Haryana

StateCommission

CC/74/2014

Dr. Madhu Gupta - Complainant(s)

Versus

Medanta - Opp.Party(s)

27 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No     :     74 of 2014

Date of Institution:   01.08.2014

Date of Decision :    27.01.2017

 

Dr. Madhu Gupta w/o Dr. Umesh Gupta, Resident of Getwell Hospital, Opposite Power House, Mahendergarh Road, Narnaul.

 

                                      Complainant

Versus

1.      Medanta, the Medicity, Global Health Private Limited, Sector 38, Gurgaon through Dr. Naresh Trehan Chairman and Managing Director.

2.      Medanta, Mediclinic, Registered Office E-18, Defence Colony, New Delhi-24, through its Authorised Officer/Managing Director.

3.      Dr. Ashok Rajgopal, Chairman Knee Unit, Medanta Bone and Joint Institute, Medanta, the Medicity, Global Health Private Limited, Sector-38, Gurgaon.

4.      Dr. Vivek Dahiya, Associate Consultant Medanta, the Medicity, Global Health Private Limited, Sector-38, Gurgaon.

5.      Dr. Saleem Ahmed Senior Resident, Radiology Medanta, the Medicity, Global Health Private Limited, Sector-38, Gurgaon.

6.      Inderprasath Apollo Hospital, Delhi Sarita Vihar Delhi-Mathura Road, New Delhi through its Director/Authorised Officer/Chairman.

7.      All India Institute of Medical Sciences, Ansari Nagar New Delhi-110029 through its Director.

                                      Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

 

Argued by:          Mrs. Madhu Gupta-complainant alongwith Mr.Umesh Gupta-husband of complainant.

                             Mr.Madhukar Pandey, Advocate for Opposite Parties No.1 to 5.

                             None for Opposite Party No.6.

                             Mrs. Veena Bhutani, Advocate for Opposite Party No.7.

                                                   O R D E R

B.M. BEDI, JUDICIAL MEMBER

          Dr.Madhu Gupta-complainant filed the present complaint averring as under:-

2.                The complainant is a doctor (Gynaecologist) and was practicing in her hospital namely “Naggal Chaudhary Hospital”. She was suffering from Arthritis since long. In the year 2010, she suffered from knee problem, so she visited Medanta, the Medicity, Global Health Private Limited-Opposite Party No.1 where Dr. Ashok Rajgopal-Opposite Party No.2 advised the complainant to get her knee replaced. She was admitted in the hospital on 07.02.2010; her knee replacement was done. According to the complainant, she incurred Rs.4.00 lacs on her treatment which included medicines, transportation, special diet etc.  (Bill Exhibit C-1).

3.                It was alleged that after implantation there was continuous discharge of some fluid (liquor substance) from her knee. She was again admitted in the above said hospital (opposite party No.1) on 05.05.2010 where she was operated upon and was discharged on 07.05.2010. She incurred Rs.70,000/- for her surgery and other expenses. (Bill Exhibit C-2). It was stated on both the occasions, though the treatment was not given by Dr.Ashok Rajgopal but his name was mentioned in the medical record/Discharge Summary.

4.                Despite the second surgery, the same problem developed again and there was a continuous discharge from the knees. There was a acute pain and instability in the left knee joint. She visited Opposite Party No.1 and the doctors started giving treatment for tuberculosis. The complainant visited Apollo Hospital-Opposite Party No.6 on 14.06.2010 where the doctors told that the complainant was not suffering from tuberculosis and also advised to get the implantation removed because the same was creating problem due to the negligent treatment at Medanta Hospital. It was also told that that there was acute infection in the implant due to the carelessness of the treating doctors. In Apollo Hospital, the complainant spent Rs.10,000/-. (Bill Exhibit C-3).

5.                After getting discharge from Apollo Hospital, she was again admitted in Medanta on 26.09.2011 for the removal of infectious implant and again surgery was done and implant was removed. The complainant spent more than Rs.1.00 lac in revision surgery of left knee. Discharge Summary is Exhibit C-4.

6.                As per the advice of doctors, she was again got admitted at Medanta Hospital for revision of removed implantation. She was sent for biopsy and after biopsy her wound started bleeding. She was discharged with advice to visit after one month. She submitted to have spent Rs.50,000/- vide bills Exhibit C-5.

