| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 273 of 29-07-2015 Decided on : 03-07-2019 Subash Chander aged about 64 years S/o Banwari Lal, R/o H. No. 31186, Gali No. 12, Paras Ram Nagar, Bathinda. …... Complainant Versus Pragma Hospital, Bhatti Road, Bathinda 151001, through its Owner/ Incharge/Director/Manager Dr.Gursewak Singh Gill, Pragma Hospital, Bhatti Road, Bathinda 151001. Redical Health Technologies, SCO 138, FF, Sector 24-D, Chandigarh 160023 through its Owner/Manager/Auth. Signatory United India Insurance Co. Ltd., 42-C, 3rd Floor, Moolchand Commercial Complex, New Delhi, through its Manager.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986. Quorum : Sh. M.P.Singh Pahwa, President Smt. Manisha Member Present : For the complainant : Sh. Naresh Garg, Advocate. For the opposite parties : Sh. Lalit Garg, Advocate, for OP No. 1 & 2. OP No. 3 already rejected. Sh. Sunder Gupta, Advocate, for OP No. 4. O R D E R M. P. Singh Pahwa, President Subash Chander, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Pragma Hospital and others (here-in-after referred to as 'opposite parties'). Originally, the complaint was filed against opposite parties No. 1 to 3 and opposite party No. 4 was subsequently pleaded vide order dated 21-9-2015. It is pleaded in the complaint that on 25-8-2014, complainant suddenly fallen ill. He was immediately admitted with Dr. Mohinder Singh. He referred the complainant with opposite parties No. l & 2. Thereafter complainant was admitted in hospital (opposite party No.1) on 25-8-2014. The opposite party No. 2 is running the hospital (opposite party No. 1). On 26-8-2014, opposite parties No.1 & 2 inserted Pace Maker PPI (St. Jude Medical VVI Pacemaker 5056) on the right side of the chest of the complainant. This Pacemaker was supplied by opposite party No. 3 to opposite parties No.1 & 2 directly along with isoflex Lead-1948/58 & Peel Away Sheath-7F. It is alleged that Pacemaker and belongings were directly ordered by opposite parties No. 1 & 2 to opposite party No. 3. No bill was issued to the complainant. The complainant got issued legal notice. Thereafter opposite parties No. 1 & 2 sent copy of bill to complainant on 03-07-2015 i.e.after 11 Months. It is further alleged that after operation i.e. implantation of Pacemaker, opposite parties No.1 & 2 discharged the complainant on 28-8-2014 and charged Rs.1,40,000/- from him including Rs.60,000/- for Pacemaker. It is alleged that opposite parties never issued any bill for hospital charges and Pacemaker. The complainant demanded bills from opposite parties but they refused and issued one receipt on plain paper of Rs.60,000/- under the stamp of opposite party No. 1. Thereafter complainant followed up the treatment with opposite parties No. 1 & 2 on 2-9-2014, 8-9-2014, 13-9-2014, 22-9-2014, 2-10-2014, 1-11-2014, 15-12-2014 and 26-01-2015 etc., During follow up treatment, there was infection on the complainant where the Pacemaker was inserted in the complainant body. The fluid has collected at that place and infection has started. The opposite parties No.1 & 2 gave medicines on each and every follow up. Finally, without curing infection, on 15-12-2014 at the time of follow up, the opposite party No. 2 referred the complainant with Dr. Raman Goyal, M.ch. Plastic Surgeon at Deol Hospital, Power House Road, Bathinda. The complainant visited opposite parties No. 1 & 2 and Dr. Raman Goyal, but nothing has been cured regarding infection because of wrong treatment of opposite parties No. 1 & 2 and due to infected Pacemaker of opposite party No. 3. The opposite parties in connivance with each other inserted infected Pacemaker in the body of the complainant. Thereafter, complainant visited Global Health Care Dr. Sharad Gupta DM Cardiology, Batra Hospital and Apollo Hospital, Delhi. All the doctors advised the complainant to remove the Pacemaker from the body as it was infected. It can be bust any time. During this period, the Pacemaker was visible out of the body of the complainant with naked eyes. The complainant immediately approached opposite parties and told opinion of the said doctors, but they did not listen and told that opposite party No.2 done the operation on 26-8-2014 and inserted Pacemaker. Now there is no record or bill of the Pacemaker in their hospital. Thereafter complainant immediately again approached Batra Hospital and Medical Research Centre, New Delhi. He was admitted there on 20-5-2015. He was again operated on two parts firstly on the right side for removal of previous infected pacemaker inserted by opposite parties and thereafter new Pacemaker was inserted in the left side of the chest of the complainant. Batra Hospital charged Rs.97,710/- from the complainant including Pacemaker single channel with leads. It is alleged that due to the wrong and illegal acts of opposite parties and due to infected