BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 126 of 2018
Date of Institution : 13.04.2018
Date of Decision : 04.10.2021.
Ved Parkash, aged 50 years, son of Shri Shiv Dayal, resident of village Goriwala, Tehsil Dabwali, District Sirsa.
……Complainant.
Versus.
1. Paras Hospital, Bones, Joint and General Hospital, Opp. R.S.D. School, Dabwali Road, Sirsa, District Sirsa, through its proprietor Dr. Saurabh Walia.
2. Dr. Saurabh Walia, proprietor Paras Hospital, Bones Joint and General Hospital, Opp. R.S.D. School, Dabwali Road Sirsa, District Sirsa.
3. The Oriental Insurance Company Ltd., Branch Office at Janta Bhawan Road Sirsa, through its Branch Manager with which Dr. Saurabh Walia is insured under Professional Indemnity Policy No. 272200/48/2017/0031 valid w.e.f. 16.8.2016 to 15.8.2017.
..…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI JASWANT SINGH…………….. PRESIDENT
SMT. SUKHDEEP KAUR………….. MEMBER
Present: Sh. Ashwani Sharma, Advocate for the complainant.
Sh. J.D. Garg, Advocate for opposite parties no.1 and 2.
Sh. A.S. Kalra, Advocate for opposite party no.3.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amended as under Section 35 of the C.P. Act, 2019) against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that op no.2 used to organize medical camps in village Goriwala at the hospital of Dr. Jagdish. The complainant had some pain in his hip joint and thus, he got himself checked-up from op no.2 in this camp who after examining the complainant told that his hip joint has eroded and same requires replacement and further assured the complainant that after replacement, pain will vanish. The op no.2 further told the complainant that he can conduct this operation at his hospital at Sirsa and complainant will have to get himself admitted there. That thereafter, the complainant consulted the matter with his family members and after consultation, the complainant got himself admitted in the hospital of ops on 18.10.2016 for hip replacement operation. On 19.10.2016, the op no.2 conducted operation of complainant for replacement of hip joint and he remained admitted in the hospital of ops up to 28.10.2016. The ops charged a sum of Rs.95,050/- as operation fee and cost of medicines etc. vide bill no.196 dated 28.10.2016. The complainant also incurred expenses on transportation, special diet etc. and op no.2 had prescribed more medicines to the complainant upon which complainant incurred another sum of Rs.50,000/- and thus, a sum of Rs. two lacs was incurred by complainant on his treatment. It is further averred that at the time of discharge from hospital, the op no.2 had told the complainant that after one month, he will be normal and will walk normally. The complainant took medicines as prescribed by ops, but he did not get any relief from the pain in his hip joint and moreover, wound of operation did not heal, rather same developed pus. The complainant reported this fact to op no.2, where upon, op no.2 prescribed more medicines to the complainant which were taken by him but even then the wound did not heal. It is further averred that when complainant did not get any relief of his ailment, then he raised a protest with op no.2, where upon, op no.2 very cruelly and rudely stated that he has replaced the hip joint and that he had not given guarantee for curing the pus. The op no.2 prescribed more medicines to the complainant, which he took up to January, 2017 but there was no relief to the complainant from pus and also from pain in his hip joint. It is further averred that when he could not get any relief, then he visited Santokba Durlabhji Memorial Hospital cum Medical Research Institute, Jaipur and got himself medically checked up. The doctor of said hospital after his examination told that said hip joint replacement operation of complainant has not been conducted properly and accurately and that due to this reason, pus has developed there and is not curing. The doctor advised that first of all, the complainant requires treatment for elimination of pus and then his hip joint will be again replaced by way of surgical operation and estimated the cost of said operation to the tune of Rs. three lacs and it was also stated that recovery may take two years time. It is further averred that on coming to know of such fact he was highly surprised and shocked and he felt himself cheated at the hands of ops. Then the complainant in the company of few respectable persons of village visited the hospital of ops and lodged a protest for conducting his operation negligently and not properly treating him, where upon op no.2 felt offended and openly stated that he has done what he wanted and now they can do what they want and after insulting them the op no.2 ousted them from the hospital. That complainant is a poor person and he had incurred the aforesaid amount on his treatment after borrowing the same from his relatives and friends and now he requires another sum of Rs.three lacs to incur on his treatment and he is unable to bear the same. The op no.2 has conducted the said surgical operation upon the complainant in utmost negligent manner and thereby has put the life of complainant in jeopardy and said operation has rendered the complainant a permanent disabled person and he is unable to do any work, which he was doing prior to this operation. The complainant has also lost his source of income and now he is unable to bear the expenses of further operation, medicines etc. and he would not be able to enjoy the pleasures of life anymore in his future life. The complainant experiences constant pain in the said leg, due to which he cannot walk and sit properly and even cannot get sound sleeps. It is further averred that constant pain has further caused a severe impact on the memory of complainant and most of time, he remains in irritate mood and it has caused depression, dejection and dismay to the complainant. The ops have played with the life of complainant just for the sake of extracting money from complainant. That complainant approached the ops and requested them to pay and refund the aforesaid amounts alongwith compensation but they did not pay any heed to the same. The complainant also moved applications to the Higher Authorities as well as to the Health Minister, Haryana, but no action was taken. Hence, this complaint.
