Punjab

StateCommission

FA/1432/2013

Hakam Singh - Complainant(s)

Versus

Rajinder Hospital & Anrs. - Opp.Party(s)

Alankar Arora

30 Jan 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB    SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                                      First Appeal No.1432 of 2013.

 

                                                          Date of Institution:    23.12.2013.

                                                          Date of Decision:              30.01.2015.

 

Hakam Singh S/o Dalip Singh, R/o Village Todarpur, Tehsil Samana, District Patiala.

                                                          …..Appellant/Complainant

         

                                      Versus

 

1.      Government Rajindra Hospital, Patiala, through its Medical      Superintendent.

 

2.      Dr. J.P.S. Walia, Head of the Department of Orthopedics,        Government Rajindra Hospital, Patiala.

 

                                                          ….Respondents/OPs.

         

First Appeal against order dated 12.11.2013 passed by the District Consumer Disputes Redressal Forum, Patiala.

Quorum:-

 

                    Shri Baldev Singh Sekhon, Presiding Member.

                    Shri Harcharan Singh Guram, Member.     

Present:-

 

          For the appellant         :         Sh. Alankar Arora, Advocate.

          For the respondents:   None.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

BALDEV SINGH SEKHON, PRESIDING MEMBER:-

                                     

                   This appeal has been filed by the appellant/complainant against the order dated 12.11.2013 passed by the District Consumer Disputes Redressal Forum (in short, “the District Forum”), Patiala vide which the complaint filed by him against the respondents/OPs alleging medical negligence on their part was dismissed.