7.                Since the disease suffered by the complainant became more serious, she visited All India Institute of Medical Sciences (AIIMS), Delhi in January, 2012 where the doctors did grafting on the knee but still the discharge of blood and fluid was not stopped. She was advised to get VAC dressing for which she spent about rupees one lac vide bills Exhibit C-6.

8.                After VAC dressing, though her discharge of fluid and bleeding stopped, but still she is unable to walk of her own. She further spent more than rupees one lac on the follow up treatment. (Bills Exhibit C-7). Thus, alleging it a case of medical negligence and deficiency in service on the part of Medanta Hospital-Opposite Parties No.1 to 5, the complainant sought compensation of Rs.10.00 lacs alongwith interest @ 18% per annum on account of the expenses incurred by her; Rs.10.00 lacs for damages, physical harassment etc; Rs.5.00 lacs for mental agony; Rs.20.00 lacs for loss of income and Rs.2.00 lacs as litigation expenses.

9.                The Opposite Parties No.1 to 4 in their joint written version while denying the allegations of the complainant stated that the treatment given to the complainant at Medanta Hospital was as per the standard and prevailing medical practices. Due care, caution and diligence was exercised by the opposite parties in choosing the course of treatment. The complainant had visited the opposite party No.1 with complaint of pain in knees. She was having outside investigations including X-ray and blood tests; Dr. Ashok Rajgopal   advised Bilateral Total Knee Replacement (TKR of both knees). It was an elective/planned procedure, so the complainant was admitted on 07.02.2010. The left knee was more painful than the right knee. The patient was a known case of hypertension and Rheumatoid arthritis and was on medication for both the diseases. After necessary examinations, both the knees were observed to be severely deformed with both patellas (knee cap) dislocated. Further examination also revealed knock knee deformity of 10 Degrees on Right knee and 20 Degree on the left knee along with gross instability on side to side movement of both knees. In view of the diagnosis of advanced degenerative joint disease secondary to rheumatoid arthritis of both knees, the patient was prepared for TKR. Pre anaesthetic including cardiac check up was conducted and clearance on these aspects was obtained. The patient and her attendants were duly explained and counseled about the diagnosis, suggested surgery, possible outcomes, known risks and complications including risk of infection, PE Pulmonary Embolism, DVT (Deep Vein Thrombosis), Aseptic Loosening etc. The patient underwent TKR of both knees on 08.02.2010 under CSE (Combined Spinal Epidural). Surgery was performed by Dr.Ashok Rajgopal-Opposite Party No.3 assisted by Dr. Vivek Dahiya-Opposite Party No.4 and Dr.Himanshu Kochhar. The surgery was uneventful and without any complications. Post surgery, the patient was received in ICU at 04:15 P.M. in a stable and afebrile condition with pulse of 92/min, BP 160/92, SPO2 at 99%. The patient was conscious, alert and was following verbal commands. She was provided appropriate medications and supportive care as required in her prevailing condition. Her dressings were changed on the second and fifth post-operative day and her wounds and stitch line were found to be healthy. She was walking with the support of walker, wearing a knee brace from 3^rd post operative day. She was discharged on 12.02.2010 with vitals in stable condition. The patient was able to do Range of Motion (ROM) exercises with active assistance and her ROM in the knees were 0-75 degrees in both legs and was able to walk using walker and assistance. She was advised to visit on 18.02.2010 for follow up treatment.