2. On notice, opposite parties appeared. Ops no.1 and 2 filed written version taking certain preliminary objections that complaint is wholly misconceived, groundless, frivolous without any justified reason/ cause against ops no.1 and 2 and that no specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by complainant against ops no.1 and 2 and that complaint is bad for non arraignment and mis arraignment of parties. It is further submitted that op is a well qualified and a reputed doctor with substantial good will and experience of long standing successful medical practice and this complaint is full of concocted facts, defamatory language, derogatory words, spirit and tenure. On merits, it is submitted that op no.2 used to visit in village Goriwala every Sunday. Patient Ved Parkash resident of that village came to OPD at Dr. Jagdish hospital with complaint of left hip pain. He was already having x-rays of the affected joint and asked for hip replacement directly. He must have consulted other doctors also as he was having MRI of left hip. Investigations clearly showed the damaged hip. He was advised surgery for THR at op hospital at Sirsa. No guarantee/ warrantee or any assurance was given by the ops. It is further submitted that for the satisfaction of patient, op doctor also advised him to talk to op’s other previous operated patient before he decides for surgery. Patient party talked with one of old operated patient Mr. Sultan from Sardarpura Rajasthan. After full satisfaction and talking with his family members, he came to op’s hospital for surgery on 18.10.2016. Before admitting him, op requested patient to stop alcohol completely if he wants to be fine after surgery. After taking proper consent and investigations, he was operated on 19.10.2016 at 8.00 a.m. Surgery was successful and he was weight bearing and walking without pain on next day. Patient was very happy with the results. He was discharged on 28.10.2016 and after stitch removal he was fully satisfied. Patient spent money for getting treatment of his own hip disease, which was not produced by ops. After discharge, patient came for follow up on 7.11.2016, medicines were prescribed and patient was advised to follow up after 15 days. It is further submitted that after that patient visited on 23.11.2016, antibiotics were stopped and patient was advised to follow up after one month. On 23.12.2016, in follow up visit, patient was happy, there were no issues then also multivitamin were given as he was alcoholic. Patient was advised for follow up after one month but he did not come for next 40 days. During this whole period, he was walking with no pain and complaints and no trouble at all. Patient directly came on 13.2.2017 with complaint of little pain for which he was given medicines and was advised follow up after one month. Patient came for follow up 10 days late on 22.3.2017 with complaint of sore throat for which antibiotic was given and was advised to follow up after 5 days. Thereafter, patient did not come for three weeks. He directly came on 14.4.2017 with complaint of superficial redness at stitch site. Investigations were done and antibiotics given with follow up after five days. Patient again came for follow up one week late on 26.4.2017 and during this time he was taking treatment from local village doctor for superficial infection, dressing etc. After this patient lost follow up and never turned up, which is the sole negligence of patient. It is further submitted that everything ops no.1 and 2 have done was done diligently, prudently with utmost due care and caution in treating the said patient. On merits, while reiterating the pleas of preliminary objections and denying the contents of complaint, it is also submitted that complainant is unnecessarily harassing the ops to extract money from them. Before approaching the Forum, complainant has already moved two complaints against ops before CM Window. For the first complaint, doctors of medical board of Civil Hospital dismissed the complaint since they did not find any negligence on the part of ops. For another complaint, a neutral authority, Mr. Rakesh Wats also did not find any negligence on the part of ops. He also advised patient to get treatment in Civil Hospital free of cost, but complainant again did not follow the advice of authority and went for doctor shopping. With these averments, dismissal of complaint has been prayed for.
