DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.
CC.No.67 of 14-2-2013
Decided on 30-09-2013
Rukmani aged about 20 years D/o Karamjeet Singh R/o Gopal Nagar, Bathinda.
........Complainant
Versus
1.Multispecility Medical Centre & Hospital, near Railway Crossing, Rampura Phul, District Bathinda, through its proprietor.
2.Dr.Gurinder Singh Mann, MS (Ortho), of Multi Specialty Medical Centre & Hospital, near Railway Crossing, Rampura Phul, District Bathinda, now proprietor of Apex Hospital, near Easy Day, Factory Road, Rampura Phul, District Bathinda.
3.The United India Insurance Co. Ltd., 60, Janpath, New Delhi, through its Divisional Manager.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt.Vikramjit Kaur Soni, President.
Sh.Amarjeet Paul, Member.
Smt.Sukhwinder Kaur, Member.
Present:-
For the Complainant: Sh.H.S Chauhan, counsel for the complainant.
For Opposite parties: Sh.Lalit Garg, counsel for opposite parties.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The instant complaint is filed under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an ’Act’) by the complainant. The brief facts of the complaint are that the complainant was suffering from caries spine of vertebrae D3 and D4 and was in great pain and difficulty in moving about. The complainant visited the opposite party No.1 for the medical treatment and the opposite party No.2 after check-up informed her that she is required to undergo spine surgery, as her vertebrae D3 and D4 have been damaged due to caries and her vertebrae are required to be replaced with new still vertebrae. The opposite party No.2 further informed the complainant that it would take the services of a Neuron Surgeon of PGI, Chandigarh for conducting the spine surgery on her and she will be Okay after the operation. Under the bonafide belief, the complainant consented to go for medical treatment to the opposite party No.2 and admitted to the opposite party No.1 on 17.6.2010. On 18.6.2010, the opposite party No.2 informed the complainant in the morning that she would be operated for her spine on that day by a Neuron Surgeon of PGI, Chandigarh and was taken to operation theater. The complainant was operated on 18.6.2010 but as per her attendants no Neuron Surgeon came from PGI to conduct the operation, rather the opposite party No.2 conducted the spine surgery himself on her. After the operation, the opposite party No.2 informed the complainant that it has replaced her damaged vertebrae D3 and D4 with new still vertebrae and now she would be okay within one year and would not have difficulty in future. The opposite party No.2 charged Rs.44,000/- for the surgery and in total the complainant has spent Rs.2 lacs on the surgery including medicines, MRI, various tests, attendants, conveyance, diet etc. After the operation, the complainant remained on complete bed rest as advised by the opposite party No.2 and took all post-operation care for about one year but there was no improvement in her condition, rather her condition worsened day by day. The complainant was taken to the opposite party No.2 by her sister Rajni for the treatment from time to time and her condition and problem were informed to the opposite party No.2 but her condition did not improve. After that the attendants of the complainant took her to various other specialist/surgeons for taking their opinion regarding her condition and surgeon informed them that the doctor has negligently operated her and her damaged vertebrae D3 and D4 have not been replaced with still vertebrae and it is also informed to the attendants that the oversized thread has been used for stitching the wound that has resulted in non-healing of the wound and some of the stitches have got opened and there was swelling and redness in the stitch wounds. The complainant was advised to go PGI, Chandigarh for further treatment. The complainant further averred that she has not been operated by an authorized and competent Neuron Surgeon as assured by the opposite party No.2, rather the opposite party No.2 itself conducted the spine surgery on her negligently coupled with the fact that legally and medically it was not competent to conduct spine surgery for changing of the vertebrae on a patient without having proper qualification for the purpose as the opposite party No.2 is qualified only M.S (Ortho) and he is not a Neuron Surgeon. The opposite party No.2 has not called any Neuron Surgeon for conducting the spine surgery on the complainant as assured by it and did not replace the damaged vertebrae, in this way the opposite party No.2 cheated her.
