Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 27.
Instituted on : 07.01.2016.
Decided on : 08.08.2019.
Smt. Meenakshi w/o Sh. Ranbir Singh r/o H.No.712/10 Ram Gopal colony, Rohtak.
………..Complainant.
Vs.
- University of Medical & Health Science through its Registrar.
- Director, Pt.B.D.S., PGIMS, Rohtak, University of Health, Science Rohtak.
- Medical Superintendent PGIMS, Rohtak.
- Doctor M.S.Grewan, Unit 2nd H.O.D., PGIMS, Rohtak.
- Doctor Nityasha Unit 2nd PGIMS Rohtak.
- Dr. Raju, PGIMS, Student, Unit 2nd PGIMS, Rohtak.
- State of Haryana through Collector Rohtak.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH.VED PAL, MEMBER.
DR. RENU CHAUDHARY, MEMBER.
Present: Ms. Kiran Shroran, Advocate for the complainant.
Sh.Yogender Dalal, Advocate for opposite party No.1 to 6.
Ms.Priya, ADA for opposite party No.7.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that there was some swelling(knot) in the right hand of the complainant. So she approached PGIMS Rohtak for her treatment on 30.01.2015 and the complainant was got treated by respondent no.5&6. After physical examination of the right hand and swelling in the hand, the respondent no.6 operated the complainant on 13.03.2015 without obtaining the consent of complainant. That complainant was not unconscious at the time of operation and continuously crying with pain because the respondent no.6 did not call the anesthesia expert and only apply the local anesthesia to the complainant at the time of operation. During the operation, the complainant felt that her hand was losing its working, then the complainant informed the respondent No.6 but the respondents no.6 assured the complainant that the hand shall start working properly after surgery. But after the operation, the right hand of the complainant did not work properly. The opposite party no.5 & 6 referred the complainant to orthopedic surgeon who advised the complainant for taking conservative treatment but after follow up and instructions of all doctors, the complainant could not get relief in her problem and now the wrist of the right hand of the complainant has fully dropped and it was not working properly. That complainant also went to Medanta Hospital Gurgaon on 07.04.2015 where the doctors have found that “overall combined ultrasound and MRI findings are suggestive of almost complete tear of radial nerve(sunder land IV) with an abnormal looking 2.5 cm segment of the radial nerve. The epineurium of the nerve cannot be clearly identified at this site with possibly intervening scaring/a few intake nerve fascicles”. Due to which, the hand of the complainant has been stopped working. That the said nerve of hand of complainant has been cut during her operation in PGIMS, Rohtak due to carelessness and negligence on the part of treating doctors. That complainant again contacted the opposite party No.5 & 6 and they opined to consult the Department of Burn & Plastic Surgery for second surgery and the success of the operation was only upto 10% to 15%. Now the complainant was not satisfied with the said opinion of the treating doctor, so she get treatment from Paras Hospital Delhi, who verbally take guarantee upto 60% to 70% and she get performed her second operation at Paras Hospital, Delhi. That upto till date, the complainant has spent more than Rs.150000/- on her treatment, medicines, tests etc. That respondent no.5 & 6 are negligent in performing their duties, due to which complainant has become handicapped and she has to suffer a huge mental, physical and economic loss and injury. That the operation performed by the respondent no.6 was only based on the direction of respondent No.5 because at the time of operation neither respondent no.5 nor any senior doctor was present in the operation theater and the respondent no.6 was the only 1st year MS, PG student, which was same as a MBBS and not have any sufficient experience of same kind of operation. That the act of opposite parties is illegal and amounts to deficiency in service. Hence all the opposite parties are responsible against the wrong surgery performed by the respondent no.6. Hence this complaint and it is prayed that opposite parties may kindly be directed to pay a sum of Rs.500000/- alongwith interest to the complainant.