3. Op no.3 insurance company on being impleaded on the application of ops no.1 and 2 on notice appeared and filed written version taking certain preliminary objections that complaint is not maintainable as matter has been enquired by the Health Authorities after receipt of complaint from complainant through C.M. Window, as pleaded by op doctor, so complainant has no sufficient material with him to reflect any negligence or deficiency on the part of op doctor, rather op no.2 doctor seems to be exonerated from the charges, but complainant has concealed true and material information from this Forum about conclusion/ result of his complaint moved against op doctor only in order to fetch compensation. That indemnification is governed by the term and conditions of insurance policy of the contract of insurance agreed in between insurance company and doctor and in this case there is willful and deliberate violation of term and conditions of the policy on the part of op no.2 as he failed to intimate answering op about receipt of summons with the allegation of careless, negligence and breach of trust, due to which answering op has been deprived with the early right of investigation into the matter, hence answering op is not liable to indemnify the insured (even in case any liability is fastened upon the op no.2 doctor). That op no.2 doctor be directed to produce on record valid and effective degree, licence for practice in the field, for which he was practicing, as it is one of the requirement of the insurance norms, policy. That without admitting any liability and negligence on the part of op no.2, it is submitted that from bare perusal of the record, it seems to be a case of no evidence or expert evidence against op no.2 for acting without due diligence, reasonable degree of care, skill etc., as according to own version of complainant, op no.2 doctor is Surgeon, specialist in the matter, for which complainant was operated upon, hence in absence of medical evidence, opinion of expert favouring and supporting the contention of complainant, op no.2 cannot be held liable for any negligence, deficient act. However, pleadings by way of written version filed by op no.2 are adopted. That as per law laid down by the courts “doctor is not a God and ensure the best treatment according to his knowledge, skill and render the services to the patient to his best” and doctor undertake to treat and not to cure. There is not even a single document, opinion of expert, higher institution giving any kind of inference, reference that doctor/ op no.2 insured with answering op opted wrong course of action while attending, treating and operating the complainant and as per law laid by the Hon’ble Apex Court and Hon’ble National Commission funds in the hands of insurance company are the public fund and same cannot be ordered to be given merely on the oral assumption or presumption or on the basis of pleadings, on account of sympathy, without any proof of negligence on the part of doctors, who treated the patient. It is also submitted that answering op has come to know about filing of present complaint only in the month of May, 2019, when answering op received the summons, hence for the delay in reporting any case against insured, answering op should not be burdened with any liability on account of interest for the pre-appearance period, if any is ordered to be paid by the Forum and only op no.2 should be burdened with same, as per term and conditions of policy. On merits, the plea taken in the preliminary objections are reiterated, contents of complaint are denied and prayed for dismissal of complaint.
4. The parties then led their respective evidence.
5. Complainant tendered in evidence his affidavit Ex.CW1, copy of receipt No.196 dated 28.10.2016 of the amount of Rs.95,050/- of ops no.1 and 2 Ex. C1, copy of prescription slip Ex.C2, copy of report Ex.C3, copy of laboratory test report/ investigation Ex.C4, copy of laboratory report Ex.C5, copy of declaration and consent Ex.C6, copy of prescription slip of hospital of Dr. Sanjay Prakash of Agra Ex.C7, copy of scan report of Shanti Bed Imaging Research Centre, Agra Ex.C8, copies of reports of Dhawan Diagnostic Pathology, Agra as Ex.C9 to Ex.C12, copy of prescription slip of Santokba Durlabhji Memorial Hospital, Jaipur Ex.C13, copy of prescription slip of SMS Medical College & Hospital Jaipur Ex.C14, copy of prescription slip of Arora Orthopaedic Hospital, Hisar Ex.C15, copy of receipt of the amount of Rs.200/- of Arora Orthopaedic Hospital, Hisar as Ex.C16, copy of prescription slip of Chawla Nursing Home, Hisar as Ex.C17, copy of receipt of the amount of Rs.300/- of Chawla Nursing Home, Hisar Ex.C18, copy of adhar card Ex.C19, copies of prescription slips of Karwasra Bone & Joint Hospital, Mandi Dabwali Ex.C20 to Ex.C22.