After the operation, the complainant started suffering from fits. The complainant visited Singla Neurology Clinic, Bathinda, Guru Gobind Singh Medical College and Hospital, Faridkot and Bharat Brain Hospital, Bathinda and thereafter PGI, Chandigarh for the medical treatment and the doctor of PGI, Chandigarh advised her for re-surgery. The complainant has also got served a legal notice but a vague reply has been given to the same. The complainant further alleged that she is only 24 years old and was able to walk before the surgery but after the operation she has been rendered incapacitated and is confined to bed and is not able to answer the nature’s calls. The complainant has been incapacitated for the rest of her life in young age and all this happened due to the medical negligence and breach of trust on the part of the opposite party No.2. Hence the complainant has filed the present complaint to seek the directions to the opposite parties to refund the amount charged from her on account of surgery and medical treatment by the opposite party Nos.1 and 2 for the operation alongwith upto date interest, cost and compensation.
2. Notice was sent to the opposite parties. The opposite party Nos.1 and 2 after appearing before this Forum have filed their joint written statement and pleaded that this complaint is barred by limitation. The complainant has not produced any expert evidence, for this the opposite party Nos.1 and 2 have referred the various authorities. The opposite party Nos.1 and 2 on merits pleaded that the complainant is an old case of caries spine i.e. T.B spine and she had lost valuable and precious time in starting the treatment. The complainant was brought to the opposite party Nos.1 and 2 by the attendants in bedridden condition on 18.5.2010 and was suffering from caries spine of vertebrae D3 and D4 that were completely damaged. When the complainant had come to the surgeon for the medical treatment, she was already bedridden for one and half year. The attendants of the complainant were advised to get her re-examined for MRI to know the status of her spinal cord but her attendants were so negligent that the complainant was brought to the surgeon on 18.5.2010 for the first time and thereafter on 17.6.2010. The complainant had wasted more than one year in starting Anti-Tubercular drugs and even more than 8 months after completion of ATT regimen. The complainant was never promised sure shot replacement of vertebrae with metal implant, rather her attendants were apprised on various modalities of the treatment including wedge osteotomy as it was an old case of caries spine with fused spine. The complainant was advised for wedge osteotomy by the surgeon and no other assurance as alleged by the complainant was given to her or her attendants. The complainant was never assured that she would be operated by a Neuron Surgeon of PGI, Chandigarh. The surgeon charged Rs.40,000/- from the complainant for her medical treatment and no assurance of implantation of vertebrae was given to her. The implantation of vertebrae is very costly. Vertebral replacement is advised in cases after removal of debris and fixing spine with instrumentation, whereas the complainant came to the surgical centre within two to three weeks with cold abscess but she had come to the surgeon at a belated stage of caries spine,where vertebral replacement was not at all possible and advisable. The wedge osteotomy was done on the complainant by Dr.Praveen Garg, Orthopedic Spine Surgeon, Ex Senior Resident Government Medical College, Chandigarh, he has been trained by eminent spine Surgeon Prof. Raj Bahadur, Head of Department of Orthopedics., Government Medical College, Chandigarh and the opposite party Nos.1 and 2 paid Rs.10,000/- for surgery to Dr.Praveen Garg and his name has been duly entered in the said hospital. The complainant and her attendants were informed before hand about the pros and cons of the operation and it is most improbable and unimaginable that a surgeon will promise for complete recovery after the surgical operation to the complainant who is suffering from caries spine and has been bedridden and incapacitated for one and half year at a stretch. After the operation the attendants of the complainant were informed about the damaged spinal cord of the complainant and the same is also reflected in the OT notes dated 18.6.2010. The complainant’s bills, MRI and various tests collectively cannot exceed to the limit of Rs.44,000/-, the opposite party No.2 has charged only Rs.44,000/- from her. After the operation the complainant visited the surgeon only once for some other problem, whereas she was asked to visit regularly to the treating doctor. There is no such entity of oversize thread in the medical field. The complainant remained admitted in the hospital from 17.6.2010 to 9.7.2010, in total 23 days and during this period all the stitches were removed as all the stitches are to be removed by 7-10 days. As such the allegations of non-healing of wounds and stitches are not true. The opposite party No.2 is competent Orthopedic Spine Surgeon and has conducted numerous spine surgeries successfully. The complainant has served the legal notice upon the opposite party Nos.1 and 2 that was replied by them. The complainant was diagnosed as old case of caries spine D3 and D4 with paraplegia. Paraplegia means that the complainant is already bedridden and incapacitated.
3. The opposite party No.3 after appearing before this Forum has filed its written statement and pleaded that the opposite party No.2, Dr.Gurinder Singh Mann is insured with United India Insurance Company Ltd., 54, Janpath, Cannaught place, New Delhi-110001, presently at 60, Janpath, Cannaught place, New Delhi-110001. During the period the patient, was treated by the opposite party No.2 on 18.6.2010. The opposite party No.3 has issued Professional Indemnity policy bearing No.040100/46/09/35/00004202 effective from 1.1.2010 to 31.12.2010, the standard terms and conditions with its exclusion of this policy are applicable in the present case. The opposite party No.3 accept the written statement of the opposite party No.2 in totality and the same be considered as its written statement.
4. The parties have led their evidence in support of their respective pleadings.
5. Arguments heard. The record alongwith written submissions submitted by the parties perused.
6. The complainant submitted that the opposite party No.2 treated her negligently and carelessly. The complainant has alleged the medical negligence on the part of the opposite party No.2 on the following grounds:-
1) After examining the complainant the opposite party No.2 conveyed her that she is required to undergo the spine surgery as her vertebrae D3 and D4 have been damaged due to the caries and her vertebrae are required to be replaced with new still vertebrae.
2) The opposite party No.2 conveyed the complainant that it would take the services of a Neuron Surgeon of PGI, Chandigarh for conducting the spine surgery on her and she would be Okay after the operation.
3) The complainant submitted that the opposite party No.2 has negligently operated her and her vertebrae D3 and D4 have not been replaced with still vertebrae.
4) The attendants of the complainant were informed that the oversized thread has been used for stitching the wound that has resulted in non-healing of the wound and some of the stitches have got opened and there was swelling and redness in the stitch wounds.
5) As conveyed by the opposite party No.2, the complainant has not been operated by an authorized and competent Neuron Surgeon, rather the opposite party No.2 itself conducted the spine surgery on her negligently.
6) Medically the opposite party No.2 was not competent to conduct the spine surgery for changing of vertebrae on a patient without having proper qualification for the purpose as the opposite party No.2 is qualified only M.S (Ortho) and it is not a Neuron Surgeon.
7) After the operation, the complainant started suffering from fits.
8) The opposite party No.2 has charged the amount of Rs.44,000/- for the surgery and in total the complainant has spent Rs.2 lacs on the surgery including medicines, MRI, various tests, attendants, conveyance, diet etc.
9) The complainant further submitted that she visited PGI, Chandigarh and the doctor of PGI, Chandigarh advised her for re-surgery.
10) Before operation she was able to walk but after the operation she has been rendered incapacitated and is confined to bed and is not able to answer the nature’s calls.
7. The complainant has visited the opposite party No.2 with the problem of spine on 18.6.2010, the treating doctor informed her in the morning of 18.6.2010 that she would be operated for her spine on that day by a Neuron Surgeon of PGI, Chandigarh but no Neuron Surgeon came from PGI to conduct the operation and the opposite party No.2 himself conducted the operation in a negligent way. The complainant is only 24 years old and due to performing the operation in negligent way she is unable to walk and has become bedridden. The legal objection taken by the opposite party Nos.1 and 2 that this complaint is barred by limitation as the complainant has been operated on 18.6.2010 and the present complaint has been filed on 14.2.2013, as per the ’Act’ there is period of 2 years for filing the present complaint from the accrual of cause of action. The other objection of the opposite party Nos.1 and 2 is that there is no expert evidence on the file to prove the negligent on the part of the opposite party No.2.
Regarding the first objection a perusal of documents placed on file shows that the complainant has been operated for spine on 18.6.2010, since 18.6.2010 she has been suffering from the fits and unable to walk and has been taking the treatment from the various places till date. There is no improvement in her condition, rather it has deteriorated and has become bad to worse. Thus this complaint is well within the limitation. Regarding the second objection 100% permanent disability certificate is sufficient to prove that the complainant is suffering till date.
8. The very first ground on which the complainant has attributed the negligence on the part of the opposite party No.2 is that she was conveyed by it that she is required to undergo the spine surgery as her vertebrae D3 and D4 have been damaged due to the caries spine and her vertebrae are required to be replaced with new still vertebrae. To this, the opposite party Nos.1 and 2 submitted that the complainant is an old case of the caries spine i.e. T.B spine and she had lost valuable and precious time in starting the treatment. The complainant was brought to the opposite party No.2 by the attendants in bedridden condition on 18.5.2010 and was suffering from the caries spine of vertebrae D3 and D4 that were completely damaged. When the complainant had come to the opposite party No.2 for the medical treatment, she was already bedridden for one and half year. The attendants of the complainant were advised to get her re-examined for MRI to know the status of her spinal cord but her attendants were so negligent as the complainant was brought by them to the surgeon on 18.5.2010 for the first time and thereafter on 17.6.2010 i.e. after one month. The complainant had wasted more than one year in starting Anti-Tubercular drugs and even more than 8 months after completion of ATT regimen. The complainant was never promised sure shot replacement of vertebrae with metal implant, rather her attendants were apprised on various modalities of the treatment including wedge osteotomy as it was an old case of the caries spine with fused spine. The complainant was advised for wedge osteotomy by the surgeon, whereas a perusal of record placed on file shows that there is no such document to prove that the complainant was not able to walk or she was brought in bedridden condition or no assurance was given by the treating doctor i.e. opposite party No.2 that her vertebrae D3 and D4 will be replaced with still vertebrae. The complainant and her attendants being laymen are not aware of such terminology i.e. replacement of vertebrae D3 and D4 with still vertebrae, only a medical person can tell that such type of treatment can be done. Regarding the second ground of negligence on the part of the opposite party No.2, the complainant was conveyed by the treating doctor that she would be treated by a Neuron Surgeon of PGI, Chandigarh for conducting the spine surgery, whereas the opposite party No.2 has specifically denied that it was ever assured her that she will be operated by a Neuron Surgeon of PGI, Chandigarh. The wedge osteotomy was done on the complainant by Dr.Praveen Garg, Orthopedic Spine Surgeon, Ex Senior Resident Government Medical College, Chandigarh, he has been trained by eminent spine Surgeon Prof. Raj Bahadur, Head of Department of Orthopedics., Government Medical College, Chandigarh and the opposite party Nos.1 and 2 and spine surgeon paid Rs.10,000/- for surgery and his name has been duly entered in the said hospital. The complainant and her attendants were informed before hand about the pros and cons of the operation. There was no promise on the part of the opposite party No.2 that the complainant would completely recover after the surgical operation, who is suffering from the caries spine and has been bedridden and incapacitated for one and half year at a stretch. The other ground of negligence averred by the complainant is that she has been negligently operated by the opposite party No.2 and her vertebrae D3 and D4 were not replaced with still vertebrae. The opposite party Nos.1 and 2 to this have specifically mentioned that the vertebrae D3 and D4 have not been replaced with still vertebrae and only the wedge osteotomy was done i.e. the removal of compression on the cord was done. As per the version of the complainant her attendants were informed that the oversized thread has been used for stitching the wound that has resulted in non-healing of the wound and some of the stitches have got opened and there was swelling and redness in the stitch wounds, to this the opposite party Nos.1 and 2 have specifically submitted that there is no term of the oversized thread. Regarding the other stand of the complainant that she has not been operated by an authorized and competent Neuron Surgeon, the opposite party No.2 itself conducted the spine surgery on her negligently, the opposite party Nos.1 and 2 specifically submitted that the wedge osteotomy was done on the complainant by Dr.Praveen Garg, the Orthopedic Spine Surgeon. Regarding the allegation of the complainant that she has not been operated by a Neuron surgeon as the opposite party No.2 is qualified only M.S (Ortho) only, whereas as per the medical books M.S (Ortho) is fully competent to conduct the spine surgery. A perusal of record shows that the opposite party No.2 has himself conducted the surgery and has not taken the assistance of any other duly qualified doctor/surgeon. The