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Rajpal filed a consumer case on 03 Jul 2024 against Shree Hari Hospital in the Karnal Consumer Court. The case no is CC/489/2021 and the judgment uploaded on 05 Jul 2024.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.
Complaint No. 489 of 2021
Date of instt.14.09.2021
Date of Decision:03.07.2024
Rajpal son of Shri Bharta Ram aged about 65 years, resident of village Dilawara Tehsil and District Karnal.
…….Complainant.
Versus
…..Opposite Parties.
Complaint under Section 35 of Consumer Protection Act, 2019.
Before Sh. Jaswant Singh……President.
Sh. Vineet Kaushik…….Member
Dr. Suman Singh…..Member
Argued by: Shri Shadi Ram Chauhan, counsel for the
complainant.
Shri Rajan Gupta, counsel for the OPs no.1 and 2.
Shri Ashok Vohra, counsel for the OP no.3.
(Jaswant Singh, President)
ORDER:
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that on 28.06.2019, complainant met with an roadside accident and in the said accident complainant sustained fracture on his right arm. After the accident, complainant was shifted to the Civil Hospital, Karnal where he was medico legally examined and was advised for operation of his right arm. The doctor asked him that in the Civil Hospital it would take few days in his operation because there still many other patients who in queue. Since there was huge problem in the arm of the complainant but despite of that he was waiting for his turn in the hospital but in the meantime a representative of the OP no.2 met to the complainant and asked him to get himself treated in the hospital of OP no.1 by alluring that said doctor is very good and he will operate him nicely. The complainant came under his instigation and he on 01.07.2019 got himself admitted in the hospital of OP no.2. The operation of the right arm of the complainant was conducted by OP no.2 and he was discharged from the hospital on 04.07.2019. The OP no.2 charged an amount of Rs.1,00,000/- from the complainant as operation charges, hospital charges, dressing and medicine and other operation equipment etc. The complainant asked the OP no.2 for issuing the receipt of same but the same was not issued with some malafide intention. Despite of the operation, the pain in the arm of complainant was not removed rather it started rising day by day. The complainant visited the OP no.2 several times but every time OP no.2 gave high potency anti biotic to the complainant and assured that with the said medicines the problem of pain would be removed but same was not cured. On 08.07.2019 x-ray was conducted by the OP no.2 and from the x-ray it reveals that the operation of the complainant is totally unsuccessful as the OP no.2 while doing operation did carelessness and negligent because the broken bone of the right arm has not been set-right before operation and the plates have not been plugged properly. The x-rays are enclosed and a layman can also see from naked eye that the broken bone has not been properly set right by the doctor. On 22.06.2020, the complainant visited Dr. Girdhar, Ortho Surgeon of Girdhar Hospital, Karnal for getting his opinion and treatment and who on seeing the physical position and x-ray of the complainant told that the operation has not been conducted rightly by the operating doctor and now said arm is required to be re-operated. On 28.07.2020, complainant again visited the OP no.2 and OP no.2 got conducted another x-ray and then stated that he will re-operate the said arm and will charge very nominal charges from him. The complainant came under the instigation of the OP no.2, again admitted in the hospital of OP no.2 and second operation was conducted by OP no.2 and at the time of discharge the OP no.2 assured that now his operation has been conducted rightly and he will have to face no problem in future regarding this arm. But at the time of discharge, OP no.2 claimed an amount of Rs.1,00,000/- as operation, hospital and medicine charges from the complainant. The complainant asked him that he is poor fellow and before operation doctor told that very nominal charges would be taken and then OP no.2 told that he has to spent huge amount in maintaining his hospital and as such he would not accepted any less amount, then under protest the complainant has to pay Rs.1,00,000/- more to him but this time too he has not issued any receipt to the complainant. It is further alleged that despite of second operation, the problem of the complainant could not be removed and he again visited the OP no.2 and told him said problem but he stated that with the passage of time everything will be all right. The complainant waited for two months but pain went on going as it was earlier in the right arm of complainant. On 06.10.2020, complainant again visited the OP no.2 for removable of his problem and he was again conducted the x-ray of right arm of the complainant and found that again the bone has not been jointly properly by the doctor which shows that the OP no.2 while operating the complainant shown sheer negligence and carelessness due to which abovesaid problem was occurred. After this x-ray, the complainant raised objections to the OP no.2 about his operation and asked for refund of his amount received by him and to bear the future expenses of his treatment but he flatly refused to do so and rather insulted and threatened him that if the complainant will come again in his Hospital then he will be involved in false criminal case. Due to the said carelessness and negligent act of the OP no.2, complainant has become permanent disabled from his right arm and is not able to do so his agriculture work. He has to engage a worker for doing his agriculture work to whom he has been paying Rs.12000/- per month.