6. On the other hand, op no.3 has tendered in evidence affidavit of Sh. S.K. Malhotra, Divisional Manager as Ex.R1, copy of policy schedule with indemnity cover Ex.R2.
7.Ops no.1 and 2 have tendered in evidence affidavit of Dr. Saurabh Walia as Ex.R3, copy of policy schedule Ex.R4, copy of degree of MMBS Ex.R5, copy of certificate of registration Ex.R6, copy of degree of Master of Surgery Ex.R7 and copies of medical record of complainant as Ex.R8 to Ex.R12 and copy of relevant page of literature Ex.R13.
8.We have heard learned counsel for the parties and have gone through the case file carefully.
9.Learned counsel for complainant has contended that complainant had some pain in his hip joint. The op no.2 doctor used to organize medical camps in village Goriwala at the hospital of one Dr. Jagdish. The complainant got himself checked-up from op no.2 in the said camp and op no.2 doctor after examining the complainant told him that his hip joint has eroded and same requires replacement and also assured him that after replacement, he will be alright and there will be no pain in his hip joint. The op no.2 further told him that he can got conducted this operation at his hospital at Sirsa. Thereafter, complainant after consultation with his family members, was admitted in the hospital of ops on 18.10.2016 for said surgery. On 19.10.2016, op no.2 doctor conducted operation for replacement of his hip joint and complainant remained admitted in the hospital of ops no.1 and 2 up to 28.10.2016. The ops no.1 and 2 charged an amount of Rs.95,050/- as operation fee, cost of medicines etc. from the complainant. The op no.2 had also prescribed more medicines to the complainant and thus, complainant spent an amount of Rs. two lacs on his treatment including expenses of transportation, special diet etc.
10.Learned counsel for complainant has further argued that even at the time of discharge from hospital, op no.2 doctor assured him that after one month, he will be normal and will be walking normally and complainant took medicines as prescribed by ops, but however, he did not get any relief from the pain of hip joint. The wound of operation did not heal and developed pus. The complainant visited the hospital of ops no.1 and 2 and op no.2 prescribed more medicines to him but even then wound did not heal after taking of the medicines. That when complainant again visited to op no.2 and made complaint for not curing of pus in the wound, the op no.2 while misbehaving and reprimanding him clearly stated that he has replaced hip joint and that he had not given any guarantee for curing the pus. The op no.2 prescribed more medicines to the complainant, which he consumed up to January, 2017, but he could not get any relief from pus and pain. He has further contended that complainant visited Santokhba Durlabhji Memorial Hospital cum Medical Research Institute, Jaipur and got himself medically checked up and doctor of said hospital after examination of complainant told him that said operation has not been conducted properly and accurately due to which pus has been developed and is not curing and he also advised that firstly he requires treatment for elimination of pus and then his hip joint will be again replaced by another surgical operation and estimated the cost of said operation to the tune of Rs. three lacs and also stated that recovery may take two years time. He has further contended that complainant is unable to bear such huge amount being a poor person but in order to get relief since then he has been taking rounds to the various hospitals at different places and also spending money on unnecessary treatment. The said operation conducted by op no.2 doctor has rendered the complainant a permanent disabled person and he is unable to do any work, which he used to do prior to the operation. The complainant has also lost his source of income and most of time he suffers from constant pain in the said leg and cannot walk and even cannot sit properly and cannot get sound sleeps and therefore, prayed for acceptance of complaint.