10.              Three months after the surgery and discharge from the hospital-opposite party No.1, the patient observed some discharge from left knee surgical side on or around 01.05.2010. She visited the opposite party No.1 on 04.05.2010 in OPD with complaint of serous/watery fluid discharge from left knee for the past four days. Physical examination revealed that the patient was afebrile with mild swelling and tenderness around left knee. It also showed no DNVD (Distal Neuro vascular deficit). Physical examination also revealed that patient’s right knee was healthy, sutures were healed and patient had no signs for inflammation in the right knee. On 05.10.2010 the patient was admitted for dressing in OT. Debridement and change of articular surface was done by the opposite party No.3 with assistance of Dr.Vivek Dahiya-OP4, Dr. Attique Vasdev, Dr.Vipin Tyagi. As per standard protocol, discharge fluid was sent for culture sensitivity. The procedure was uneventful. Post surgery, the patient was hemodynamically stable, conscious and oriented. She was not having any fresh complaints and was monitored by the treating team continuously. It is medically known that patients who are suffering from Rheumatoid arthritis and on medication for Rheumatoid arthritis are at an increased risk for the development of deep postoperative infection. The infection rate among Rheumatoid arthritis patients is 1.6 times greater than in the patients undergoing the same treatment for osteoarthritis. At the time of discharge on 07.10.2010, the stitch line was observed to be healthy and the patient was discharged in a stable condition on antibiotics and other supportive medication with advice to continue exercise, physiotherapy and massage. The patient was advised to visit for review in Ortho OPD on 15.05.2010. Meanwhile, the reports of culture sensitivity of pus and body fluids and histopathology sent on 05.05.2010, were received. The findings of the above reports did not mandate any change in the medication and treatment advised to the patient at the time of discharge.  

11.              The patient improved after the debridement procedure on 05.05.2010, appropriate antibiotics coverage and other supportive medication.  The patient again visited the opposite party No.3 on 22.09.2011 with complaints of discharge from the left knee for which repeat Aerobic culture and sensitivity of Pus was conducted. Culture & Sensitivity report dated 25.09.2011 revealed infection with growth of organism Staphylococcus Aureus and that organism was sensitive to Rifampicin. The patient was admitted under opposite party No.3 on 26.09.2011 for Stage-I Revision of Left Knee. The patient underwent Stage-I Revision on 27.09.2011. The surgery was uneventful. She was discharged on 30.09.2011 in good condition. On 19.12.2011, the patient was admitted for Biopsy of the Left Knee to assess the status of infection in the joint as ESR and CRP. On 20.12.2011, Biopsy Knee along with debridement and change of antibiotic impregnated cement spacer left knee was performed by the opposite party No.3. The procedure was uneventful and the patient was stable. She was discharged on 21.12.2011 in a stable condition and was asked to have prescribed medicines and to follow up in OPD on 27.12.2011, which the patient failed to do. Thereafter, the patient did not visit the opposite parties. Thus, denying the allegations of the complainant, it was prayed that the complaint be dismissed.

12.                        Opposite Party No.5 – Dr. Saleem Ahmed in his separate written version stated that neither any allegation is levelled nor any deficiency of service or negligence is alleged against him. However, denying the allegation of the complainant, it was prayed that the complaint be dismissed.

13.              Opposite Party No.6 – Inderprasath Apollo Hospital, in its separate written version stated that the complainant visited the hospital (opposite party No.6) on 14.06.2010 as an OPD patient for seeking opinion/treatment. However, the treating consultant Dr. Yash Gulati, has not made any remark or statement pertaining to the treatment provided at the Medanta Hospital. Thereafter, the complainant never visited the opposite party-opposite party No.6. It was prayed that the complaint be dismissed.

14.              The Opposite Party No.7- All India Institute of Medical Sciences, did not file any reply.

15.              Complainant herself appeared as CW-1 and also tendered documents Exhibit C-1 to C-59. On the other hand, the opposite parties No.1 to 5 tendered affidavits Exhibits OP-87 to OP-90 besides documents Exhibits OP-1 to OP-86.

16.              Arguments heard. Record perused.

17.              Dr. Madhu Gupta-complainant while appearing as CW-1 has stated that she was suffering from Rheumatoid Arthritis since 1992. In 2009, she fell down from staircase and suffered injury on her left knee. She visited Dr. Ashok Raj Gopal of Medanta Hospital, Gurgaon. Dr. Raj Gopal suggested her to replace both knee joints and surgical operation of both the knee joints was performed by Dr. Ashok Raj Gopal in February, 2010. She remained admitted in the hospital for about 5-6 days. At the time when she was discharged, there was no complaint with respect to the surgical operation. However, after two months there was discharge of water from the left knee. On being advised, second surgical operation was got done from Dr. Ashok Raj Gopal but still discharge continued from the left knee. After a few months, there was pus in the wound and another surgical operation was performed. However, Dr.Ashok Raj Gopal conducted Biopsy and the complainant was discharged after 5-6 days. Thereafter, the complainant took treatment from AIIMS, New Delhi.  This witness was cross-examined at length by Shri Madhukar Pandey, learned counsel for the opposite parties No.1 to 5.