2. Further, it is alleged that lastly complainant visited Dr. Mukesh Jain, well known Ortho surgeon of Muzaffar Nagar (UP) but he gave estimate of Rs.6,00,000/- of his operation charges etc. of said right arm but the complainant is having no means with him to pay said huge amount, hence he has to drop the idea of third operation. Due to the abovesaid act of OP no.2, the nights of the complainant has become sleepless and days become restless as the pain is continuously running in his said arm. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint seeking direction to the OPs to refund the amount of Rs.2,00,000/- with interest @ 18% per annum, to pay Rs.12,00,000/- for causing permanent disability, mental agony and harassment and by doing carelessness and negligent while doing two operations of the complainant and to pay Rs.22000/- as litigation expenses.
3. On notice, OPs no.1 and 2 appeared and filed its written version raising preliminary objections with regard to maintainability: cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that complainant was admitted on 01.07.2019 at around 3.35 p.m. which was brought by and admitted by his son, Sanjeev. Patient was not brought by anybody else to Shree Hari Hospital. The family member of complainant himself has given non-MLC statement that patient had sustained injury due to slippage of bike and they did not want any police case. Complainant sustained injury on 28.06.2019 and was admitted after 3 days in OP hospital on 01.07.2019. Complainant was diagnosed to have comminuted Multi fragmentary fractures of lower 1/3rd of Right Humerus. Patient was an old known case of chronic Alcoholizm and Chronic Smoker with COPD. Patient was operated according to standard protocols where digital locking plate was meticulously applied. Surgery was done only after taking proper consent and explaining about the risks of surgery and possibilities of complications. These were explained in detail like non-union, infection, Radial Nerve Palsy. As patient is chronic smoker and chronic alcoholic, possibilities of infection and non-union is increased significantly which is further evidenced by plenty of research papers. Patient was given all the required, post operated care in the form of antibiotics, Analgesics, IV fluids etc. Patient was discharged in satisfactory condition where discharge summary, bills and invoice, investigation reports & x-ray were handed over. Total amount of Rs.38,700/- was charged from the patient on account of admission fee, surgery fees, anesthesia fees, hospital stay etc. On follow up patient’s stitches were removed. Patient was doing quite good. Patient did not complain of any pain, swelling etc. Even x-ray done on 01.09.2019 i.e. about 2 months post surgery shows well aligned plate with proper position of bony fragments. Every time the patient came to follow up, he was advised to quit smoking and alcohol, as it hampers bone healing and weakens the bone to a great extent and increase the risk of infection. Patient did not pay any attention to the medical advice and continued smoking and alcohol. He was even advised not to engage in lifting of heavy weight. But he did not follow any above mentioned advice, and thus acted negligently. Patient came to OP no.2 on 28.07.2020 i.e. approximately one year after the surgery with complaint of pain and swelling in Right arm. X-ray right arm done on 27.07.2020 showed displaced fracture with plate. Patient was asked whether he quit smoking and alcohol. He confessed that he did not quit smoking and alcohol and will continue smoking and alcohol in future also. He was even advised not to engage in lifting of heavy weight but did not follow any advice and acted negligently. Patient came to OP no.2 on 28.07.2020 i.e. approximately one year after the surgery with complaint of pain and swelling in right arm. X-ray was done and showed displaced fracture with plate. Patient was advised according to protocol that plate will be removed and external fixator will be applied and in case the bone does not unite after external fixator replating will be done later. All these possibilities were explained in detail to the patient and his attendants. High risk consent for the same has been taken. After taking written high risk consent patient was operated under standard conditions where plate was removed and fixator with proper alignment was applied. Patient was discharged in satisfactory condition on 30.07.2020. The nominal amount of Rs.28,500/- was charged from the patient on account of admission fees, surgery fees, anesthesia charges and hospital stay. This time also, patient did not pay any attention to follow up