11.On the other hand, learned counsel for ops no.1 and 2 while reiterating the written version has contended that op no.2 doctor is well reputed doctor in the Sirsa City and has vast experience of treating patients who suffer from orthopaedic problems. The op no.2 doctor is having degree of Master of Surgeon (M.S.) in Orthopaedics and is having well equipped hospital at Sirsa and he has conducted successful surgeries of hip replacement of several patients. He has further contended that after taking proper consent and conducting various tests of patient Ved Parkash, he was operated on 19.10.2016 and surgery was successful. On 28.10.2016 he was discharged with his full satisfaction and he was advised for follow up treatment and at that time he was not having any kind of post operative problem. Everything which was done by op no.2 doctor was done diligently, prudently with utmost due care and caution and there is no negligence or deficiency in service on the part of ops no.1 and 2 rather patient himself is negligent in taking proper treatment. Moreover, no guarantee, warrantee or any type of assurance was given by the op no.2 doctor to the patient Ved Parkash. He has further contended that even after successful surgery of hip replacement postoperative infection is possible even after passing of few months as per medical literature in this regard. The complainant has also failed to prove on record any medical negligence of op no.2 doctor through any authentic expert opinion and thus, prayed for dismissal of the complaint.
12. Learned counsel for op no.3 also while reiterating the written version filed on behalf of op no.3 prayed for dismissal of complaint.
13. We have considered the rival contentions of the parties.
14. Admittedly, the complainant who was having pain in his left hip got himself checked from op no.2 doctor in a medical camp organized in the village of complainant i.e. Goriwala at the hospital of one Dr. Jagdish. There is also no dispute that on examination of complainant, op no.2 doctor told him that his hip joint has eroded and same requires replacement and also assured that after replacement, said pain in the hip joint will be cured. The op no.2 doctor also suggested the complainant to firstly talk with other previously operated patient of op no.2 before he decides for surgery and after conversation with one of the patients of op no.2 doctor namely Mr. Sultan from Sardarpura, Rajasthan who was also operated for the replacement of hip joint and after satisfying himself, the complainant decided for undergoing said surgery of replacement of hip joint from op no.2 doctor. Accordingly, op no.2 got conducted some tests/ investigations of the complainant i.e. blood tests, sugar tests etc. on 18.10.2016 vide test reports Ex. C4 and Ex.C5 and after seeing the said test/ investigation reports of the complainant to be normal, the complainant was operated for replacement of hip on 19.10.2016 and was discharged on 28.10.2016. The ops no.1 and 2 charged an amount of Rs.95,050/- from the complainant as operation fee and cost of medicines etc. which fact is proved from copy of receipt No.195 dated 28.10.2016. The case of the complainant is that even after replacement of hip joint, the complainant did not get any relief from the pain in his hip joint and wound also did not heal, whereas the op no.2 assured him that after one month, he will be normal and will be walking normally. According to the complainant, after operation the complainant took several rounds to the ops with regard to said pain in the hip joint and also developing of pus and was taking medicines as prescribed by op no.2 from time to time and continued to consume medicines prescribed by op no.2 up to January, 2017 but the problem remained as it is and op no.2 in a rude manner stated that he has replaced the hip joint and had not given any guarantee for curing the pus.
15. On the other hand, it is the plea of ops no.1 and 2, that after taking proper consent and investigation, complainant was operated on 19.10.2016. Surgery was successful and he was weight bearing and walking without pain on next day. Patient was very happy with the results. Patient was discharged on 28.10.2016 after stitch removal and he was fully satisfied. The ops no.1 and 2 have also admitted that after discharge, patient came for follow up on 7.11.2016 and at that time medicines were prescribed and patient was advised t o follow up after 15 days. After that patient visited the hospital on 23.11.2016 and antibiotics were stopped and patient was advised to follow up after one month. On 23.12.2016, in follow up visit, patient was happy, though there were no issues but then also multivitamin were given as he was alcoholic. Patient was advised for follow up after one month but he did not come for next 40 days. During this whole period, he was walking with no pain and complaints and with no trouble at all. The ops no.1 and 2 have further asserted that patient directly came on 13.2.2017 with complaint of little pain for which he was given medicines and was advised follow up after one month. Then patient came for follow up 10 days late on 22.3.2017 with complaint of sore throat for which antibiotic was given and was advised to follow up after five days. Thereafter, patient did not come for three weeks. He directly came on 14.4.2017, with complaint of superficial redness at stitch site. Investigations were done and antibiotics were given with advise of follow up after five days. They have further asserted that patient again came for follow up one week late on 26.4.2017 and during this time he was taking treatment from local village doctor for superficial infection, dressing etc and after that patient lost to follow up and never turned up, which is the sole negligence of patient and in the last, the ops no.1 and 2 have asserted that everything which the ops done was done diligently, prudently with utmost due care and caution in treating the patient and there was no negligence at least from their side.