18.              It was argued by the complainant that there was gross negligence and deficiency in service on the part of the opposite parties while treating her and therefore compensation sought by her be granted.

19.              Learned counsel for the opposite parties while opposing the contention of the opposite parties, contended that there is nothing on the record to suggest any kind of negligence and deficiency in service on the part of the opposite parties. In support, reference was made to the medical literature under the heading Incidence and Risk Factors of Prosthetic Joint Infection After Total Hip or Knee Replacement in Patients With Rheumatoid Arthritis (RA).

20.              It has been clearly mentioned in the above mentioned literature that “Patients with RA who undergo total hip or knee replacement are at increased risk of prosthetic joint infection, which is further increased in the setting of revision arthroplasty and a previous prosthetic joint infection.” It is further mention that “Total joint replacement is a common procedure in patients with rheumatoid arthritis (RA). This patient population has been indentified to have a higher baseline risk of infectious disease compared with the general population”. 

21.              From the evidence produced on the record it is established that the replacement of knee joints of the complainant were under risk. Although advancement in preventive strategies have contributed to a decline in prosthetic joint infection following total joint replacement, this serious complication was observed in 4.2% of total hip or knee replacements in RA patients by 5 years after the surgery. Reimplantation procedure after removal of an infected prosthesis carry a considerable risk of reinfection and this risk depends upon age, sex, surgery site and surgery type. Besides, two-stage reimplantation is the best option to manage chronically infected knee prosthesis. Revision of chronically infected TKA remains a challenge for orthopaedic surgeons due to infection eradication and problems in recreating anatomy and restoring knee function. A two-stage reimplantation remains as the most effective treatment for eradicating infection in chronically infected TKAs.  

22.              In C.P. Sreekumar (Dr.)Ms (Ortho) versus S. Ramanujam, (2009) 7 Supreme Court Cases 130, Hon’ble Supreme Court has held that onus of proving medical negligence lies on complainant. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.

23.              In evidence of the opposite parties, affidavits of Dr.Awadhesh Kumar Dubey (Exhibit OP-88); Dr. Ashok Rajopal-OP3 (Exhibit OP-88); Dr.Vivek Dahiya-OP4 (OP-90) and Dr. Saleem-OP5 (Exhibit OP-90) have been tendered. However, the complainant did not cross-examine these doctors. This Commission cannot constitute itself into an expert body and contradict the statements (affidavits) of the above named doctors unless there is something contrary on the record by way of expert opinion or there is any medical treatise on which reliance can be based.  Without support of any expert’s opinion, the plea of the complainant alleging medical negligence cannot be accepted on the basis of bald statement of the complainant.

24.              The test of medical negligence as laid down in Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 is accepted by Hon’ble Supreme Court in several judgments. The principle laid down in Bolam case is thus:

“..A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art….”

25.              What constitutes medical negligence is now well established through a number of judgments of the Hon’ble Supreme Court including in Jacob Mathew v. State of Punjab & Anr., III(2005) CPJ 9 (SC). Essentially while examining medical negligence, this Commission has to see; (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis-including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated. 

26.              If the medical profession, as a whole, is hemmed in by threat of action, criminal and civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery.

27.              Undisputedly, the complainant has not led evidence of any expert witness in support of her claim. So, without support of any expert’s opinion, the case of the complainant cannot be accepted only on the basis of her bald statement. On the other hand, the opposite parties have produced evidence and medical literature to show that due care and professional skill was exercised by the treating doctors in conducting operations of the complainant. The doctors were well qualified to do the treatment of the complainant and to contradict; no evidence has been led by the complainant. The treating doctor can only treat but cannot guarantee the success of a surgical operation which inevitably is fraught with risks.

28.              It is equally significant that the complainant also took advice/treatment from other hospitals namely Inderprasath Apollo Hospital, Delhi and All India Institute of Medical Sciences, New Delhi but none of them observed adversely about the choice of treatment or any negligence in the operations.

29.              In view of the above, this Commission does not think that any case of negligence has been made out by the complainant. The opposite parties have followed the most desirable and expected course of treatment/operation; so they cannot be held liable merely on the allegation of the complainant.  Hence, the complaint is dismissed.

 

 

Announced: 27.01.2017

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL