Haryana

Ambala

CC/285/2020

Parmesh Kumar - Complainant(s)

Versus

The Ojas Super Specialty Hospital - Opp.Party(s)

Sandeep Kashyap

01 Aug 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	285 of 2020
Date of Institution	:	20.11.2020
Date of decision	:	01.08.2024

Parmesh Kumar aged about 38 years S/o Sh. Dharam Pal R/o village Panjlasa, Teshil Naraingah, District Ambala thought his legal heirs.

(i) Rimpi Devi widow of Late Parmesh Kumar

(ii) Kaveri (daughter)

(iii) Ayush,

(iv) Mayank, both minor sons of Parmesh Kumar,

(v) Minor daughter and son through their mother Rimpi Devi widow of Late   Parmesh Kumar,

All R/o Village Panjlasa, Teshil Naraingah, District Ambala.

          ……. Complainants

Versus

1. The Ojas Super specialty (A unit of Ojas Medical service Pvt. Limited) at H 1, Sector-26, Panchkula Haryana-134116, now known as Alchemist Ojas Hospital through its Head of Department/ Authorized Signatory.
2. Dr. S. Singla, Incharge of the Department of orthopedics & joint Replacement of Ojas Super specialty (A unit of Ojas Medical service Pvt. Limited) at H 1, Sector-26, Panchkula Haryana-134116 now known as Alchemist Ojas Hospital
3. United India Insurance Company Ltd. through its opposite Municipal Committee, Ambala Cantt through its Authorized Signatory

   ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                      Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Sandeep Kashyap, Advocate, counsel for the complainant.

                    Shri Amandeep Singh Bawa, Advocate, counsel for OP No.1.

                    Shri Jatinder Kumar, Advocate, counsel for OP No.2.

                    Shri Dev Batra, Advocate, counsel for OP No.3.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

a) To reimburse/return the amount of Rs.65,000/- along with interest @ 12% P A. (the amount, which the OPs  dishonestly have taken from the complainant as expenses of treatment).

b) To pay a sum of Rs 4,50,000/- on the account of loss of business to the complainant as well as the expenses of treatment, that has to be borne by the complainant in Saket Hospital due to the imperfect service of the OPs and for uncalled litigation.

c) To pay a sum of Rs 5,00,000/- as compensation on the account of mental as well as the physical harassment to the complainant