other ground of negligence on the part of the opposite party No.2 is that after the operation, the complainant started suffering from fits, the opposite party No.2 has failed to place on file any explanation as to why the complainant has started suffering from fits after the operation, meaning thereby her spinal cord had suffered some damage. Regarding the allegation of the complainant that the opposite party No.2 has charged the amount of Rs.44,000/- for her treatment and including medicines etc. she has spent Rs.2 lacs on her treatment at opposite party No.1. The opposite party No.2 admitted the amount of Rs.44,000/- but has denied other expenses whereas a perusal of record shows that she has spent much more that as she has placed on file receipts of medical bills, surgery etc. The other allegation is that the doctor of PGI, Chandigarh advised her for re-surgery as the operation done by the opposite party No.2 resulted in various complications, to this no specific reply has been given by the opposite parties. The other averment of the complainant that before operation she was able to walk but after the operation she has been rendered incapacitated and is confined to bed and unable to answer the nature’s calls, to this the opposite party Nos.1 and 2 have specifically submitted in para No.1 that the complainant is an old case of caries spine i.e. T.B spine and she had lost valuable and precious time in starting the treatment. The complainant was brought to the opposite party Nos.1 and 2 by the attendants in bedridden condition on 18.5.2010, she was already bedridden for one and half year but to support his this version the opposite party No.2 has placed nothing on file that she was bedridden from last one and half year.
9. The treatment was started after seeing the MRI report dated 19.5.2010, Ex.C4. The relevant portion of MRI report Ex.C4 shows:-
“The study reveals partial collapse of D3 and D4 vertebral bodies with 40 to 50% reduction in height of vertebral bodies and endplate changes. There is anterior wedging with focal gibbus formation and retrolisthessis of D3, D4 vertebral bodies. Localized hypertrophy of fat (hyperintense on T2 & T1 WI) seen posterior to posterior thecal sac at D2 to D5 level.
Note made of retropulsion of D3/D4 vertebral bodies with indentation on the thecal sac, reduction in the dorsal spinal canal diameter and compression on the dorsal spinal cord. There is compressive myelopathy in the spinal cord at D3, D4 level with focal altered signal intensity and thinning of cord parenchyma.
The intervening disc space at D3-4 is reduced with endplate cortical irregularity and erosions on the superior aspect of D4 and inferior aspect of D3 vertebra. Note made of associated marginal osteophyte formation.
No significant abnormal prevertebral or paravertebral soft tissue component seen in present study.
Rest of the vertebral bodies and intervertebral discs are normal.
Rest of the dorsal spinal canal diameter is normal.
Opinion:-MRI reveals partial collapse of D3 and D4 vertebral bodies with anterior wedging, gibbus formation, endplate cortical irregularity, erosions and retropulsion causing compression on dorsal spinal cord. There is compressive myelopathy in the dorsal spinal cord at D3, D4 level with focal altered signal intensity and thinning of cord parenchyma.....”
The complainant admitted to the opposite party No.1 on 17.6.2010 and was operated on 18.6.2010 and discharged on 9.7.2010. A perusal of Inpatient Record, Ex.C5 shows that on page No.2 various cutting have been made while recording the vitals of the complainant. In discharge summary, Ex.C8, the blood group of the complainant is shown as ’A +ve’, whereas her blood ground is ’A -ve’. A perusal of Ex.C9 shows ’caries spine with paraplegia, operated for decompression. ? Epilepsy’ and the patient has been referred to Dr.Gaurav Singla, Singla Neurology Clinic, Pragma Hospital, Bhatti Road, Bathinda on 9.9.2010 vide Ex.C10. Dr.Gaurav Singla advised for repeat MRI Dorsal spine and the report has been mentioned on page No.3 of Ex.C10 that ’collapse D3 and D4 with anterior wedges gibbus formation, endplate cortical........causing compression on spinal cord. Thereafter another MRI Dorsal spine+MR Myelogram was done on 5.10.2010 vide Ex.C12. The relevant portion of Ex.C12 is reproduced:-
“Present study reveals partial collapse of D3 and D4 vertebral bodies with 50 to 55% reduction in height of vertebral bodies and endplate changes. There is anterior wedging with focal gibbus formation and grade 1 retrolisthessis of D3, D4 vertebral bodies. Retropulsion of D3/D4 vertebral bodies is causing indentation on the thecal sac, reduction in the dorsal spinal canal diameter and compression on the dorsal spinal cord. There is compressive myelopathy in the spinal cord at D3, D4 level with focal altered signal intensity and thinning of cord parenchyma.
