Haryana

StateCommission

A/868/2014

Max Hospital, Gurgaon - Complainant(s)

Versus

Shakuntla Wadhwa - Opp.Party(s)

07 Nov 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.868 of 2014

Date of the Institution: 29.09.2014 and 01.10.2014

Date of Decision: 07.11.2016

 

1.      Max Hospital, Gurgaon, B-Block, Sushant Lok Phase-1, Gurgaon through its authorized representative.osH.

2.      Dr. Harinder Nath Bajaj, Senior Consultant, Department of Orthopedics Max Hospital, B-Block, Sushant Lok Phase-1, Gurgaon.

…..Appellants

Versus

Shakuntla Wadhwa W/o Sh.N.C.Wadhwa, R/o 6/33,Shivaji Nagar, Gurgaon.

…..Respondent

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs.Urvashi Agnihotri, Member

 

Present:-    Mr.Vishal Gupta, Advocate for the appellants.

                   Mr.Ravi Kant, Advocate counsel for the respondent.

 

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

It was alleged by complainant that on 12.01.2008 she met with an accident and was taken to  nearest hospital i.e. Aryan Hospital and was given first aid.  After x-ray examination it was found that she was having facture of upper end of left humerus. Considering fracture as serious injury, she was got discharged from Aryan Hospital and was taken to Opposite Party No.2-appellant  No.1 (In short O.P.) on that very day.  After conducting city scan and x-ray it was told that to put shoulder in normal condition strapping was required for atleast 21 days. When O.P.No.1-appellant No.2 enquired whether she was having medical claim or not and she answered in affirmative, operation was suggested and alleged that to be matter of 15 minutes and everything would be alright. Her husband told that operation be conducted in case of necessity only. As she was admitted at O.P.No.2 there was no other alternative except to act as per advice of O.P.No.1.  On 14.01.2008 operation was conducted  which  took few hours. When she gained consciousness left hand was totally numb and motionless. When this fact was brought to notice of O.P.No.1 it was told that everything would be normal within three weeks and strapping was done. City scan was received by her on 15.01.2008 which was as under:-

“Investigation: CT Lt. shoulder with 3D  reconstruction.

          Results:

2.5 mm thin sections were taken for the shoulder without administration of intravenous contrast on a multi-slice (16 slice) spiral scanner. The study was supplemented by multi-planner reformats & 3-D reconstruction.  Comminuted fracture greater Tuberosity left humerus. Rest of the bones in view of are normal.  No evidence of disloacation.”

She was discharged on 17.01.2008.  On 26./01.2008 when she visited O.P.No.1, x-ray was advised and was asked to come on 04.02.2008. After removal of strapping, left shoulder was totally jam and hand was motionless as well as numb.  There was acute pain also.  O.P.No.1 advised some medicines and physiotherapy and told that after three months everything would be alright.  When there was no relief she went  to Dr. Rohit Arora Orthopedic at Shubham Hospital, Basai Road,Gurgaon.  After conducting x-ray it was told that part of steel bit was left in the bone of left shoulder.  It was clear negligence on the part of the O.P.No.1. On 29.02.2008 when she went to O.P.No.1 presence of screw washer, made of stainless steel,  in shoulder was admitted and advised to avoid MRI. As there was consistent problem she went to  Indian Spinal Injuries Centre, Sector-C, Vasant Kunj, New Delhi and the doctors of aforesaid centre also declared it as a failed attempt operated greater Tuberosity and a drill bit inside.  Thereafter she also went to Sir Ganga Ram Hospital, New Delhi and after receiving x-ray report etc. it was told by doctors that screw/vassal was still in the shoulder and MRI was not possible because it  could be fatal. It showed that O.P.No.1 was very careless at the time of conducting operation and that is why her shoulder became useless. She be granted compensation to the tune of Rs.Ten lacs for mental torture and harassment etc. besides the cost of treatment alongwith interest @ 18% per annum.