16. From the above said written version of ops no.1 and 2 themselves, it is clear that patient was taking rounds to the ops no.1 and 2 up to 26.4.2017 i.e. for a period of about six months after the operation of hip joint as according to ops no.1 and 2 themselves, there was superficial redness at stitch site i.e. infection and he was also having pain in the hip joint. By that time also i.e. up to 26.4.2017 after expiry of about six months of the said operation, dressing on the infected stitch site was being applied on the person of complainant which fact is proved from the version of ops no.1 and 2 itself. However, as there was no relief in the pain in the hip joint and infection for such a long time after the operation, the complainant having no other option also visited several hospitals at different places i.e. Jaipur, Agra, Hisar and Mandi Dabwali as is evident from prescriptions slips placed on record by complainant as Ex.C13 to Ex.C15 and Ex.C20 to Ex.C22. Ex.C13 is the prescription slip of Santokba Durlabhji Memorial Hospital cum Medical Research Institute, Jaipur and in the said prescription slip Ex.C13 which is of dated 16.6.2017, the complainant Ved Parkash complained to the Doctor of said hospital about pus discharge from left hip from two months and history is mentioned as THR 7 months back and the doctor prescribed for daily dressing and also prescribed medicines for seven days and asked him to come again for review on 21.6.2017 with report. Then complainant visited SMS Medical College & Hospital, Jaipur on 10.7.2017 and the complainant has placed on record copy of prescription slip in this regard as Ex.C14, in which the problem of Infected THR (Total Hip Replacement) is mentioned and the doctor of that hospital also prescribed medicines to the complainant. However, as complainant did not get any relief from infection of THR, the complainant visited to Arora Orthopaedic Hospital, Hisar on 18.9.2017, which is evident from copy of prescription slip Ex.C15 in which also the problem of Infected THR (L) is mentioned and the doctor of that hospital also prescribed medicines to the complainant. The complainant also sought opinion of Dr. Praveen Chawla of Chawla Nursing Home, Hisar on 18.9.2017 and complainant has placed on record copy of prescription slip of that hospital as Ex.C17 in which problem of Infected THR is mentioned. The doctor of that hospital also advised X-ray (L) Hip and then advised for removal of compressed. From the said prescription slip, it is evident that on 18.9.2017 Dr. Praveen Chawla of Chawla Nursing Home, Hisar advised the complainant surgery for second time for removal of compression from the hip joint. Then on 18.11.2018, the complainant visited Karwasra Bone & Joint Hospital, Mandi Dabwali and complainant has placed on record copy of prescription slip of that hospital as Ex.C22 and from this prescription slip Ex.C22, it is evident that implant removal was done on 20.11.2018 by the doctor of that hospital and complainant continued to visit that hospital after removal of implant and doctor prescribed medicines to the complainant for long time. From the prescription slips of Karwasra Bone and Joint Hospital, Mandi Dabwali placed on record (Ex.C20 to Ex.C22), it is evident that complainant after removal of implant on 20.11.2018 visited the said hospital on subsequent dates i.e. on 23.11.2018, 26.11.2018, 29.11.2018, 8.12.2018, 18.12.2018, 31.12.2018, 8.1.2019, 28.1.2019, 9.2.2019, 22.3.2019 and on 9.4.2019 and each time the doctor prescribed medicines to the complainant. From the said visits of the complainant to the Karwasra Hospital, Mandi Dabwali on above said dates besides his visits to various hospitals of Jaipur, Agra and Hisar and lastly to the hospital situated at Mandi Dabwali, it is evident that complainant has suffered much pain and sufferings and also financial loss due to wrong surgery of left hip/ joint replacement of complainant by op no.2 doctor in the hospital of op no.1. The complainant who is a simple villager and is resident of village Goriwala, District Sirsa has to visit hospitals situated at far distance like Jaipur, Agra, Hisar for curing the infection of hip after the surgery done by op no.2 doctor and ultimately the implant inserted by op no.2 doctor in the hip of complainant was removed by Dr. Parmod Karwasra of Karwasra Bone & Joint Hospital, Mandi Dabwali and this all happened due to negligence of op no.2 doctor. Further, the complainant has also placed on record copy of Immunology report of Dhawan Diagnostic Pathology, Agra as Ex.C9 and the said report is reproduced in verbatim as under:-