Localized hypertrophy with focal insinuation of fibrofatty tissue seen posterior to posterior thecal sac at D2 to D5 level as evidenced by hyperintensity on T2 & T1 WI.
The intervening disc space at D3-4 is reduced with endplate cortical irregularity and erosions on the superior aspect of D4 and inferior aspect of D3 vertebra. Note made of associated marginal osteophyte formation.
Degenerative changes seen in D2-3 and D4-5 intervertebral discs.
Rest of the vertebral bodies and intervertebral discs are normal.
Rest of the dorsal spinal canal diameter is normal.
There is paravertebral collection of left side D4, D5 level and moderate amount of left pleural effusion.
Opinion:-MRI reveals-
· Partial collapse of D3 and D4 vertebral bodies with anterior wedging, gibbus formation, endplate cortical irregularity, erosions and retropulsion causing compression on dorsal spinal cord.
· Compressive myelopathy in the dorsal spinal cord at D3, D4 level with focal altered signal intensity and thinning of cord parenchyma.
· Localized hypertrophy of fibrofatty tissue posterior to posterior thecal sac at D2 to D5 level with hyperintensity on T2 & T1WI.
· Left pleural effusion.
Please correlate clinically for sequale of spondylodiscitis, caries spine, at D3-4 level.”
The outdoor ticket dated 20.11.2010, Ex.C13, of Guru Gobind Singh Medical College and Hospital, Faridkot shows that patient was not brought; history of carries spine with paraplegia D2-D4, operated 6 months back; history of intake of ATT X fmth, MRI November, 2010; history of seizure. Vide Ex.C14 the complainant was checked by Bharat Brain Hospital on 24.1.2011 which shows D3 and D4 TB with lowered description of D3, Antro-lateral decompression performed at another hospital on 17.6.2010 according to discharge summary, no improvement; Advised:-Prognosis explained to relatives referred on request to PGI, Chandigarh. All the documents placed on file shows that the complainant has been seeking the treatment from one place or the other.
10. The defence taken by the opposite party Nos.1 and 2 that the complainant is an old case of caries spine i.e. T.B spine and she had lost valuable and precious time in starting the treatment as she was brought to the opposite party Nos.1 and 2 by the attendants in bedridden condition on 18.5.2010 and was suffering from caries spine of vertebrae D3 and D4 that were completely damaged. Only process was to do wedge osteotomy as the complainant is an old case of caries spine i.e. TB. The Dots treatment for TB i.e. caries spine is given to all the patients on OPD basis only and it is upto the patient himself/herself and her attendants to get herself/himself treated for the complications. The complainant was on TB treatment Dots Cat 2 since September 2009. The complainant was either a relapse or failure case and even she got conducted MRI on 28.8.2009 vide receipt No.37761. The complainant concealed the history of suffering from TB of caries spine in September 2009 and getting treatment for the same at that time from the Civil Hospital, Bathinda under National Tuberculosis Control Programme and she was registered under the said programme under category-II re-treatment (relapses, failure, treatment after default) others. The category in which the complainant was placed in the abovesaid programme by the Civil Hospital, Bathinda shows that she was under medical treatment and then she defaulted in treatment and again resumed treatment vide treatment card in which she was placed in category-II. The complainant concealed of conducting MRI on her on 28.8.2009 in Adesh Diagnostics, Bathinda and also concealed OPD slip dated 18.5.2010 bearing stamp dated 17.6.2010 regarding her admission and did not disclose/explain the consequences of the treatment. The complainant and her attendants themselves are negligent/careless and responsible for paraplegia that was prevalent before the surgery. The opposite party Nos.1 and 2 further submitted that the spine surgery is a field where both Neuron and Ortho Surgeons work for various modalities, Neuron Surgeons operate for intradural pathology and orthopaedic surgeons on the vertebrae and bones of spine. The spine surgery does not cause epilepsy. Epilepsy is an idiopathic disease after ruling out other causes as infection, TB, tumor etc. of the brain. The wedge osteotomy was done on the complainant by Dr.Praveen Garg, Orthopedic Spine Surgeon, Ex Senior Resident Government Medical College, Chandigarh, he has been trained by eminent spine Surgeon Prof. Raj Bahadur, Head of Department of Orthopedics., Government Medical College, Chandigarh and the opposite party Nos.1 and 2 paid Rs.10,000/- to the spine surgeon for the surgery and his name has been duly entered in the said hospital. There was a partial collapse of D3 and D4 and should have known that even 