Chandigarh

DF-II

CC/148/2017

Richa Verma - Complainant(s)

Versus

Post Graduate Institute of Medical & Education Research - Opp.Party(s)

Devinder Singh Soundh Adv.

16 Oct 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	148 of 2017
Date  of  Institution	:	13.02.2017
Date   of   Decision	:	16.10.2019

 

 

 

 

Richa Verma wife of Sh.Nitish Sharma, aged 36 years, through SPA Smt.Indera Verma, resident of House NO.46-A, Street No.2, New Shakti Nagar, Bathinda, Punjab.       

 

             ……..Complainant

 

Versus

 

1]  Post Graduate Institute of Medical & Education Research, PGIMER, through its Director, Sector 12, Chandigarh.

 

2]  Professor Ashok Gupta, Head ENT Department, PGI Hospital, Sector 12, Chandigarh

 

………. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN        PRESIDENT

SMT.PRITI MALHOTRA    MEMBER

           

 

Argued By:       Sh.Pankaj Chandgothia, Adv. for complainant

                Sh.Gaurav Bhardwaj, Advocate for OPs.

 

 

PER PRITI MALHOTRA, MEMBER

 

                                The case of the complainant in brief is that she being suffering from moderate hearing loss in her ears, visited OP Institute and got herself tested vide report dated 28.4.2014 (Ann.C-3).  It is averred that as per the advice of OPs, she was operated upon to correct the hearing loss in left ear and it was represented to be a minor operation (Ann.C-4). It is also averred that the operation was claimed to be successful, but instead of any improvement, the complainant started feeling dizziness and vomiting after operation and when the matter was reported to OPs, it was told to be a temporary problem and convinced that she would be OK within a few days.

 

         It is submitted that after the operation, instead of any improvement, it resulted in more hearing loss as clear from reports dated 14.7.2014 (Ann.C-5).  It is also submitted that when the Opposite Parties were confronted about the further hearing loss to the complainant, they assured that it would be corrected by another minor operation.  The OPs tried to explain that the “Piston” of the ear may have fallen from its place, which is creating the problem and a minor operation was required to put it in place, which they conducted on 12.11.2014, but that too did not make any improvement and the still the further loss caused to the hearing ability of the complainant (Ann.C-6 & c-7). It is further submitted that inspite of repeated surgeries by the OPs, the complainant continued to suffer and the situation had become even worse than it was earlier and before the first surgery.   

         It is stated in the complaint that the vestibular system of the ear canal also has an important role to play in helping the body to maintain balance.  It is alleged that the ear fluid is important in this respect and during the first operation by the OPs, the ear fluid may have leaked and some damage must have been caused to the nerves therein. As a result, the complainant had severe episodes of dizziness and vomiting, soon thereafter. It is stated that to cover up their fault and make possible “repairs”, the OPs carried out another operation, but could not rectify their negligence committed earlier, as the ear fluid had been lost and the piston had been misplaced. It is also stated that on account of apparent negligence and deficiency of service on the part of Opposite Parties, the complainant has suffered mentally, physically and financially, as she became handicapped for life and there is little hope of her hearing recovery. Hence, this complaint has been filed. 

 

2]       The Opposite Parties have filed reply and while admitting the factual matrix of the case, stated that the complainant got PTA (Pure Tone Audiometry) on 14.2.2013, which shows approximately 45 DB mixed hearing loss at speech frequencies (Mixed Hearing Loss: Nerve involvement).  The PTA was repeated which shows only conductive hearing loss and is contradicted to Ann.C-1 & C-2.  It is stated that after more than one year, the PTA was repeated at PGI on 28.4.2014 showing 65 DB Mixed hearing loss at speech frequencies (Ann.C-3). The Two PTA shows that the complainant is having a progressive hearing loss, which has increased from 45 DB to 60 DB at the time of presentation to PGIMER, Chandigarh. It is denied that exploratomy tympanotomy is a minor operation.  It is denied that hearing has worsened after the surgery because as per the annexure on page 35 the complainant had improvement in hearing on the table as committed by the complainant during the surgery and the Transient Vertigo for two days happens in all cases following this operation and hence cannot be treated as complication.  It is submitted that as per operative notes, the complainant had improvement on the table.  It is also submitted that re-exploration confirmed that surgical procedure was good and the piston was in position; some granulations were seen in middle ear which could be because of reaction to Teflon (piston). It is further submitted that appropriate measures to treat were taken.  Denying all other allegations and pleading no deficiency in service, the OPs have prayed for dismissal of the complaint.