C- Reactive Protein (CRP)
PATIENT VALUE : 4.8 mg/L
REFERENCE RANGE : < OR = 10.0 mg/L
CLINICAL SIGNIFANCE
C- reactive protein (CRP) is an acute phase protein synthesized in the liver. Its rate of synthesis increases within hours of acute injury or the inflammation and may reach as high as 20 times the normal levels. A rapid wall of CRP indicates recovery. The degree of elevation of CRP level directly reflects the mass or activity of inflamed tissue. And its ability to fall to normal levels on resolution of the condition renders quantified. CRP values to be a good indicator to allow selection of appropriate anti-inflammatory therapy in several rheumatic diseases, which are, clinically difficult to assess. Apart from indicating inflammatory disorders, CRP levels helps in differential diagnosis, in the management of neonatal septicemia and meningitis where standard microbiological Investigations are difficult. CRP levels rise invariable after major surgery, but fall to normal within 7-10 days. Absence of this fall is indicative of inflammatory postoperative complications. Serum CRP cononcentration provides useful information in patient with myocardial infarction there being an excellent correlation between peak levels of CRP and creatine phosphokinase.
- From the above said report of Dhawan Diagnostic Pathology, Agra Ex.C9, it is evident that the CRP (C-reactive protein) level of complainant risen invariably after surgery conducted by op no.2 doctor which should have fallen to normal within 7-10 days and same did not fall down due to inflammatory postoperative complications. The ops no.1 and 2 have not specified in their written version or in the affidavit Ex.R3 that what type of procedure of surgery, the op no.1 doctor adopted for hip replacement of the complainant. They have also failed to disclose that what type of implant was inserted in the hip of complainant and also failed to disclose that procedure adopted by op no.2 doctor in the hospital of op no.1 and implant used by them were according to standard medical protocol. The ops no.1 and 2 have taken defence plea that before approaching this Forum (now Commission) complainant has also taken other recourses of filing complaints at CM Window for twice and for the first complaint, doctors of Medical Board of Civil Hospital dismissed the complaint since they did not find any negligence on the part of ops no.1 and 2. They have further asserted that for another complaint, a neutral authority Mr. Rakesh Wats also did not find any negligence on the part of ops. But however, we have no substance in the said defence plea of ops no.1 and 2, as no such reports of above said authorities i.e. Medical Board of Civil Hospital or of said neutral authority Mr. Rakesh Wats exonerating the ops no.1 and 2 have been placed on record. The another plea of ops no.1 and 2 that complainant has not placed on record any expert opinion regarding medical negligence of op no.2 doctor and that complainant has not moved any application seeking expert opinion has also no substance because the above detailed long treatment taken by the complainant after surgery of hip replacement for a period of about two years and six months from the month of November, 2016 to April, 2019 at the various hospitals situated at long distance from the residence of complainant and ultimately removal of implant from the surgery site of complainant clearly establishes the medical negligence on the part of op no.2 doctor. Further more, ops no.1 and 2 were also within their legal right to move an application seeking expert opinion of the medical board which was to be constituted at their request but they failed to move any application in this regard. Moreover, the Hon’ble Supreme Court of India in case titled as Maharaja Agrasen Hospital & Ors. vs. Master Rishabh Sharma & Ors. 2020 (2) Apex Court Judgments 578 has held that “Medical negligence- Expert opinion- Court is not bound by the evidence of an expert, which is advisory in nature- Court must derive its own conclusions after carefully sifting through the medical records, and whether the standard protocol was followed in the treatment of the patient- Duty of an expert witness is to furnish Court with the necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the Court to form an independent opinion by the application of this criteria to the facts proved by the evidence of the case.” So, in view of the above said law laid down by the Hon’ble Supreme Court and in view of long history of treatment of complainant resulting from negligence of op no.2 doctor, we found no substance in the plea of ops no.1 and 2.