2.      O.Ps. filed reply controverting her averments and alleged that O.P.No.1 treated her to the best of his  ability and as per procedure required to conduct surgery. As she was having comminuted fracture greater tuberosity of left humerus  a wire was to be passed through skin to bring bones together.  While the screw was being tightened carefully the bone of greater tuberosity gave way and screw-head with it’s washer entered the substance of the bone. The screw was very carefully removed but not the washer because retrieval of washer inside the bone would have entailed splitting bone and creating unnecessary morbidity. As fracture came to it’s original position, as it was prior to surgery, shoulder was mobilized by strapping using the x-ray control. Husband of complainant was informed about all the events in the operation theatre.  This was a known risk in old age patients. There was no negligence on their part and complaint be dismissed.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Gurgaon (In short “District Forum”) allowed the complaint vide impugned order dated 21.08.2014 and directed as under:-

“Thus, the complainant is entitled to compensation  for this long mental and physical sufferings from the hands of the O.ps though admittedly she has already received a sum of Rs.45,804/- from the insurance company out of the total expenses of Rs.63,519/- as detailed in para No.22 of the complainant as well as Rs.10375/- as detailed in para No.4 and 5 of this order, hence, she is entitled for the balance amount of Rs.28,090/- (Rs.63519 + Rs.10375-Rs.45804) from the O.Ps and a compensation of Rs.4,00,000/- (Four lacs only) to be paid 50% each by O.P.No.1 and 2 with interest @ 9% p.a. from the date of filing of the complaint till realization. She is also entitled to litigation expenses of Rs.5,000/-.”

4.      Feeling aggrieved therefrom O.ps. have preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for the appellants-O.Ps. vehemently   argued  that learned District Forum has not opined that there was any negligence or carelessness on the part of the O.P.No.1, but, even then aforesaid compensation was granted. It was further argued that there was comminuted fracture of the upper end of left humerus and proper procedure about operation was followed.  There is no evidence on the file showing that O.P.No.1 was careless to any extent.  In old age such like problem can occur. It is known risk and particularly in old age. Washer was not retrieved because that process could have caused further damage to the bone. When there is no negligence on their part, they are not liable to pay any compensation. In support of his arguments  he placed reliance upon the opinion of Hon’ble Supreme Court expressed in Kusum Sharma & others Vs. Batra Hospital & Medical Research Centre & others 2010 (2) CLT 282, opinion of Hon’ble High Court of Punjab and Haryana, Chandigarh expressed in Bajaj Allianz General Insurance Company Limited Vs. Mahesh Kumar and Ors. 2010 (2) RCR (Civil) 785 and National Insurance Co. Ltd. Vs. Santosh and Ors. 1999 ACJ 1262 and opinion of Hon’ble Andhra High court in Mothukuri Bheemavva And Ors. Vs.Andhra Pradesh 1999 ACJ 1269.  He  also argued that no reliance  can be placed upon the report given by the Board appointed by Civil surgeon Gurgaon because none of them was produced before the District Forum to prove the same. 

7.      However there is no dispute as far as legal proposition is concerned, but, if we go through evidence available on the file it will be clear that there was negligence on the part of the O.P.No.1 and learned District forum has also opined to this effect.  If we go through entire para No.13 of the impugned order it will be clear that learned District forum opined that O.P.No.1 did not take proper pre-caution. For ready reference para No.13 of the impugned order is reproduced as under:-