                                      OR

Grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that OP No.1, is a "OJAS SUPER SPECIALTY HOSPITAL" at H1, Sector-26 Panchkula, Haryana -134116 and is being managed and run, as a unit, by Ojas Medical Service Private Limited, OP No 3 is the insurer of the OPs  no I and 2. OP No.2, is an employee of OP No.1 and is performing his duty under its directions and observations. In the month of October 2018, the complainant visited the Orthopedic and Joint Replacement Department of the OP No.1 and met with the OP No.2 and told him, that he has swelling and unbearable pain in his right thigh and hip. The complainant was examined by OP No.2, and after examination, the OP No.2 told to the complainant that, the complainant has a fracture in his right hip and an urgent surgery has to be done on his hip, otherwise the complainant will have to face dangerous consequences. When the complainant came to know that, he has a fracture in his right hip, he was shocked for some time, but by handling himself he requested to the OP No.2 that, this hospital is a big and costly and he cannot afford the expenses of treatment of this hospital. OP No.2 told the complainant that this hospital is a Super Specialty Hospital with all facilities as required for a better surgery and treatment will be provided to him at the cheapest cost. OP No.2 assured the complainant that he himself is the In-charge of the Department of Orthopedics and Joint Replacement and expert in his profession, and the surgery will also be done by him and after surgery the complainant will not face any problem in future. On the inducement of the OP No.2, the complainant agreed for surgery for which OP No.2 quoted approximate Rs.90,000/ for all expenses of surgery including all tests, medicine, bed charges, blood and best instrument/plate that has to be implanted in the hip & thigh etc., complainant told him that he cannot afford to pay the said amount then OP No.2 told him that a discount will be given to him. He was admitted in the OP No.1 hospital on 25-10-2018, thereafter on 26-10 2018, he was operated by the OP No.2 and an instrument e.g., DCS plate was implanted in the right hip of the complainant. Thereafter the complainant was assured by the OP No.2 that the DCS Plate implanted is very costly, unbreakable and best one. Thereafter, the complainant was discharged on 28-10-2018. When the complainant went to the reception counter of the  OP No.1 and asked for Bill of his treatment, then he was provided a Bill of Rs.87,231/- from the counter. The complainant claimed discount then OP No.1 gave discount of Rs.22,231/- and he paid an amount of Rs.65,000/-, by cash in installments to it.  After surgery the complainant was lying on the bed for rest for four months and during this period he used to visit the hospital for checkup and regularly complained for a usual pain, but in the first week of March 2019, the complainant again felt unbearable pain in his right hip and thigh. On 05-03-2019 he approached the   OP No.2 and told him about his unbearable pain, whereafter, OP No.2 recommended an X-ray. After X-ray, he found that the instrument DCS plate implanted by him had been broken, then having no proper answer, he recommended a fresh surgery and told the complainant to pay Rs.65,000/- again for fresh operation. Complainant asked the OP No.2 why he has to pay expenses for the fresh surgery as the instrument has been broken itself then OP no.2 got angry and misbehaved with him and refused to help him. Thereafter, the complainant having no other way at that time went to the SAKET HOSPITAL Sector 2, Panchkula, where he was again examined and operated and he again had to pay more than Rs.50,000/- for another surgery, and it has happened, only due to the deficient services on the part of the OPs and also medical negligence. OPs No.1 and 2 have failed to provide a better treatment to the as they were alleged and they also failed to perform their duty.  Under those circumstances, the complainant had also served a legal notice through his counsel on 24-06-2019 to compensate him but to no avail. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections to the effect that the complaint filed by the complainant is barred by limitation, not come with clean hands and suppressed the material facts and distorted the versions of the facts, bad for mis-joinder of necessary parties etc.  On merits, it has been stated that Ojas is a super specialty hospital. Complainant was admitted on 25.10.2018, on the day of admission he underwent regular investigations pre anesthesia check-up and only after proper fitness test he was posted for surgery on 26.10.2018. Surgery was done by OP No.2, who is a senior consultant orthopedic surgeon and joint replacement surgeon. Surgery was done without any complications and complainant was discharged on 28.10.2018. Bill of Rs.87,231/- was raised but OP No.1 gave discount of Rs.22,231/- and complainant paid Rs.65,000/- by cash in installments. For the first time, on 05.03.2019 i.e four months after the surgery, complainant came with the unbearable pain in his right hip and thigh. This indicate that patient might have born extra weight which lead to severe pain and resulted into breaking of the DSC plate. There is no iota of evidence which shows any negligence on the part of the OP No.1. It is further stated that the patient was treated with utmost care and skill and good a DCS plate was implanted in the complainant’s hip by a skilled doctor i.e OP No.2, who is a senior consultant orthopedic surgeon and joint replacement surgeon. There was no lack of professional assistance and the best equipment was used in the process of surgery. Complainant suffered issues with the surgery due to his own negligence.  Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with exemplary costs.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections to the effect that the present complaint is wholly misconceived, groundless, frivolous, vexatious; the complainant has totally failed to explain "as to how he is involved and the OPs were negligent"; no cause of action arose against the OPs; this complaint is not maintainable, the complaint is liable to be dismissed for non-joinder of necessary parties etc.  Ojas Super Specialty Hospital is well reputed hospital in the region, which is now known as "Alchemist Ojas Hospital" which offers a wide range of best healthcare services to provide proper care and treatment to the patient. On merits, it has been stated that OPs No.1 and 2 are insured with United India Insurance Company Ltd, vide (Errors & Omissions Policy) Policy No. 0412002717P118430262 for the period from 07/02/2018 to 06/02/2019. OP No.2 is a well qualified and a reputed doctor, with substantial good will and experience of long standing successful medical practice and is attached & providing professional medical consultancy to the patients with Ojas Super Specialty Hospital since the day of its opening i.e. since January 2021. OP No.2 is also insured with United India Insurance Company Ltd, vide (Professional Indemnity) Policy No. 0412002718P102241407, for the period from 14/05/2018 to 13/05/2019.  OP No.2 is a qualified orthopedic surgeon& is working with OP No.1, as senior consultant orthopedic surgeon. On examining the patient/complainant, he was diagnosed Right Hip fracture and was advised for necessary operation. The said DCS operation (Dynamic Condylar Screw) is the most preferred treatment which every orthopedic surgeon performs for such fracture. Further it is submitted that DHS/DCS surgery requires a lot of post operative care since healing of fracture takes lot of time. OP No 2, instructed the complainant to avoid walking & to avoid load bearing & if necessary to walk with support only. The surgery of plate removal and DCS fixation of right hip was performed on 26.10.2018 and the complainant discharged on 28.10.2018. The patient was advised to follow up after 5 days, as even detailed in discharge summary attached herewith. But patient never reported back and suddenly came back with complaint of unbearable pain in his right hip and thigh on 05.03.2019, which is four months after the surgery. This indicates careless attitude of the patient & the patient might have born extra weight/ or possible retrauma, which lead to severe pain and this resulted into breaking of the DCS plate. There is not even an iota of evidence that can show any negligence on the part of OP No.2. The issue of medical negligence is now well established by number of judgments of rendered by Hon’ble Supreme Court and Hon’ble National Commission. In case titled as Martin F. DSouza vs. Mohd. Ishfaq AIR 2009 SC 2049 the Honble Apex court observed that "Simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway 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. Single failure may cost him dear in his lapse". In the case Gaurav v Escorts Medical Centre Ltd & Anr. CPR 182 (NC) it was observed that "Medical opinion may differ with regard to course of action to be taken by a doctor treating a patient, but as long as a doctor acts in manner which is acceptable to medical profession and Court finds that he has attended on a patient with due care, skill and diligence and if the patient still does not survive or suffer a permanent ailment, it would be difficult to hold doctor to be guilty of negligence". In another case Dr. Biswanath Das v Bijoy Sinha Roy and Ors 2008 (1) CPR 282 (NC) it was observed as "The doctors have acted in accordance with the practice accepted as proper by the authors of medical books cannot be held guilty of negligence". The charges for the surgery were explained to the complainant at the reception by the staff of OP No.1 and the admission consent was signed by the patient and by his relative i.e. one Sh. Subash Chander. The surgery was done without any complications. The fracture was reasonably fixed in acceptable position with DCS plate and screws. X-rays were handed over to the patient party. There is no negligence, deficiency of service or unfair trade practice on the part of the OPs. No doctor at anywhere has pointed out any negligence on the part of the OPs. The patient was discharged on 28.10.2018 in satisfactory condition and was provided with a bill of Rs. 87,231/- from the counter of OP No.1 and was given discount of Rs 22,231/-. Rest of the averments of the complainant were denied by OP No. 2 and prayed for dismissal of the present complaint with costs.
5.           Upon notice, OP No.3 appeared and filed written version wherein it raised preliminary objections to the effect that this complaint has been filed just to injure the reputation of the Doctor as well hospital & to extract money by one mean or the other from the OPs No.1 and 2;  OP No.3 is just an alleged insurer of  OPs No.1 & 2; no policy details have been supplied & hence not yet been verified; all claims are subject to policy terms & conditions; the complainant has not paid any premium to OP No.3, therefore, there is no privity of contract between them; the complainant is not a consumer of OP No.3 etc.  