 

3]       Rejoinder has also been filed by the complainant thereby reiterating the assertions as made in the complaint and controverting that of the Opposite Parties in reply.

 

4]      Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the OPs and have also perused the entire record.

 

6]        The complainant vide present complaint, which has been filed by her, through her Power of Attorney holder, alleged medical negligence against the Opposite Parties.  It has been claimed that due to the negligent treatment of the Opposite Parties, she lost her hearing power of the left ear and had the bad impact of treatment on both of her ears.  It has also been alleged that the treating doctor has not followed the right course of treatment and hastily adopted the surgical procedure and also wrongly conducted the curative surgery for the second time, which resulted in the complete hearing loss.  It has also been claimed that the patient/complainant could have been put on hearing implants at the initial stage, which the Opposite Parties failed to suggest.

 

7]       It is pertinent to mention that this complaint has been filed beyond the period of limitation since the alleged surgery was got conducted in the year 2014 and the present complaint has been filed in the year 2017.  The complainant has also moved an application for condonation of delay stating that the complainant due to her pre-natal and post-natal stage, was not able to file the present complaint in proper time and also claimed that the complainant lost her hearing power in progression over the years after the wrong surgery conducted by the Opposite Parties and thus claim it as a recurring cause of action.

 

8]       It is apt to clear that the delay was condoned and thus, the OPs were called upon to put their stand by sending due notices. 

 

9]       In their reply, the Opposite Parties specifically denied any medical negligence on their part while treating the complainant. Describing the whole procedure adopted during the course of investigation and treatment, it is claimed that “the complainant got PTA on 14.2.2013, which shows approximately 45 DB mixed hearing loss at speech frequencies (Mixed Hearing Loss: Nerve involvement) (Annexure C-1).  The PTA was repeated which shows only conductive hearing loss and is contradicted to (Annexure C1), Annexure C2).  After more than one year, the PTA was repeated at PGI on 28.4.2014 showing 65 DB mixed hearing loss at speech frequencies (Annexure C3).  The two PTA shows that the complainant is having a progressive hearing loss which has increased from 45 DB to 60 DB at the time of presentation to PGIMER, Chandigarh.  It is also incorrect to say that exploratomy tympanotomy is a minor operation. It is incorrect that the hearing has worsened after the surgery because as per the annexure on page 35 the complainant had improvement in hearing on the table as committed by the complainant during the surgery.  Transient vertigo for two days happens in all cases following this operation and hence cannot be treated as complication.  It is further wrong that there was no hearing improvement after surgery.  As per operative notes, the complainant had improvement on the table as committed by the patient.  A detail records of after surgery has not been put on record.  Rather a relook procedure (revision explorating tympanotomy) was planned to look into it. The re-exploration confirmed that surgical procedure was good and the piston was in position. Some granulations were seen in middle ear which could be because of reaction to Teflon (Piston) Appropriate measures to treat were taken.”  