pacemaker, complainant spent Rs.3,00,000/- with Dr. Raman Goyal, Apollo Hospital, Gobal Hospital and Batra Hospital including conveyance charges etc. He also remained on bed for about 10 months due to illegal and wrong acts of the opposite parties. The opposite parties also charged Rs.1,40,000/- illegally form the complainant. As per complainant, there was gross medical negligence on the part of the opposite parties as they firstly inserted infected and used Pacemaker in the body of the complainant and thereafter they did not provide complete treatment to the complainant and adopted unfair trade practice by not providing complete bills and guarantee letter of Pacemaker till date. It is pleaded that due to these acts of the opposite parties, the complainant suffered great mental tension, agony botheration harassment and financial loss. For these sufferings, the complainant has claimed Rs.7,00,000/- as damages with interest @ of Rs. 18% p.a.; Rs. 3,00,000/- incurred as expenses on account of medical treatment, Rs. 1,40,000/- charged by opposite party No. 1 and Rs.50,000/- per month due to loss of income by remaining on bed. It is further mentioned that due to wrong treatment and infected and used pacemaker, the son of the complainant also resigned from his service to look after the complainant. His family is also under financial crunch as his business was totally abolished and service of his son has also gone. On this backdrop of facts, the complainant has claimed compensation of Rs. Rs.16,40,000/- ; Rs. 50,000/- as litigation expenses and Rs. 50,000/- as future medical expenses. Hence this complaint. Upon notice, opposite parties appeared through counsel and contested the complaint by filing written reply. The opposite parties No. 1 & 2 in their joint written reply raised preliminary objections that the complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous. It is unsustainable in the eyes of law. It has been filed without any justified reason/cause against the opposite parties No. 1&2 just to harass, defame and extort illegal sum of money from them. The complaint is liable to be dismissed. That no specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by complainant against opposite parties No. 1 & 2. The complainant has totally failed to explain as to how he is involved and the opposite parties No. 1 & 2 were negligent. That the complainant filed this complaint with false allegations of negligence by claiming exorbitant amounts without any basis, just to waste the valuable time, harass and defame opposite parties No. 1 & 2. The opposite parties No. 1 & 2 have not committed any negligence in this case, while providing treatment. That no cause of action arose against opposite parties No. 1 & 2. That the complaint is totally false, fabricated, wrong and baseless which is synthesized on the basis of unscientific laymen conjectures, assumptions and presumptions. That this complaint is bad for non-arraignment and mis-arrangement of parties. The opposite party No. 1 is insured with United India Insurance Company Ltd through its Professional Indemnity Policy No. 041200/46/14/35/00000561 effective from 24-04-2014 to 23-04-2015. That the opposite party No. 2 is well qualified, reputed and respected doctor. Thereafter, the opposite parties No. 1 & 2 briefed factual matrix as under :- Patient, Subhas had syncope on 25-8-2014, for which he went to Dr. Mohinder Singh and then came to the respondent No.1, Pragma Hospital on 25-08-14. The patient's ECG showed complete heart block. Condition of the patient was discussed with the patient party and was also informed to the patient. A temporary Pacemaker was inserted on him on 25-08-14. On 26-8-14, with the consent of the patient and of the patient party, a new Pacemaker (brand new) of St Jude medical bearing serial No. 4419335 was inserted. Before insertion of the Pacemaker, the details were discussed at length with the patient and with the patient party. A written consent was also taken before insertion of the pacemaker. The patient showed faster recovery due to expert doctors and caring staff, and as such the patient was discharged on 28-8-2014. Only Rs 1,00,000/- were charged which included cost of temporary Pacemaker, cost of permanent Pacemaker (Rs 60,000/-), technologies used for insertion of a pacemaker, hospital charges, medicine charges, blood test, etc. These expenses were clearly disclosed to the patient party including the patient. Before inserting Pacemaker and after the patient party were fully satisfied, they advanced their consent. All the bills were issued and entered into account books. At the time of brief admission of the patient in the opposite party No.1 hospital under supervision of opposite party No. 2, the patient and his attendants thanked opposite party No.2 uncounted times for saving the patient's life. Thereafter the patient attended the hospital for a routine check up on 2-9-14, 3-9-14, 13-9-14, 22-9-14, 2-10-14, 1-11-14, 15-11-14, 21-11-14, 05-12-14, 26-01-15, 10-02-15, 02-03-15, 21-03-15. Unfortunately, during this period the patient developed an infection at Pacemaker site. The patient was started on antibiotics and an expert opinion from a plastic surgeon Dr Raman Goyal was also taken. As per his advise, the patient was managed but unluckily the infection could not be cured. At last, opposite parties No. 1 & 2 advised him to get the Pacemaker removed from his right side and get it planted in his left side. Since last advise, the patient never turned up and lost to follow up. Everything, the opposite parties 1&2 have done, was done diligently, prudently, with utmost due care and caution in treating the said patient. As per opposite parties No. 1 & 2 there was no negligence at least from their side. On merits, the opposite parties No. 1 & 2 have admitted that the patient was discharged on 28-8-14. It is mentioned that the rest allegation of the para is wrong and denied and also it is a false concocted story. It is denied that the patient was charged Rs.1,40,000/-. Rather the patient was charged Rs. 1,00,000/- only, which included Rs 60,000/- as cost of Permanent Pacemaker and Rs. 40,000/- as hospital charges (which includes 10239/- as Medicine charges, the remaining Rs. 29761/- as TPI charges, Permanent Pacemaker Implantation charges, Coronary Angiography charges, blood tests, Bed charges and Doctor Fee etc. It is denied that opposite party No. 2 inserted infected Pacemaker. It is further mentioned that opposite party No. 2 inserted clean and sterilized Pacemaker in the patient. Any Patient can develop infection postoperatively. Infection after Pacemaker insertion can occur in 1-2% of patients, The initial treatment is to give antibiotics, if infection did not get controlled then one has to remove Pacemaker and insert it on the other side. The opposite parties 1&2 also treated the patient on this same guideline. The opposite party No. 2 first tried to control the infection with antibiotics, but when it failed to respond it was planned to remove the Pacemaker. It is denied that complainant spent Rs. 3,00,000/- as pleaded by him. It is also pleaded that complainant was not the first and the last patient to get infected. There is a list of such patients at every hospital/institution who get infected. Complainant could also have been managed if he would have continued the treatment with opposite parties No. 1 & 2. It is denied that opposite parties inserted infected or used Pacemaker. Every Pacemaker carries a Serial Number. This patient's Pacemaker had a Serial Number 4419335. It can be checked anywhere online, from St. Jude Medical Devices site that whether Pacemaker of this Serial Number, has ever been billed to any patient other than the complainant. It is further asserted that all bills were provided to the patient. There is a big difference between complication and negligence. Both are not synonymous. Complications are known to occur. They can occur in any patient or at any institution. Infection is a known Complication. It can occur in 1 to 2% of patients. It can occur in any patient treated anywhere. It is reiterated that everything was done diligently, prudently, with utmost due care and caution. There is no negligence, deficiency of service or unfair trade practice on the part of opposite parties No. 1 & 2. After controverting all other averments, the opposite parties No. 1 & 2 prayed for dismissal of complaint. The opposite party No. 4 in its separate written reply raised legal objections that there is no deficiency in service on the part of opposite parties No.1 & 2 in providing treatment to the complainant. That Doctor Professional Indemnity (Medical Establishment) Policy No.041200/46/14/35/00000561 effective from 24-04-2014 to 23-04-2015 issued to opposite party No. 2 by it. It is a contract of insurance to indemnify the insured regarding legal liability/award/order, which is passed against the insured and which has been satisfied by the insured. Since no award/liability/order/payment has been made against opposite parties No.1 & 2 and in favour of complainant and no compensation has been awarded to complainant so far, insurance company cannot be impleaded at this stage. The name of opposite party is liable to be deleted from the array of the opposite parties. That no expert evidence has been placed on file, which could prove that the opposite party No.2 was negligent in any manner in performing the operation and treatment to the complainant nor any report was sought by this Forum from expert doctor of Civil Hospital, Bathinda before issuing summons nor doctors of Batra Hospital and Medical Research Centre from where the complainant took treatment subsequently, has mentioned in the discharge summary that opposite