2.           Briefly stated, the facts of the case are that the complainant got admitted in the Govt. Rajindra Hospital, Patiala on 15.12.2011 on account of deformity of left knee and problem in walking. He informed the doctors in the hospital, as also to OP-2, that he was suffering from the said problem for the last 10 years since he had fallen. Operation of his left knee was performed on 17.12.2011 from 11.30 AM to 2.30 PM by the team of the doctors under the supervision of Dr.J.P.S.Walia (OP-2). During the operation: “Modular Knee system posterior stabilized, cemented and tibial insert fixed bearing stabilized was applied. After the operation, the pain had increased to the extent that it became in-tolerable. Complainant immediately informed about the complication to the concerned doctor. The doctors visited and examined him, but he was not attended by OP-2. Instead OP-2 discharged the complainant on 02.01.2012. The complainant again visited OP-1 on 10.1.2012 and complained about the pain. Under the directions of Dr.Varinder Garg, of the department of radiology, the x-ray of the knee joint revealed displacement and dislocation of knee. OP-2 advised further medicines and precautions,  but his condition deteriorated day by day. On 27.01.2012, the complainant visited Dr.Vinod Kumar, joint replacement surgeon, department of Orthopedics  Ivy hospital, Sector 71, Mohali, who advised Open Reduction under SA, which was performed on 03.02.2012 by Dr.Vinod Kumar and it revealed : “ Patella tendon already cut Mismatch of component (Tibia and femur component) unable to ext. finally there is tenderness to dislocation to posterior side infection un healthy gradually tissue present”.
3.                     It was further averred that Dr.Vinod Kumar clearly stated that during the operation performed on 17.12.2011 by the OPs, tibia and femur component were cut and the same were displayed  and dislocated due to the negligence in the operation performed by the OPs, which resulted into number of surgical operation undergone by him. Ultimately, the left knee was removed by Dr.Vinod Kumar at Indus Hospital on 18.03.2012 by applying the procedure of knee Arthrodesis. Dr.Vinod Kumar is a joint replacement surgeon and is Ex-Registrar PGI. It was further averred that due to the negligence in the performance of the operation by OP-2, a defect developed in the knee joint rendering him permanently disabled so as to bend his leg. After the operation done by OP-2, no other treatment was left except the removal of the total knee joint, which was done by Dr.Vinod Kumar. All this had occurred because of the negligence in the cutting of tibia and femur by the OPs on 17.12.2011. It was further averred that the complainant spent Rs.65,045/- at Indus Super Specialty Hospital SAS Nagar, Mohali, out of which only Rs.18000/- were approved under Bhai Ghanaia Sehat Sewa Scheme and therefore, he had to pay a sum of Rs.47,045/- . He had paid Rs.66,650/- for his treatment got from Ivy Hospital. In all, the complainant spent Rs.1,13,695/-. He also suffered pain, harassment and the mental agony because of the act of the OPs. Accordingly, the complainant filed complaint before the Forum, seeking directions to the OPs to pay to him Rs.1,13,695/- along with Rs.5 lacs by way of compensation on account of the complainant having been rendered permanently disabled; to pay Rs.50,000/- on account compensation on account of the harassment and the mental agony experienced by him, Rs.11,000/- as costs of the complaint.
4.          Upon notice, the OPs appeared and filed their written reply, raising certain preliminary objections, interalia, that the complaint is bad for non joinder of the State of Punjab which is a necessary party and that the complaint was not maintainable against the OPs, as they had not rendered any treatment to the complainant for any consideration. It was further pleaded that when the complainant was operated, he was explained regarding the surgery and the outcome thereof. He came accompanied by his relative/friend who gave the consent for the operation. The complainant was operated with a deformity and restriction of movement of left knee joint for the last 10 years. The x-ray report showed severe nature of Osteoarthritis and deformity of the knee. It was, however, admitted that the operation was performed by Dr.J.P.S.Walia Professor and Head of the Department of Orthopedics i.e. OP-2 having an experience of more than 30 years along with team of doctors including anesthetists. Surgery was performed and completed satisfactory. Post operative period up to 02.01.2013 remained satisfactory and uneventful. The complainant was discharged in a stable and afebrile condition with a healthy and dry suture line. He was advised to take precaution, follow up of physiotherapy and also for follow up in Orthopedics OPD after one week. It was denied that after the operation, the complainant had suffered intolerable pain or that he immediately informed about the same to the concerned doctors and that some other doctor of OP-2 visited and examined the complainant. It was further denied that the pain and complications were not getting over and that OP-2 discharged him on 02.01.2012. In fact, the complainant was discharged in a stable condition. The detail of the treatment given to him is given in the bed head ticket. But, the complainant, despite the advice, had not visited the orthopedic OPD for follow up. It was further denied that on a direction by Dr.Varinder Garg, the