  

10]      Needfully, it is mentioned that the complainant during the pendency of the complaint, also moved an application on 1.11.2018 under Section 13 of The Consumer Protection Act, 1986 for getting Expert Medical Opinion.  With the intervention of the Forum and taking generous view, the matter was duly sent to The Director/Principal, Govt. Medical College & Hospital, Sector 32, Chandigarh with direction to constitute a Board of Specialized ENT doctors to examine the complainant with the record and submit a report to the effect that as to whether right treatment was given to her or not.  It is also directed that the Board shall also consider the allegations of the complainant alleged in the complaint as also in the application and only thereafter the Board shall submit a detailed report giving therein their opinion.  Accordingly, Expert Opinion/Report dated 12.12.2018 has been received from Govt. Medical College & Hospital, Sector 32, Chandigarh.  After going through the medical record on file as well the Expert opinion, it is gathered that there is even no murmuring indicating any negligence on the part of Opposite Parties while treating the complainant. 

 

11]      The relevant extract of the Expert Opinion, for the sake of convenience, is reproduced as under:-

 

         “No other records available.

          Going through the records, the members of the board are of the opinion that patient was suffering from Otosclerosis.  Exploratory tympanotomy was done and the surgical procedure of stapedotomy was performed on left ear.  The Teflon piston 0.6mm diameter and 3.25mm length was put.  The patient had vertigo in the post operative period and was managed conservatively.

Patient developed intermittent vertigo and sensorineural hearing loss (left side).  The revision surgery on the left ear in the form of exploration of middle ear was performed.  The piston was found to be in place and mobile, however, there were granulations in the posterior superior (PS) part.  The hearing assessment done subsequently, did not show any improvement in the hearing on the same side. 

It is submitted that Otosclerosis is a disease of middle ear in which foot plate of the stapes is fixed causing hearing loss.  It is usually, conductive in nature.  If the disease involves inner ear then patient may have mixed hearing loss (conductive +sensorineural) or sensorineural hearing loss.

The diagnosis is made after clinical examination and audiological assessment in the form of PTA and Impedance audiometry.  The treatment of this disease is either surgery i.e. Stapedotomy or Stapedectomy and if the patient is not willing for surgery, the hearing aid is advised. 

As per the literature, the incidence of sensorineural hearing loss after surgery of otosclerosis ranges from 0 to 11% (Ref.Scott Brown, Otorhinoloaryngology, head and neck surgery, vol.3, 7^th edition, page No.3475.

 

                   Reply of the questions are as follows:-

 

Sr.No.	Questions	Reply
a.	Was it not advisable to recommend use of Hearing Aid by the patient instead of performing surgery?	Once the diagnosis of the otosclerosis is made, the treatment is surgical procedure or hearing aid depending upon the type of hearing loss. Surgery is the treatment of choice but if the patient refuses surgery, then hearing aid is advised.
b.	Did the OP doctor exercise  standard care and caution while implanting the Piston?	Yes
c.	Why and how did the ear fluid in the left ear of the Complainant leak during the surgery.  Does Leakage of ear fluid during surgery not amount to negligence?	During the surgical procedure, after making the hole (fenestra) in the stapes foot plate, inner ear fluid leakage comes out in the middle ear, is a part of the procedure.  So, the leakage from the ear during surgical procedure does not amount to negligence.
d.	What was the necessity of operating a second time on the same ear?	As per the record, patient had intermittent vertigo.  The possible reasons for intermittent vertigo may be a perilymph fistula which can result from stapes surgery.  Re-exploration is required to assess and treat such condition.
e.	Did the OP Doctor perform the required pre-operative analysis on the patient and carry out all the tests before operating on the patient?	Yes
f.	Did the OP doctor take an informed consent form the patient before each of the Operation?	As per the record, doctor has taken informed consent for the first surgical procedure, whereas records were not available for the second surgery except the instructions for the surgery.

 

 

12]      The above Expert Opinion/Report dated 12.12.2018 reveals that the medical record has thoroughly been examined by the Committee of doctors comprising Dr.Arjun Dass, Chairman- Professor & Head, (Department of ENT, GMCH, Sector 32, Chandigarh), Dr.Surinder K.Singhal, Member (Associate Profession ENT Deptt. GMCH, Chandigarh) & Dr.Nitin Gupta, Member (Associate Professor, Department of ENT, Govt. Medical College & Hospital, Sector 32, Chandigarh), who also gave personal hearing to the complainant.  In that report, the course of procedure adopted during the treatment has specifically been mentioned in detail and after considering the averments of the complainant, it has been opined as under:-

‘the treatment given to Ms.Richa Verma is as per medical norms.  As per the diagnosis mentioned in the record, right treatment was given to Ms.Richa Verma.’