2. On notice opposite parties appeared and filed their written reply submitting therein that there was some superficial swelling in the right arm of the complainant not in right hand, as mentioned in the complaint. She approached the answering opposite party on 30.01.2015 in OPD of Surgery, Unit-II. After complete clinical examination and necessary investigation, she was planned for excision biopsy in minor O.T. under local anesthesia. The patient was underwent through pre-operative investigation including ultra sonography and FNAC. She was operated by respondent no.6, second year surgery resident after explaining the procedure to the complainant verbally. The patient was explained verbally about the procedure and was taken up as per the complainant’s willingness. That all the necessary precautions were taken during surgery by respondent no.6. There was no inter-operation complication. The patient was given proper post operative care. Due and diligent care was given to the patient before, during and after the procedure. That the patient followed up in OPD on 17.03.2015 with the complaint of weakness in right hand. For this complaint, the patient was referred to the Orthopaedic OPD on that day. Her post operative NCV study of right radial nerve was found normal. Orthopaedic surgeon advised her conservative treatment. She followed in surgery OPD on 20.03.2015 with complaint of wrist drop, for this she was referred to Neurology for opinion, who advised Physiotherapy and no other intervention. Subsequently, her sutures were removed on 04.03.2015. On 27.03.2015 she was referred to occupational therapist for needful. Therefore, it is clear that none of the doctors of Surgery, Orthopaedic, Neurology or occupational therapy departments advised any second surgery. The patient followed up in OPD with some investigation done in Medanta Hospital, Gurgaon, which revealed complete treatment of right radial nerve. After going through the report of above investigations, opinion of Plastic Surgeon was taken regarding further management. The patient followed up on Plastic Surgery Department. She was admitted for doing the small procedure of surgery for the proper management of the problem. Proper investigations were conducted for the purpose. But she left the institute without information and permission of the treating doctors. Her LAMA case was sent by the Plastic Surgery department to the M.S. office for further necessary action. After that, she never turned up in the answering opposite party institute. Her problem can be managed by the Institute but she did not take proper follow up for her treatment. That there is no deficiency in service on the part of opposite parties. All the other contents of the complaint were stated to be wrong and denied and opposite parties prayed for dismissal of complaint with costs. Ld. ADA for the OP no.7 made a statement on dated 01.06.2016 that complainant has not sought any relief against the opposite party no.7. Therefore, no reply is made out by the opposite party No.7.
3. Both the parties led evidence in support of their case.
4. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, Ex.CW2/A, documents Ex.C1 to Ex.C36 and has closed her evidence on dated 13.09.2017. On the other hand, ld. counsel for the opposite party No.1 to 6 in their evidence has tendered affidavit Ex.RW1/A, document Ex.R2 to Ex.R6 and closed his evidence on dated 10.11.2017. However, ld. counsel for opposite party No.7 failed to conclude his evidence and evidence of opposite party no.7 was closed by the order dated 08.12.2017 of this Forum.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present complaint, it is not disputed that the complainant approached the answering opposite party on 30.01.2015 in OPD of Surgery, Unit-II for the treatment of swelling in her right forearm. It is admitted by the opposite parties that after complete clinical examination and necessary investigation, she was planned for excision biopsy in minor O.T. under local anesthesia and she was operated by respondent no.6, second year surgery resident. The patient was underwent through pre-operative investigation including ultra sonography and FNAC. The allegation of the complainant is that due to carelessness and negligence on the part of treating doctor, during the surgery, the radial nerve of the right arm of the complainant was badly ruptured or damaged by the respondent no.6 and due to this negligent act of the opposite party No.6, she had to face a major second surgery of her damaged right arm, which was performed by the doctors of Paras Hospital Gurugram. It is further alleged that the complete working power does not recover till date and now she has become permanently disable with her right hand. It is also alleged that no consent of the complainant was taken before the surgery. To prove her contention, complainant has placed on record Radiology report of Medanta Hospital as Ex.C1, copy of treatment record of Medanta Hospital Ex.C2 to Ex.C6, treatment record of Paras Hospital Ex.C7 to Ex.C14, treatment record of PGIMS, Rohtak Ex.C15 to Ex.C19. Ld. counsel for the complainant has placed reliance upon the ratio of law laid down in IV(2017)CPJ276(NC) titled as Vijender Kumar Sahal Vs. Dr.K.S.Verma, II(2016)CPJ639(NC) titled as Royapettah Government Hospital Vs. R.Lakshmi, 2016(3)CLT 394 titled as Suresh Chandra Mytle & Anr Vs. United India Insrance Co. Ltd. & Others, 2015(1)CLT490 titled as Dr. Dilip C. Shah Vs. Subashchandra & others.