1-2mm disc prolapsed is sufficient to cause pain and weakness, as such the medical terminology of partial collapse means grave prognosis. The complainant concealed the facts of the report that also comments on the status of cord with myelopathy and gliosis of the nerve that means complete damage. Ex.OP1/3 shows that Dots treatment for TB i.e. caries spine given to all the patients on OPD basis only and it is upto the patient himself/herself to present to the doctor for treatment/complications. Ex.OP1/3 also shows that the complainant was on TB treatment Dots cat 2 since September 2009 that means either she was a defaulter/relapse or failure case and was put on Dots cat 2 in September 2009 on the basis of MRI dated 28.8.2009 vide receipt No.37761 for this she had paid Rs.2800/- vide Ex.OP1/6. Mere non improvement of the patient after treatment/surgery, when the treating doctor performed the surgery to best of his skills and has followed the proper procedure as prescribed and not done anything wrong, which in ordinary course of nature one would not do and is not a prescribed method of treatment, does not amount to negligence. The surgery done in this particular case was to release the pressure from the cord through wedge osteotomy, as there was partially collapsed and malunited vertebrae. The improvement in such cases depends upon the severity of the disease and duration of the symptoms and the compliance of the patient in ATT/DOTS TB treatment.
11. The case in hand is regarding the serious illness of the complainant. The opposite party Nos.1 and 2 have specifically submitted that the complainant was operated by Orthopedic Spine Surgeon and he assisted him. If for the argument sake it is believed that if the opposite party No.2 was assisted by Dr.Praveen Garg, the Orthopedic Spine Surgeon, then why the name of the doctor in the discharge summary has not been entered, moreover before surgery the name of Dr.Praveen Garg has not been disclosed to the complainant. If for argument sake it is believed that the complainant was operated by Dr.Praveen Garg, Orthopedic Spine Surgeon, the opposite party No.2 has failed to prove it with documentary evidence that for operating the spine has had special qualification. No record of medical qualification of Dr.Praveen Garg has been placed on file. There are no treatment, pre-operative or post-operative notes given by Dr.Praveen Garg are placed on file which shows that this an afterthought on the part of the opposite party No.2 or we can say to fill lacuna for not seeking the advice or consultation of any other doctor of his equal qualification. The opposite party No.2 admitted that the complainant was suffering from carries spine i.e. TB and her vertebrae D3 and D4 were completely damaged and replacement was not advisable in this case. It is the duty of the treating doctor i.e. opposite party No.2 to first seek the opinion of other doctors specialized in that field before doing the surgery on the complainant as it is the matter of common knowledge that the spine is a pivot of the body and all the main functions of the body are connected to the spinal cord. If the condition of the complainant was so critical, it became the foremost duty of the opposite party No.2 to consult the team of doctors and got her checked from them before performing the surgery i.e. wedge osteotomy on her spine. The complainant has started the treatment on the basis of MRI so the fact came to the knowledge of the opposite party No.2 that she was suffering from TB i.e. carries spine, again it became the duty of the treating doctor to treat her for the TB first, before doing any surgical intervention. The opposite party No.2 should have performed the surgery with utmost care and diligence but the record given to the complainant shows that no elaborate consent letter has been got signed from her or her attendants and no porns and corns are explained to her in a detailed manner. In such complicated case it becomes the duty of the treating doctor to consult other doctors of his fields preferably Neuron Surgeon as compression was causing Gliosis which means damage to the cord but no such efforts has been done on the part of the opposite party No.2. The opposite party No.2 has also another option to refer her to the higher medical institution for her treatment. Thus a doctor foremost duties are to manage the patient properly without thinking of earning any monetary benefits. The complainant has become physically disabled to 100% (hundred percent), this can be proved from Ex.23. The relevant portion of Ex.C23 is reproduced:-
“This is to certify that Shri/Smt./Km. Rukmani Son/Wife/Daughter of Sh.Karamjit Singh R/o Gopal Nagar Bathinda, age 22 years old male/female. Registration No......is a case of Spartic Paraplegia with rectal/urinary inconvenience.