parties No.1 and 2 were negligent in any manner in treatment of the complainant. The doctor of Batra Hospital has only mentioned in the discharge summary that after implantation of pacemaker, Pacemaker pocket got infected only and any patient can develop infection post-operatively. That as per exclusion clause 2(v) of the policy, this policy does not cover the risk arising out of fines, penalties, punitive or exemplary damages. Although insurance company is not liable to pay any compensation to the complainant nor the opposite parties No.1 & 2 have caused any negligence in treatment of the complainant, yet if this Forum comes to the conclusion that the opposite party No.4 is liable in any manner, then liability of the opposite party to indemnify the insured for any one year is Rs.5 Lacs and for any one accident is Rs.5 Lacs less compulsory excess clause. The further legal objections are that the complainant has not come with clean hands before this Forum and has suppressed material facts. That this Forum has got no jurisdiction to try and entertain the complaint as opposite party No.2 has obtained Doctor Professional Indemnity (Medical Establishment) Policy from United India Insurance Co. Ltd., New Delhi and opposite party is not branch office of the said New Delhi Office. That neither any claim has been lodged against the opposite party nor any deficiency in service on its part has been alleged. As such, the complaint is not maintainable against the opposite party. That intricate question of law and facts are involved in the complaint which require voluminous evidence. As such, complaint cannot be disposed off in summary nature. It should be decided by civil court. That the amount of compensation claimed is highly excessive and exorbitant one. That the complaint is bad for mis-joinder and non-joinder of necessary parties and lastly that the complaint is false, frivolous and vexatious. It is liable to be dismissed with special costs. On merits, the opposite party No. 4 has denied all the material averments and prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence photocopy of retail invoice (Ex. C-1), photocopy of payment receipt (Ex. C-2), photocopy of OPD record (Ex. C-3), photocopy of discharge summary (Ex. C-4 & Ex. C-5), photocopy of lab report (Ex. C-6), photocopy of receipt (Ex. C-7), photocopy of retail invoice (Ex. C-8), photocopy of cash settlement receipt (Ex. C-9), photocopy of legal notice (Ex. C-10), photocopy of postal receipt (Ex. C-11), photocopy of Interrogation (Ex. C-12), photocopy of ID Card (Ex. C-13), affidavit of complainant dated 11-12-2015 (Ex. C-14) and affidavit of Chanderjeet dated 14-12-2015 (Ex. C-15). In order to rebut this evidence, the opposite parties No. 1 & 2 have tendered into evidence affidavit dated 8-7-2016 of Dr. G S Gill (Ex. OP-1/1), photocopy of insurance policy (Ex. OP-1/2), photocopy of medical certificates (Ex. OP-1/3 to Ex. OP-1/6), photocopy of medical literature (Ex. OP-1/7), photocopy of medical record (Ex. OP-1/8), photocopy of certificate (Ex. OP-1/9) and photocopy of ID card (Ex. OP-1/10). The opposite party No. 4 has tendered into evidence affidavit dated 24-6-2016 of Balwinder Singh (Ex. OP-4/1), photocopy of policy (Ex. OP-4/2) and closed the evidence. The complainant has also submitted written arguments. We have heard learned counsel for the parties, gone through the record and written arguments of the complainant. It is submitted by learned counsel for the complainant that material facts are not in dispute. It is admitted that complainant remained admitted in the hospital of opposite parties No. 1 & 2 from 25-8-2014 and Pacemaker was implanted. The complainant was then discharged on 28-8-2014. The complainant has suffered infection after implantation. The main cause of this was Pacemaker was pre-used. The opposite parties No.1 & 2 have admitted that complainant started suffering from infection. They have also admitted that although the patient was started on antibiotics but unluckily infection could not be cured. Therefore, it is admitted case of the opposite parties that complainant suffered from infection during post operative period and the opposite parties failed to control the same. The opposite parties have also admitted that patient was referred to Plastic Surgeon. There was no purpose for referring the patient to Plastic Surgeon. The opposite parties tried to deviate from actual line of treatment and tried further to confuse the matter. As the opposite parties have failed to cure the complainant, he started taking treatment from other doctors. Ex. C-4 proves that complainant got admitted at Batra Hospital, New Delhi. It was diagnosed that Pacemaker pocket infection with pacemaker extrusion. It is proved that Pacemaker implanted by the opposite parties was not properly implanted. Only due to this reason, it extruded and Pacemaker