advice to quit smoking and alcohol and came to OP doctor after 2-2½ months. Patient’s fixator was removed and POP Back slab was applied. Patient was informed that, once the wound heal patient will require fixation by plating. Patient after application of POP Back Slab did not come to follow up and lost to follow up. The patient was operated by the OP doctor diligently, prudently, with reasonable care and skill and as per accepted standards of practice. Inspite of badly comminuted lower 1/3rd Humerus fracture, it was fixed in the best appropriate manner. It is a known medical fact that there are chances of non-union and infection in fractures which are badly comminuted. Chances of non-union and infection increases exponentially in old age, chronic smokers and chronic alcoholics. As smoking and alcohol weakens the bone and creates osteoporosis in which it is very difficult for the screws to get a stronghold to the bone. Patient did not come to OP doctor for follow up approximately for a period of nine months after the first surgery. Patient got engaged in doing all sort of activities without consultation of treating consultant. All these fallacies on the part of the patient himself contributed to non-union of the bone. It is wrong that the hospital charged Rs.1,00,000/- for each surgery. Patient paid Rs.38700/- in first surgery and Rs.28500/- for second surgery. It is further pleaded that the complainant has not submitted any written opinion by Dr. Girdhar that operation conducted by OP no.2 was not done rightly. The surgery conducted on 01.07.2019 was successful and there was no complication. The complainant himself admitted that he consulted Dr. Girdhar on 22.06.2020 i.e. after about one year of the surgery done by OP no.2 and thus it is clear that the complainant has no problem for about one year otherwise he would have consulted other doctor earlier. He complainant knew that the displaced fracture after about one year of initial surgery was due to complainant’s own negligence by not following the medical advice by the doctor. The complainant was also advice not to lift heavy weight by the injured arm but he did not follow the advice and continued his work of farming. There is nothing on record to prove that there is any medical negligence on the part of the OPs no.1 and 2 in treating the complainant. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.
4. OP no.3 filed its separate written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that the complainant leveled baseless allegations against the OP no.2 with biased and prejudiced mind to harass and humiliate in the eyes of general public and to fetch an illegal money from the OP no.2. OP no.3 is insurance company and only professional indemnify the Doctor and medical practitioner subject to monetary limitation (insured amount) if he has committed any negligence in his profession. Till date the OP has not received any claim intimation under the policy issued for covering the OP no.3 under professional indemnity for doctor and medical practitioner. OP no.2 is not covered by the aforesaid policy if it is established that the practicing doctor has committed any negligence in his profession. It is further pleaded that complainant alleged that the accident held on 28.06.2019 with an unknown truck in which the complainant sustained fracture on his right arm. The copy of FIR/DDR qua the said accident is not placed on the record till date. The kin of complainant namely Parveen himself has given non-MLC statement that the complainant has sustained injuries due to slippage of bike and he does not want to police case. Complainant alleged that he was shifted to civil hospital, Karnal where he was medico legally examined but complainant has not supplied the copy of his MLR. The complainant is required to submit the list of patients who are in queue for operation purposes in civil hospital, Karnal. It is further pleaded that OP no.2, Dr. Tarun Goyal is a qualified and experienced doctor and is duly registered with the State Medical Council. Dr. Tarun Goyal is a well qualified (MBBS, MS-Ortho, DNB-Ortho) and Experienced Orthopaedic Surgeon duly registered with State Medical Council. He did his MS (Ortho) from prestigious PGIMS Rohtak in the year 2003. Post qualification, he worked as senior resident in PGIMS Rohtak from 2003 to 2005, Senior resident in MAMC, New Delhi from 2006 to 2007. He did fellowship in spine surgery from Amrita Institute Kochi in 2005-2006. He is an active practitioner and have gone enough experience of about 18-20 years in dealing and treating complex trauma patients. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.
