission the Rheumatoid Arthritis patients are prone to infection and therefore, patient contracted same, does not suffice” Further held that : “Duty of care to be expected from a treating doctor when his patient was suffering from rampant infections, was not performed by treating doctor – Negligence proved.” Hon'ble National Commission in the case New India Assurance Co. Ltd., Vs. Sri Sai Hospital, Mansarovar Colony & Ors., cited as II (2016) CPJ 566 (NC) has held : Medical Negligence – Wrong surgery – Fruad and conspiracy alleged – Deficiency in service – Surgery was performed at wrong site/level on spinal lesion – Instead of S1-S2 level the doctors erroneously performed surgery at one level above i.e. L5-S1 level -It was not an error of judgement but it was a medical negligence – Hospital is vicarously liable for mistake of its doctors.” Keeping in view the facts, circumstances and evidence placed on file by the parties, this Commission is of the view that there is negligence/deficiency in service on the part of opposite parties No.1 & 2 in treatment and post operative care due to which complainant suffered problem of Foot drop. In the result, this complaint is partly allowed with Rs.50,000/- as cost and compensation against the opposite parties No.1 & 2. Since, opposite parties are having insurance policy from opposite party No.3 so they shall be at liberty to get indemnified as per policy terms and conditions. The compliance of this order be made by opposite parties No.1 & 2 jointly and severally within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced : 31-08-2022 (Kanwar Sandeep Singh) President
(Paramjeet Kaur) Member
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