pocket was also infected and new permanent Pacemaker implantation was done on left side. The complainant paid Rs. 97,700/-for treatment at Batra Hospital. The complainant was also forced to consult various doctors. He also remained under physical and mental tension due to negligence of the opposite parties. It is further submitted by learned counsel for the complainant that opposite parties have tried to project that after Pacemaker implantation, infection can occur in 1-2 % patients and if the infection is not controlled, then one has to remove the Pacemaker and implant it on the other side but the point is whether the complainant was informed about these complications. There is nothing on record that complainant was already informed about such type of complications. The opposite parties have also pleaded that it was planned to remove the Pacemaker but there is no such record. The opposite parties have relied upon treatment record (Ex. OP-1/8). The last reference is dated 15-12-2014 referring the patient to Dr. Raman Goyal Mch (Plastic Surgery). The opposite parties have rather referred the patient to plastic surgeon but keeping in view the problem being faced by complainant, there was no reason to refer the patient to plastic surgeon. There is nothing to show that opposite parties also planned for removal of Pacemaker and implantation towards left side. Therefore all these facts prove that opposite parties were negligent in treating the complainant. The Pacemaker was not implanted properly. Only due to this reason, there was infection and ultimately extrusion. As such, complaint be accepted as prayed for. To support these submissions, learned counsel for the complainant cited :- i) 2014 (II) CPJ 5 (SC) case titled Ashish Kumar Mazumdar Vs. Aishi Ram Batra Charitable Hospital Trust & Ors. ii) 2015 (IV) CPJ 383 (NC) case titled Ravnit Kaur Bal Vs. Varinderjeet Kaur iii) 2015 (IV) CPJ 602 (NC) case titled P R Niveditha Vs. Y Ramalakshmamma iv) 2015 (IV) CPJ 711 (NC ) case titled Saint Francis Hospital Vs. Kamla v) 2016 (I) CPJ 228 (NC) case titled Rashmi Taryon Vs. Noida Medicare vi) 2016 (I) CPJ 104 (NC) case titled Dr. Pankaj Vs. Taytya vii) 2016 (II) CPJ 109 (NC) case titled Jyoti Devi Vs. Suket Hospital viii) 2016 (II) CPJ 183 (NC) case titled Raj Hospital Vs. Mahesh Prasad Verma ix) 2016 (II) CPJ 566 (NC) case titled New India Assurance Vs. Sri Sai Hospital x) 2016 (2) CPJ 576 (NC) case titled Venkati Vs. Dr. Prakash xi) 2016 (III) CPJ 370 (NC) case titled V K Gupta Vs. Krishan Kumar xii) 2016 (III) CPJ 421 (NC) case titled Yashoda Hospital Vs. D. Uma Devi On the other hand, learned counsel for the opposite parties No. 1 & 2 has reiterated his stand as taken in written version. It is further submitted by learned counsel for opposite parties that complainant was to firstly allege some specific negligence and then to prove the same. From the pleadings of the complainant, no specific allegation regarding treatment is made out. The opposite party No. 2 is well qualified. Certificates (Ex. OP-1/3 to Ex. OP-1/6) prove this fact. Even otherwise,it is not the case of the complainant that opposite party No. 2 is not a qualified doctor. In para No. 7 of the complaint, the complainant has alleged that opposite parties have used infected Pacemaker but complainant himself has produced on record copy of retail invoice (Ex. C-1) which proves that Pacemaker was purchased on 26-8-2014 directly from supplier. Therefore, there is no evidence to prove that Pacemaker was infected. As such, this allegation of the complainant is not proved. The other allegation of the complainant is that complainant started suffering from infection. Of course it is not disputed by the opposite parties also but mere infection during post operative period is not to be treated as only due to negligence of treating doctor. There are several other factors for infection of surgical wound. When the opposite party No. 2 is fully qualified in the field, he cannot be held negligent only for infection. To support this submission, learned counsel for opposite parties No. 1 & 2 has cited 2019 (II) CPJ 330 (NC) case titled Vishak Gohal Vs. Narmalya Basu & Anr. It is further submitted by learned counsel for opposite parties No. 1 & 2 that opposite party has also produced on record copy of medical literature (Ex. OP-1/7). It also goes to show that incident of infection after Pacemaker implantation is upto 2%. Therefore, the infection is usual complication in case of Pacemaker implantation. The opposite party has also placed on record treatment record (Ex. OP-1/8). It shows that the patient was already informed about the consequences/seriousness of disease. He was also given option for going to some better institute for treatment. This record also proves that after discharge, the complainant was given antibiotics and other treatment to control the