5. Parties then led their respective evidence.
6. Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of discharge summary dated 01.07.2019 Ex.C1, copy of OPD slip Ex.C2, copy of test of culture and sensitivity Ex.C3, copy of discharge summary dated 28.07.2020 Ex.C4, copy of medical bills Ex.C5 to Ex.C11, copy of application to SP Ex.C12, copy of letter of Superintendent of Police Ex.C13, x-ray films Ex.C14 to Ex.C22 and closed the evidence on 05.07.2023 by suffering separate statement.
7. On the other hand, learned counsel for the OPs no.1 and 2 has tendered into evidence affidavit of Dr. Tarun Goyal Ex.OPs no.1 and 2/A, copy of Degree Ex.OP1, copy of insurance policy Ex.OP2, copy of treatment record Ex.OP3, copy of medical literature Ex.OP4 and closed the evidence on 05.02.2024 by suffering separate statement.
8. Learned counsel for the OP no.3 has tendered into evidence affidavit of Divyam Suri Ex.OP3, copy of professional indemnity for doctor and Medical Practioner Ex.OP3/1 and closed the evidence on 05.09.2023 by sufferings separate statement.
9. We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.
10 Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that on 28.06.2019, complainant met with an accident and sustained fracture on his right arm. Initially, complainant was shifted to the Civil Hospital, Karnal and thereafter admitted in the hospital of OPs no.1 and 2 where the OP no.2 conducted the surgery of the right arm twice and charged Rs.2,00,000/- but OPs did not properly operated the complainant. On 22.06.2020, the complainant visited Dr. Girdhar, Ortho Surgeon of Girdhar Hospital, Karnal for getting the opinion with regard to the surgery, the said doctor opined that the surgery has not been properly conducted by the OP no.2. Due to the said carelessness and negligent act of the OP no.2, complainant has become permanent disabled from his right arm and thus there is a medical negligence on the part of the OPs and lastly prayed for allowing the complaint.
11. Per contra, learned counsel for the OPs no.1 and 2, while reiterating the contents of written version, has vehemently argued that complainant sustained injuries in his right arm due to accident. On 01.07.2019, the surgery was conducted according to standard protocols. Only an amount of Rs.38,700/- was charged from the complainant. Complainant again came to hospital of OPs on 28.07.2020 i.e. approximately one year after the surgery with complaint of pain and swelling in Right arm. Patient did not quit smoking and alcohol and also kept lifting the heavy weight. The second surgery was conducted and plate was removed and an amount of Rs.28,500/- was charged from the complainant but this time also complainant did not pay any attention to follow up advice of the OPs. The chances of non-union and infection increases exponentially in old age, chronic smokers and chronic alcoholics. Complainant did not come to OP doctor for follow up treatment for a period of nine months after the first surgery. There is nothing on record to prove that there is any medical negligence on the part of the OPs and prayed for dismissal of the complaint.
12. Learned counsel for the OP no.3 also argued the case on the same line as argued by the learned counsel for OPs no.1 and 2 and prayed for dismissal of the complaint.