x-ray of knee joint was conducted in the department of radiology and the said report showed displacement and dislocation  of the knee. In fact, Dr.Varinder Garg was not posted in the orthopedic unit of OP-2. Displacement and dislocation of the knee might have occurred due to fall while walking. The said fact come to the knowledge of the OPs from the record produced by the complainant showing that he is opium addict and, therefore, he might have fallen while walking after discharge from the hospital. He did not contact OP-2 and therefore, no medicines were prescribed by him. OP-2 had  come to know regarding the treatment obtained from Dr.Vinod Kumar only when the OPs received the summons along with the copy of the complaint. In fact, there was no mismatch of the femoral and tibial components of the implant as the same were checked intra operatively. Patella tendon was intact even at the time of the completion of the surgery was completed successfully. Patella tendon was intact at the time of discharge. It was specifically denied that Dr.Vinod Kumar had clearly stated that during the operation dated 17.12.2011 performed by the OPs, tibia and femur components were cut and they were displaced and dislocated due to any negligence  in operation on the part of the OPs. The dislocation is one of the complications of total knee replacement, the treatment in respect of which is Open Reduction, control of infection with a minimum gap of six weeks. If reduction is not possible, then the first choice is revision  of TKR and knee arthrodesis is the last resort. Dr.Vinod had imparted the treatment to the complainant in the Indus Hospital as per his own view although the procedure of the knee Arthrodesis was the last resort as stated above. Deformity of left knee, as alleged, was not due to any negligence in the operation by the OPs, but due to sudden fall of the complainant. It was pleaded that the OPs had provided the best treatment to the complainant as was required. The treatment imparted by Dr.Vinod Kumar is also available in Rajindra Hospital, Patiala, but the complainant had never visited OP-1 after his discharge. Denying all other allegations, dismissal of the complaint was prayed.
5.           Parties led their evidence by way of affidavits and documents before the District Forum, which after going through the same, dismissed the complaint, in aforesaid terms.
6.           Aggrieved by this order, the complainant has come up in the appeal on the grounds that Patellar Tendon is an important issue which helps in flexibility of knee was found already cut. it must have taken place at the time of operation done by OPs-1 & 2 because if Patellar Tendon was alright at the time of operation, then no complication of pain is to be found at the time of discharge, but pain was there at the time of discharge. Moreover, it was the duty of OPs-1 & 2  not to discharge the patient till his satisfaction. It was further submitted that the duty of the doctor was to take the consent of the patient before operation, if the patient was in conscious state and consent of any other relative was not a valid consent.  In the present case, the consent from the son of the complainant before the operation is negligence in itself.  It was also the duty of the doctor to provide proper treatment and remove the complications of the patient before discharge. OP-1 admitted in Para-5 of his affidavit that at the time of discharge, Hakam Singh was given instructions and one of the instructions was not to walk without medical advice. He has further admitted in Para-8 of the affidavit that the deformity of knee has not occurred due to negligent operation performed by him and his team, but it was due to sudden fall while walking against advice. Setting aside of the impugned order and acceptance of the complaint in toto was prayed.
7.           We have gone through the pleadings of the parties and have carefully perused the evidence proved on record.
8.           The admitted facts of the case are that the complainant was admitted in Govt. Rajindra Hospital, Patiala on 15.12.2011 on account of deformity of left knee and problem in walking, which developed due to the fall 10 years back. The operation of the left knee of the complainant was performed on 17.12.2011 by the team of doctors under the supervision of Dr. J.P.S. Walia (OP-2) and during the operation, “Modular Knee system posterior stabilized, cemented and tibial insert fixed bearing stabilized” was applied. It has been contended by the complainant that after the operation, his pain increased to the extent that it became intolerable, but OP-2 discharged him on 02.01.2012. It is further his case that he again visited OP-1 on 10.01.2012 and complained about the pain and on the advice of Dr. Varinder Garg, x-ray  of the knee joint was got done, which revealed displacement and dislocation of the knee. OP-2 advised further medicines and precautions, but his condition deteriorated day by day. On 27.01.2012, he visited Dr. Vinod Kumar, Joint Replacement Surgeon, Department of Orthopedics, Ivy Hospital, Sector-71, Mohali, who advised him “Open Reduction under SA”, which was performed on 03.02.2012 by said Dr. Vinod Kumar. During the operation, it was revealed that patella tendon was already cut and there was mis-match of component (tibia and femur component) unable to ext. Finally, there is tenderness to dislocation to posterior side infection und healthy gradually tissue present. It has been contended by the complainant that Dr. Vinod Kumar clearly stated that during the operation performed on 17.12.2011 by OPs, the tibia and femoral component were cut and same were displaced and dislocated due to negligence in operation performed by the OPs, which resulted into a number of surgical operations undergone by him and it was ultimately that his left knee joint was removed by Dr. Vinod Kumar at Indus Hospital on 18.03.2012 by applying the procedure of knee Arthrodesis. It was further contended that consequent upon the operation done by OP-2, no other treatment was left, except for the removal of the total knee joint, for which he had spent Rs.65,045/- at Indus Super Specialty Hospital, Mohali out of which only Rs.18,000/- were approved under Bhai Ghanhya Sehat Sewa Scheme.