infection. When the infection did not come under control, the only option was removal of the Pacemaker and implantation to other side. Batra hospital has also followed same procedure which was planned by the opposite parties. The next submission of learned counsel for opposite parties No. 1 & 2 is that complainant has claimed compensation to the tune of Rs. 16,00,000/- but there is no justification to claim such an exorbitant amount. The complainant has paid a sum of Rs. 1,00,000/- to the opposite parties which included cost of Pacemaker, hospital charges, medicine charges and charges for blood test etc., The complainant has produced copy of bill of Batra Hospital (Ex. C-4) which proves that he has paid Rs. 97,700/- for treatment to that hospital. Therefore, it is proved that complainant has claimed exorbitant amount from the opposite parties without proving any actual loss. The conclusion to be drawn is that complainant has not approached this Forum with clean hands. As such, he is not entitled to any relief. The complaint is abuse of process of law. It is to be dismissed outrightly. We have carefully gone through the record and have considered the rival contentions. From the pleadings of the complainant, it emerges that the complainant has made the following allegations :- a) That the opposite party has not issued bill of the Pacemaker b) That the opposite party used infected Pacemaker c) That complainant suffered from infection due to negligence on the part of the opposite party and OP failed to control the infection. For the sake of convenience, all the points are being taken up separately :- Firstly regarding bill of Pacemaker. Of course, the complainant has repeatedly alleged that opposite party failed to provide the bill of Pacemaker but the complainant himself has produced on record copy of Invoice dated 26-8-2014 (Ex. C-1), regarding Pacemaker implanted in the complainant. Copy of bill dated 26-8-2014 is also produced by the opposite party alongwith treatment record which shows that same Pacemaker was implanted. The complainant has also alleged that Pacemaker used was infected but there is no evidence to prove this fact. The Pacemaker was implanted on 26-8-2014. Ex. C-1 also proves that it was received by the opposite party on 26-8-2014. Therefore, in these circumstances averments of the complainant that Pacemaker was infected, is not acceptable in the absence of any evidence. The next averment of the complainant is that during follow-up treatment, there was infection on the complainant where Pacemaker was implanted and the fuel collected at that place and infection started. The complainant has placed on record treatment record dated 28-8-2014, 2-9-2014, 8-9-2014, 13-9-2014, 22-9-2014, 2-10-2014 and 1-11-2014, which proves that complainant followed up the treatment as advised by the opposite party from time to time and opposite party prescribed medicines mainly for controlling infection. In written version also, the opposite party has admitted that unluckily infection could not be cured. Therefore, it is also admitted case of the opposite party that complainant suffered infection after implantation of Pacemaker and infection could not be cured. The opposite party has tried to save himself by pleading that any patient can develop infection post-operatively and infection can occur in 1-2% of patients. The OP has also tried to get support to this averment from the medical literature, copy of which is Ex. OP-1/9. For the sake of convenience, to examine the procedure, the relevant part of this literature is reproduced as under :- “The incidence of infection after Pacemaker implantation should be less than 2 percent and in most series has been less than 1 percent. Careful attention to surgical details and sterile procedure is of paramount importance in avoiding Pacemaker site infection. Irrigation of the Pacemaker pocket with an antibiotic solution at the time of Pacemaker implantation is probably more important in the prevention of infection.” A perusal of above said literature shows that infection is not a rule but it is exception and it can be avoided by taking some pre-cautions. The other point for consideration is whether the complainant was made aware about these consequences. Of course the opposite party is relying upon some consent forms which are part of the treatment record but perusal of these consents also reveals that these are on the printed proforma and there is nothing to show that complainant was made aware of the consequences of infection before starting treatment. Moreover, when the opposite party was aware of the fact that there are chances of infection although in 2% cases, the opposite party was also to cope-up with and control the same. It is also pleading of the opposite party that when the infection could not be cured, he advised the complainant to get Pacemaker removed