18.Learned counsel for ops no.1 and 2 has contended that there are chances of postoperative infection after hip replacement and has also relied upon a page of some literature (Ex.R13) but we do not agree with the submission of ops no.1 and 2 in this regard because firstly ops no.1 and 2 have failed to disclose about the standard medical protocol adopted by them in the surgery of complainant and have also failed to disclose that they have used superior quality of implants in the surgery of complainant and secondly after surgery of hip replacement conducted by op no.2 doctor, the complainant has taken long treatment for infection and ultimately has to remove the implant used by op no.2 doctor. So, we are of the considered view that op no.2 doctor has used inferior quality of implant for the hip replacement of the complainant due to which he developed severe infection in the surgery site.
19.The next point is with regard to the quantum of compensation to be awarded to the complainant. The complainant has alleged that he spent an amount of Rs.two lacs including payment of Rs.95,050/- to the ops no.1 and 2 for above said surgery and the treatment up to 28.10.2016 including transportation, special diet and medicines etc. prescribed by op no.2 doctor. The complainant has also placed on file copy of bill of Rs.95,050/- of hospital of ops no.1 and 2 as Ex.C1. Further, complainant has alleged that an amount of Rs.three lacs was required by the complainant for second surgery due to negligence of op no.2 doctor. As already discussed, the complainant has to visit various hospitals situated at long distance for treatment and also got conducted second surgery for removal of implant and has incurred expenses on transportation and medicines. In these circumstances, we are of the considered opinion that complainant has spent huge amount on his treatment due to negligence of op no.2 doctor. The Hon’ble Supreme Court in case titled as State of Gujarath vs. Shantilal Mangaldas AIR 1969 SC 634 has held that “the compensation to be awarded is to be fair and reasonable.” It is also settled proposition of law that it is for the Consumer Commission to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge. In the present case, the complainant has taken long treatment after surgery done by op no.2 doctor in the hospital of op no.1 and has to suffer much financial loss as well as harassment and mental agony and has also remained idle without any work for long time, so in the given circumstances of the present case, we are of the considered opinion that an amount of Rs.8,00,000/- (Rs. eight lacs including refund of the amount of Rs.95,050/- charged by ops no.1 and 2 and Rs.four lacs spent on further treatment by complainant)to be paid to the complainant as compensation will be just and reasonable amount. The complainant is also entitled to compensation for harassment, mental agony and is also entitled to litigation expenses. It is also proved on record that op no.3 is insurer of ops no.1 and 2 hospital for indemnity value of Rs.5,00,000/- as is evident from copy of insurance policy Ex.R4 placed on record by ops no.1 and 2. So, the op no.3 is to indemnify ops no.1 and 2 to the extent of insured amount of Rs.5,00,000/-
20 In view of our above discussion, we allow the present complaint against opposite parties no.1 to 3 and direct the opposite parties no.1 & 2 to pay the amount of Rs. 8,00,000/- (Rs. eight lacs) as compensation to the complainants. The ops no.1 and 2 are also directed to pay an amount of Rs.25,000/- as compensation for harassment, mental agony and Rs.11,000/- as litigation expenses to the complainant. Initially, the ops no.1 and 2 will pay the said amount to the complainant and op no.3 will indemnify the ops no.1 and 2 as per terms and conditions of the insurance policy and liability of op no.3 to pay the amount will not exceed the insured amount as mentioned in the policy if the op no.3 has not indemnified the ops no.1 and 2 for any other case of medical negligence during the period of policy. The ops no.1 and 2 are directed to pay the above said amounts within a period of 45 days from the date of receipt of copy of this order, failing the ops no.1 and 2 will be liable to pay the above said amount of Rs.8,00,000/- alongwith interest @9% per annum from the date of filing of present complaint i.e. 13.4.2018 till actual realization. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Commission. President,
Dated:04.10.2021. Member District Consumer Disputes
Redressal Commission, Sirsa.