9.           On the other hand, the OPs have categorically contended that there was no negligence in the performance of the operation and the patient was discharged on 02.01.2012 in satisfactory condition. The complainant himself has proved on record the medical record of Rajindra Hospital, Patiala as Ex.C-3, perusal of which shows that after the operation conducted on 17.12.2011, the patient was shifted to R/R satisfactorily. The discharge summary of OP-1 is also proved by the complainant Ex.C-4 in which, it is mentioned that patient was told to take precautions, as advised; physiotherapy as advised; follow-up in Ortho OPD after one week.
10.           The patient reported to the hospital of OP-1 on 10.01.2012, where the doctor, attending him, advised him x-ray. The complainant again reported in the OPD Deptt. on 17.01.2012, where the doctor planed “Open Reduction”  and advised for admission on 02.02.2012, but the complainant preferred to go to Ivy Hospital on the said date. The discharge summary of Ivy Hospital is proved as Ex.C-8 in which it is mentioned that the “Open Reduction” under SA was done on 03.02.2012 and under head “Findings”, it is mentioned that Patella Tendon already cut, mis-match of component (tibia and femur component), unable to etc. and finally, there is tenderness to dislocation to posterior side.
11.           Thereafter, the complainant was admitted in the Indus Hospital on 17.03.2012 and the discharge summary is proved as Ex.C-9. Though, it is established that there was a dislocation of the tibia and femur component and Patella Tendon was found cut, but it cannot be established that how this dislocation of the joint and cutting of the Patella Tendon took place. Apparently, the patient was discharged from OP-1 hospital on 02.01.2012 under satisfactory condition and there is no such reference about any cut in Patella Tendon in the discharge summary of the hospital. Had this been the position after the operation conducted by OP-2 on 17.12.2011, this must have been recorded in the medical record of OP-1. On the contrary, in the discharge summary (Ex.C-4), it is clearly mentioned that the patient is being discharged in a stable and afebrile condition with a healthy and dry suterline. It has been contended by the OPs that this dislocation of joint and cut in Patella Tendon occurred after the discharge of the complainant from OP-1 hospital, due to failure of complainant to take precautions as advised in the discharge summary. It has been further contended by the OPs that the complainant is an opium addict and he might have fallen, due to which the said dislocation took place, because from the discharge summary of Indus Hospital (Ex.C-9), it is confirmed that the patient/complainant is “opium addict”. The complainant has also relied upon a certificate dated 03.09.2013 issued by Dr. Vinod Kumar on the letter head of Ivy Hospital, Mohali (Ex.C-1). In this certificate, it is stated by Dr. Vinod Kumar that “patient’s left total knee replacement was done on 17.12.2011 at Rajindra Hospital, Patiala. The patient has been presented with dislocation of knee joint left side. Open Reduction was carried out on 03.02.2012 under SA, but failed due to mechanical failure i.e. Patella Tendon cut, mismatch of components with infected unhealthy granulation tissue present.” But in this certificate, it is nowhere mentioned that dislocation of the knee joint took place in OP-1 hospital. It only narrates the sequence of events. Admittedly, the patient was examined by Dr. Vinod Kumar in Ivy Hospital on 02.02.2012 almost three weeks after the discharge from OP-1 hospital. Thus, the dislocation of the joint or the cutting of the patella tendon cannot be attributed to any negligence on the part of OP-2.
12.           In view of aforesaid discussion, we do not find any proof to conclude that the said dislocation of knee was on account of any negligence in conducting the operation or during postoperative care in OP-1 hospital. Accordingly, the appeal filed by the complainant is dismissed and the impugned order passed by the District Forum is upheld. No order as to costs.
13.           Arguments in this appeal were heard on 19.01.2015 and the order was reserved. Now the order be communicated to the parties.
14.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                               (BALDEV SINGH SEKHON)

                                                                    PRESIDING MEMBER

 

                       

                                                          (HARCHARAN SINGH GURAM)

                                                                              MEMBER

 

January 30, 2015.                                                               

(Gurmeet S)