from this right side and get it implanted in his left side . This was last advice and complainant never turned up and lost follow up. Ex. OP-1/8 contains day to day prescription/advice. The last advice was regarding referring to Deol Hospital – Dr. Raman Goyal Mch (Plastic Surgeon). In para No. 8 which is regarding factual matrix and medical facts, in written version, the opposite party has admitted that an expert opinion from plastic surgeon Dr. Raman Goyal was also taken and as per his advise, the patient was managed. It was simple case of Pacemaker implantation. There was no apparent role of any plastic surgeon to treat the infection or to cure the patient. Moreover, there is nothing to show that complainant was advised to get Pacemaker removed from his right side and get it implanted in his left side. The allegation of the opposite party that complainant never turned up and lost follow up is not supported by documentary evidence relied upon by opposite party himself which is record of treatment. As per complainant when the opposite party failed to solve the issue, complainant approached Batra Hospital & Medical Research Centre, New Delhi. Ex. C-4 is the Discharge Summary. As per this document :- History and Presenting Complaints – 64 years old male is a known case of complete heart block, post Permanent Pacemaker implantation (VVI), St. Judge medical 26-8-2014, presented with extrusion of pacemaker x 2-3 days pacemaker pocket infection (right side) x 3-4 months. Course during hospital stay – Patient was admitted. New permanent pacemaker implantation was done under aseptic precaution through left subclavian vein. Previous pacemaker explanted from right side with pocket toilet and antiseptic dressing. Pacemaker details Medtroni VVI (SN NWU 0522194)”. Therefore, history and course followed at Batra Hospital clearly establish that there was extrusion of pacemaker implanted by the opposite party. It was only due to infection suffered by complainant and which the opposite party failed to cure/control. The complainant has undergone two more operations firstly explantation of previous pacemaker and then implantation of subsequent pacemaker on the other side. Keeping in view the factual position, negligence on the part of the opposite party in treatment provided to complainant, stands established. Now the point is regarding quantum of compensation to be awarded to the complainant. The complainant has claimed total compensation of Rs. 16,40,000/- i.e. Rs. 7,00,000/- for sufferings, Rs. 3,00,000/- on account of medical treatment charged by Dr. Raman, Batra Hospital, Apollo Hospital and Global Hospital and Rs. 1,40,000/- charged by opposite party No. 1. The complainant has produced only one receipt of Rs. 60,000/- and opposite parties No. 1 & 2 have admitted charging of Rs. 1,00,000/-. The complainant has also placed on file bill Ex. C-8 which proves that total sum of Rs. 97,710/- was paid to Batra Hospital. No other bills/receipts are produced on record to prove expenditure on other treatment at Batra Hospital. The complainant remained admitted in the hospital (opposite party). He also suffered mental tension, harassment and physical pain between the period of first operation and second operation. Legal position regarding amount of compensation has been explained by the Hon'ble Supreme Court of India, National Commission and State Commissions in number of authorities. In latest judgment titled as Chief Administrative Huda Vs. Shakuntla Devi, I 2017 (CPJ) SC in Paragraph No.12 of this judgment, Hon'ble Supreme Court of India has observed as under:- “12) The sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of opposite party. Once the said conditions are satisfied, the Consumer Forum would have to decide the quantum of compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable and commensurate to the loss or injury. There is a duty cast on the Consumer Forum to take into account all relevant factors for arriving at the compensation to be paid.” Therefore, keeping in view facts, circumstances and the evidence placed on file by the parties, compensation of Rs. 5,00,000/- on all counts i.e. all expenditure incurred/to be incurred on treatment and compensation for mental and physical sufferings, is considered justified. For the reason recorded above, this complaint is partly accepted with Rs. 10,000/- as cost against opposite parties No. 1 & 2 and dismissed qua opposite parties No. 3 & 4. The opposite parties No. 1 & 2 are directed to pay Rs. 5,00,000/- (Rupees Five Lacs only) as compensation to complainant. The compliance of this order be made within 45 days from the date of receipt of copy of this order failing which an amount of Rs. 5,00,000/- would carry interest @12% p.a. till realization. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 03-07-2019 (M.P.Singh Pahwa ) President (Manisha ) Member
| |