7. On the other hand, contention of opposite parties is that there is no negligence on the part of opposite parties. Respondent no.6 was fully competent to do the operation. The patient was operated by respondent no.6 after explaining the procedure to the complainant verbally. Her post operative NCV study of right radial nerve was found normal. The complainant followed in surgery OPD on 20.03.2015 with complaint of wrist drop, for this, she was referred to Neurology for opinion who advised Physiotherapy and no other intervention. On 27.03.2015 she was referred in occupational therapist for needful. Therefore, it is clear that none of the doctors of Surgery, Orthopaedic, Neurology or occupational therapy departments advised any second surgery. To prove their contention, opposite parties have placed on record affidavit Ex.RW1/A of Dr. Nityasha i.e. respondent no.5, copy of documents Ex.R1 to Ex.R6, which includes some medical procedures, medical literature and copy of leave application of Dr. Nityasha.
8. After going through the file and hearing the parties, it is observed that no affidavit of the doctor i.e. opposite party No.6, who performed the surgery on 13.03.2015, has been placed on record to prove that whether he was competent to do the surgery independently or not and whether the disease of the complainant was lying under the Surgical procedures as mentioned in Ex.R1 because as per the pathology report of opposite parties Ex.C19, it was observed that: “FNAC smears from swelling right arm show fragments of fibroadipose tissue in a background of blood”. Moreover, the complainant was the patient of respondent no.5, who is a specialist in surgery and before the surgery, she was duly examined by respondent no.5 & 6 but at the time of surgery, neither the respondent no.5 nor any other senior doctor was present. Opposite parties have placed on record, affidavit of doctor Nityasha i.e. respondent no.5, who herself was on leave on the day of surgery of complainant. Hence it is not proved on file by the opposite parties that there was no intra-operative complication. On the other hand, complainant has placed on record copy of Radiology report of Medanta Global Health Pvt. Ltd. Ex.C1, as per which it is observed that: “overall combined ultrasound and MRI findings are suggestive of almost complete tear of radial nerve(sunder land IV) with an abnormal looking 2.5 cm segment of the radial nerve. The epineurium of the nerve cannot be clearly identified at this site with possibly intervening scaring/a few intake nerve fascicles”. Due to which, the complainant had to undergo second surgery at Paras Hospital Gurugram, as mentioned in Ex.C13. It is also observed that complainant moved an application before the Forum for expert opinion. On her application, a letter was sent to PGIMER, Chandigarh for constitution of board. As per report of medical board dated 04.03.2017, it is submitted by the board that : “Consent for the procedure and the report of ultrasound and FNAC are not available amongst the record provided to the board, as the records are only the outpatient records. For the consent, the records of the hospital may be referred to”. Thereafter, again documents were sent to the board and report of medical board dated 04.05.2017 was received in this Forum, as per which it is opined that due diligence has been followed in the procedure. But this report is also silent about the consent whereas it is mandatory to seek the consent of either patient or attendant on a prescribed performa before performing any surgery. But this procedure was not adopted by the opposite parties as no such document has been placed on record by the opposite parties. Thereafter, complainant moved an application for assessment of disability and the disability certificate was issued by office of the Civil Surgeon Rohtak, mentioning the disability of complainant as 7%.. But complainant was dissatisfied with the alleged disability certificate issued by the Civil Surgeon, Rohtak. So, she again moved an application for re-assessment of disability, which was allowed by this Forum and accordingly Director, PGIMER, Chandigarh was directed to issue the disability certificate after examining the complainant from the competent authority. Accordingly, a disability certificate was received from the Convener, Medical Disability Board, PGIMER, Chandigarh, as per which, her overall permanent physical/mental impairment is 21%. As such, it is observed that there is deficiency in service on the part of opposite parties, due to which, the complainant had suffered 21% permanent disability and is entitled for compensation.
9. In view of the above referred case law, which are fully applicable on the facts and circumstances of the case, complaint is allowed and it is directed that opposite party No.1 to 6 jointly & severally shall pay a lump-sum compensation of Rs.400000/-(Rupees four lacs only) on account of medical expenses, mental agony, harassment and litigation expenses to the complainant within one month from the date of decision, failing which, opposite parties shall be liable to pay interest @9% p.a. on the awarded amount from the date of decision.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
08.08.2019.
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Nagender Singh Kadian, President
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Ved Pal, Member
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Renu Chaudhary, Member.