         The report so received in the Forum with the above opinion has been considered in light of the complaint filed by the complainant besides the record available and also keeping in view the objections filed by the counsel for the complainant qua medical opinion/Report filed.  As per the Expert Opinion, no negligence is attributed on the part of the Opposite Parties as they followed the approved course of treatment out of the two prescribed procedures suggested for the treatment of the ailment as suffered by the complainant, which in the layman language is of progressive degeneration of the hearing power.   

 

13]      Though, the complainant filed objections to the expert opinion, but failed to place on record any cogent evidence to prove otherwise to contradict the Expert Opinion/Report dated 12.12.2018, referred above, by any other authentic independent expert report or expert opinion.  The objections so raised are only based on surmises and conjectures.

 

14]      The medical literature appended with the objections to the expert opinion, are only extracts taken from the internet and thus have no authentic base. Neither any medical literature from any authentic source has been placed on record to negate the stand of the Opposite Parties nor any cogent evidence to contradict the medical opinion/expert report has been brought on record by the complainant. The so called internet-information placed on record by the complainant nowhere specify that the complainant has been given wrong treatment for her hearing ailment.  Rather, if for a while we rely on the so called medical literature placed on record by the complainant, even then, no negligence, as alleged, can be attributed on the part of OPs, as in that literature too there are two courses suggested for the treatment of the ailment suffered by the complainant and the OPs adopted one out of the two i.e. surgical treatment, rather than suggesting for any hearing aid.  It is added that in order to prove medical negligence, it is the bounden duty of the complainant to establish his/her case by authentic evidence and to prove negligence in performance of duty of care on the part of the doctor concerned to the hilt.  There is also no allegation that the Opposite Parties were not competent to provide the treatment. 

15]      It is pertinent to mention here that when a patient visits to a doctor for treatment of any disease, then it is the prerogative of the doctor itself to choose the best treatment for his patient after clinical examination and also considering the reports available. 

16]      As held by the Hon’ble Supreme Court of India in AIR 1969 SC 128 – Dr.Laxman Balkrishana vs Dr.Trimbak, the doctor is not liable for negligence because someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way.   

         The Hon’ble Supreme Court in Kusum Sharma & others Vs. Batra Hospital & Medical Research Centre & other 2010(2)CLT 282 held:-

‘Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability with due care and caution’.

         In Martin F.D.’Souza Vs. Mohd. Ishfaq, (1) 2009 CPJ 32 (SC), it was held that sometimes despite the best efforts and treatment, the doctor fails, that does not mean that the doctor/surgeon must be held to be guilty of medical negligence.  It was further held that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing the reasonable course of treatment in preference to another.  

         The Hon’ble National Commission in case of Manteswar vs. Dr. Sumit Banerjee & anr. and Megha Eye Centre 2016(3) Law Herald (SC) 2296 held as under:-

“ No cure is not a negligence- The doctor should not be punished for, if anything goes wrong- It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish- Things have gone wrong and, therefore, somebody must be found to answer for it- A professional deserves total protection.”  

 

         The duties performed by doctors are sacrosanct and as such cannot be condemned on misconceived facts and notions.

 

17]      Taking into consideration the entire facts & circumstances of the case and discussion, as made in the preceding paragraphs, we are of the opinion that the complainant has miserably failed to establish her case.  Therefore, the present complaint is dismissed being devoid of any merit. 

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

16^th October, 2019                           

                                                                             Sd/-             (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

                                                                    (PRITI MALHOTRA)

MEMBER