13. We have duly considered the rival contentions of the parties.
14. The complainant has alleged that there was medical negligence on the part of the OPs while conducting the surgeries upon his right arm. The onus to prove the medical negligence while conducting the surgeries by the OPs was relied upon the complainant but complainant has miserably failed to prove his case by leading any cogent and convincing evidence. There is nothing on the file to prove that the OPs were negligent while conducting the surgery upon the complainant. Complainant has alleged that Dr. Girdhar, Ortho Surgeon of Girdhar Hospital, Karnal had opined that there was medical negligence while conducting the surgeries upon the complainant but complainant has not placed on file alleged opinion given by said doctor.
The complainant has not produced any such evidence vide which it can be prove that OPs were negligence in conducting the surgeries.
15. During the course of arguments, Dr.Tarun Goyal (OPs) was present and submits that he was/is ready to conduct the surgery on the right arm of complainant again free of costs if the complainant follow his advice. Complainant was also present in the Commission but he had flatly refused to take the treatment from said hospital. Complainant also admitted that he occasionally smokes and consumes alcohol. Thus, it proved that complainant has not followed the advice of the OPs after surgery.
16. The complainant neither placed on file any expert opinion nor made any prayer for constitution of the Board of Doctors to opine whether the OPs were negligent or not. The experts could have proved if any of the doctors in the Hospital providing treatment to the patient were deficient or negligent in service. The complainant has not produced any such evidence vide which it can be proved that OPs were negligence in conducting the surgeries. The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures. In this regard, we placed reliance on the judgment case titled as C.P. Sreekumar (Dr.), Ms (Ortho) Versus S. Ramanujam, decided on 01.05.2009 wherein Honb’ble Supreme Court of India has held that the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.” We place reliance on the judgment titled as Martin F. D'Souza v. Mohd. Ishfaq, decided on 17.02.2009 wherein the Hon’ble Supreme Court of India has held as under:-
“40.Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
xxx xxx xxx
42. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalised for losing a case provided he appeared in it and made his submissions.”
Furthermore, negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. Further in Jacob Mathew v. State of Punjab and Anr.the Hon’ble Supreme Court of India has held that decided on 05.08.2005 the simple lack of care, an error of judgment or an accident, is not a proof of negligence on the part of a medical professional. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alter- native course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, especially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of
18. In another judgment titled as Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others decided on 30.08.2000, wherein Hon’ble Supreme Court held that a complaint was filed attributing medical negligence to a doctor who performed the surgery but while performing surgery, the tumour was found to be malignant. The patient died later on after prolonged treatment in different hospitals. The Hon’ble Supreme Court of India has held that Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks. It is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used. Further, in case titled as Dr. Harish Kumar Khurana v. Joginder Singh & Others, decided on 07.07.2021 Hon’ble Supreme Court of India has held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence.
19. In Aparna Pandey & Anr. Versus Indraprastha Apollo Hospitals Delhi in CC no.161 of 2008, wherein Hon’ble National Commission held that “Negligence-A professional may be held liable for negligence on one or two findings; either they did not possess the requisite skills that they claimed to have, or they did not exercise, with reasonable competence in the given case, the skill which they did possess.
Proof of medical negligence-OP no.2 performed liver transplantation- alleged that during the surgery, patient suffered significant blood loss, metabolic acidosis and was kept in ICU-patient became critical, other team of doctors hurriedly performed second surgery-despite 2nd operation, bleeding continued-Renal haemodialysis performed-patient died allegedly due to fungal infection-gangrene-apparent that the patient was treated by a multi-disciplinary team of doctors-patient developed necrosis/gangrene and septicaema which could not be attributed to negligence- expert report of the medical Board mentioned that Apollo Hospital and others were not negligent in treatment-complainant failed to conclusively establish deficiency in service and medical negligence on the treating doctor and the hospital-complaint dismissed”.
20. Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that there is no medical negligence on the part of the OPs while conducting the surgeries upon the complainant.
21. Thus, in view of the above discussion, the present complaint is devoid of any merits and deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.
Dated: 03.07.2024
President,
District Consumer Disputes
Redressal Commission, Karnal.
(Vineet Kaushik) (Dr. Suman Singh)
Member Member
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