“Thus, in view of the facts and circumstances discussed above and the law laid down by the Hon’ble courts above though it is not a case of medical negligence and carelessness on the part of OP-1 while operating the complainant but though the procedure was uneventful and good reduction was achieved but while the screw was being tightened though allegedly carefully the bone of the greater tuberosity allegedly gave way and the screw head with it’s washer entered the substance of the bone which is also allegedly a known risk in the old age patients like complainant. Still OP-while keeing in mind these known risk should have taken extra due care and precaution which he failed to do though he has successfully succeeded in removing the screw but washer causing great harassment to complainant and a long painful treatment despite operation in a super specialty hospital like OP-2 with various skilled, experienced, highly qualified surgeon i.e. OP-1 compelled to bear with it life long as it will haunt her endangering even her further treatment as MRI admittedly could not be conducted on her person. The complainant has to bear heavy expenses for her treatment not only with the OP hospital but also in other super specialty hospitals like Sir Ganga Ram Hospital, Indian Spinal Institute and thus, was running from pillar to post which amounts to deficiency of service on the part of the OPs.”

8.      It is specifically mentioned therein that OP No.1 should have taken extra care and precaution which he failed to do.  It shows carelessness on the part of the O.P.No.1. Even otherwise if complainant was old, OP No.1 must have kept in mind that bones might be fragile and brittle and should have applied force accordingly.  In discharge summary it was mentioned that bone was of poor quality and screw cut out occur.  It shows that condition of bone was to the notice of O.P.No.1, but, he did not take proper precaution.  More so, in discharge summary it was not mentioned that washer had remained inside the bone. This fact is mentioned in operative notes Ex.R-2/A. Why this fact was not mentioned in discharge summary is no where explained by O.Ps.  It shows that they were trying to conceal this fact from the complainant.  No doubt procedure may be  the same, but, it could vary from person to person keeping in view the age and the physic.  If any nail is to be inserted in any wooden part , no doubt the same is to be hit by hammer but nature/strength of wood, size of nail, force with which hammer is to be hit  are to be kept in mind. O.P.No.1 cannot allege that he followed the procedure laid down in the books.

9.      More so during pendency of complaint learned District forum asked Civil surgeon Gurgaon to constitute board  and opine about this fact. Board constituted by Civil Surgeon, Gurgaon gave following opinion:-

“After undergoing all the facts we are of the opinion that either the treating surgeon was not experienced enough to undertake such kind of surgical procedure or he did not take adequate precaution to avoid the complication the patient suffered postoperatively.”

10.    From the perusal of this report it is clear that O.P.No.1 was not careful while conducting operation which resulted into uniseries of the complainant. This report is given by public servants and cannot be ignored just on the basis of report Ex.R-6 of doctor A.K.Singh because it is a general opinion and is not pertaining to this very case. Whereas board constituted by civil Surgeon Gurgaon gave opinion after examining the entire case of complainant. This report is given by public servants is per se admissible in evidence during the proceedings of this complaint and formal proof is not required  and cannot be thrown away or ignored as argued by learned counsel for the O.Ps.  It is also well settled that Evidence Act, 1872 (In Short “Evidence Act”) is not strictly applicable in consumer complaints as per view of Hon’ble National Commission in first appeal No.512 of 2013 titled as Sheela R.Ohri Vs.Bajaj Aallianz General Insurance decided on 11.11.2014.  Case laws cited by learned counsel for appellants to this effect are pertaining to validity of driving licence and other documents in MACT cases. So these arguments are of no avail and there is no hesitation to come to conclusion that there was negligence on the part of O.P.No.1 as opined by the Board of doctors.

11.    In view of the above discussion when there is negligence on the part of the O.Ps. they are liable to pay compensation to complainant. As per Para No.22 of the complaint she spent Rs.84617/- (round figure Rs.85,000/-) on her treatment out of which Rs.45,804/- are reimbursed by insurance company. The O.Ps. are not only liable to pay the remaining cost of treatment, but, also qua permanent disability and mental harassment etc.  Learned District forum has granted compensation qua this aspect to the tune of Rs.Four lacs which is reduced to Rs.Three lacs to be paid by O.Ps. as mentioned in impugned order.

12.    With this modification, appeal stands disposed of.

13.    The statutory amount of Rs.25,000/-  deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules.

November 07th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.