He/She is physically disabled/visual disabled/speech & hearing disabled and has % (100% (Hundred) percent) permanent (Physical impairment/visual impairment/speech & hearing impairment) in relation to his/her.”
The complainant is a young female of 24 years, due to non-proper treatment, her life has become miserable. Whereas the females of her age are either studying or getting married. She is confined to the bed with hundred percent permanent physical disability which amounts to physical as well as mental harassment and agony not only for her rather for the entire family i.e. her attendants also.
The support can be sought by the precedent laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled Institute & Anr. Vs. Bhanwar Lal, 218 (NC) wherein it was held:-
“Consumer Protection Act, 1986, Sections 2(1)(g), 14(1)(d), 21(b)-Medical Negligence-Osteo-tuberculosis and pyogenic septic-Improper treatment-40% disability-Alleged deficiency in service-District Forum allowed complaint-State Commission modified order-Hence revision-No document including biopsy report was submitted-Respondent was admitted in hospital at the age of 25 years-He suffered disability at the hands of petitioners-It must have caused mental agony and loss of future prospects-Fora below rightly awarded compensation.”
Further the support can also be sought by the precedent laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled Shailesh A.Shah (DR.) Vs. Khodabhai Ganeshdas Patel, (NC) 435, wherein it was held:-
“Consumer Protection Act, 1986, Sections 2(1)(g), 14(1)(d), 21(a)(i)-Medical Negligence-Surgery-Alleged complications after operation for removal of stone in kidney-After operation complainant developed a new problem of passing urine mixed with stool-Complainant was shifted to another hospital-Doctor told bladder was damaged and a false passage between bladder and intestine created where fistula has developed-Complainant alleging deficiency in service-District Forum allowed complaint and granted compensation-State Commission allowed the complaint-Hence Appeal-According to own admission of O.P., complainant complained of passing of urine mixed with stool before Sonography report-Sonography report will not reveal any injury in bladder-Reliance on these reports cannot be made-Report of second Hospital is relied-O.P. Cannot escape liability of fistula having developed after performing surgery by him-State Commission order upheld.”
Thus from the above discussion we are of the considered opinion that there is no affidavit of Dr.Praveen Garg who as per the version of the opposite party Nos.1 and 2 has operated the complainant alongwith the opposite party No.2. The opposite party No.2 submitted that he paid Rs.10,000/- to Dr.Praveen Garg but there is no such evidence on file. Moreover there is no such evidence on file to prove that there was any other doctor present at the time of performing the surgery on the complainant. The surgery done by the opposite party No.2 resulted in the total confinement of the complainant in bed and she started suffering from the fits which is evident from the medical record placed on file.
12. Thus from the above findings we are of the considered opinion that there is negligence on the part of the opposite party Nos.1 and 2 in treating the complainant. Hence this complaint is accepted with Rs.1.50/- lac (Rs.One lac fifty thousands) including cost, compensation and expenses incurred by her on her medical treatment, against the opposite party Nos.1 and 2 and dismissed qua the opposite party No.3.
13. With utmost regard and humility to the authorities relied upon by the opposite parties, they have distinguishable facts and circumstances.
14. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.
15. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.
Pronounced in open Forum
30-09-2013
(Vikramjit Kaur Soni)
President
(Amarjeet Paul)
Member
(Sukhwinder Kaur)
Member