On merits, it has been stated that it has been gathered from the O.P No 1 that "The surgery was performed on 26.10.2018 however the patient came back to hospital on 05.03.2019, with complaint of pain in his right hip and thigh, which is four months after the surgery. This indicated that the patient might have born extra weight or there may be several other negligence issues by the patient himself, which might resulted into breaking of the DSC plate & had lead to pain. Truth is not being detailed. Even the patient had hidden the history of his previous surgery of same side in 2006. At that time patient underwent plating femur right side. It is false that the patient complained of any post-surgery pain before 05.03.2019. The complainant underwent a fresh surgery and was charged for it because damage to the plate was caused by the patient and not due to the negligence of OP 2. There is not even an iota of evidence that can show any negligence on the part of the answering OP." The patient was told about the pros and cons of the surgery and was thoroughly explained the risks involved in the same. No guarantees or assurances were ever given by hospital or the doctor. Patient was posted for surgery on 26.10.2018 and the surgery was done without any at complications by the well qualified doctor. No doctor anywhere has pointed out any negligence on the part of the OPs No.1 and 2. The patient was discharged on 28.10.2018 in satisfactory condition and was provided with a bill of Rs.87,231/- from the counter of OP No.1 and was given discount of Rs. 22,231/- and he paid Rs.65,000/- to the OP No.1. The surgery was performed on 26.10.2018 however the patient came back to hospital on 05.03.2019, with complaint of pain in his right hip and thigh, which is four months after the surgery. This indicated that the patient might have born extra weight or there may be several other negligence issues of the patient himself, which might resulted into breaking of the DSC plate, which lead to pain. Truth is not being detailed. Even the patient had hidden the history of his previous surgery of same side in 2006. At that time patient underwent plating femur right side. It is false that the patient complained of any post-surgery pain before 05.03.2019. The complainant underwent a fresh surgery and was charged for it because damage to the plate was caused by the patient and not due to the negligence of OP No.2. There is not even an iota of evidence that can show any negligence on the part of OP No.3.  Rest of the averments of the complainant were denied by OP No.3 and prayed for dismissal of the present complaint.
6.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure C-X alongwith documents as Annexure C-1 to C-38 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP No.1 tendered affidavit of Dr. Harish Gupta, Director, Ojas, The Super Specialty Hospital Sector-26, Panchkula, Haryana as Annexure OP1/A alongwith documents as Annexure OP-1/1 to OP-1/4 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered affidavit of Dr. Suresh Singla son of Shri Kashmiri Lal, C/o Ojas, The Super Specialty Hospital, Sector, 26, Panchkula, Haryana as Annexure OP 2/A alongwith documents as Annexure OP2/1 to OP2/7 and closed the evidence on behalf of OP No.2. Learned counsel for OP No.3 tendered affidavit of Tajinder Singh (A.O)-United Insurance Company Ltd. D.O, Ambala Cantt. as Annexure OP-3/A alongwith documents as Annexure OP-3/1 to OP-3/2 and closed the evidence on behalf of OP No.3. 
7.           We have heard the learned counsel for the parties and have carefully gone through the case file and also written arguments filed by the learned counsel for the OP No.3.
8.           Learned counsel for the complainant submitted that there was a medical negligence on the part of OPs No.1 and 2, while treating the complainant as the DCS plate was not inserted properly in the right fractured hip of the complainant, as a result whereof, it cracked, and he again underwent treatment for the same in the Saket Orthopedic Hospital, Panchkula, Haryana. He further submitted that under these circumstances, OPs No.1 and 2 are liable to compensate the complainant for the medical negligence and deficiency in rendering service.
9.           On the contrary, learned counsel for OPs No.1 and 2 submitted that except bald assertions, the complainant has failed to place on record any evidence to prove that there was any medical negligence on the part of OPs No.1 and 2. The mere fact that the complainant took some treatment from Saket Orthopedic Hospital, Panchkula, Haryana is not a ground to say that there was medical negligence on the part of the OPs No.1 and 2.
10.           Learned counsel for OP No.3 submitted that since the complainant has failed to prove his case by way of placing on record any cogent and convincing evidence to hold OPs No.1 and 2 medical negligent, as such, this complaint deserves to be dismissed, against them and therefore no liability can be fastened upon OP No.3, especially, when no allegations of deficiency in service or adoption of unfair trade practice have been leveled against OP No.3.  In support of his contention, the learned counsel for the OP No.3 has placed reliance on the judgments rendered by the Hon’ble Supreme Court of India, New India, in the case of Martin F.DSouza Vs. Mohd. Ishfaq AIR., (2009) SC 2049, and Jacab Mathew Vs. State Of Punjab (2005)6 SCC 1 and Sheuli Das Vs. Dr. Kanchan Bhattacharya & Anr., (decided on 01.12.2022) and Gaurav Vs. Escorts Medical Centre Limited & Another (decided on 07.09.2002) by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi.
11.           The grievance of the complainant is that OPs No.1 and 2 are guilty of medical negligence, as they failed to operate him properly i.e. the DCS plate was not inserted properly in the his right fractured hip, as a result whereof, it cracked within a period of 4 months and as such, he has to again get operated his right fractured hip from Saket Orthopedic Hospital, Panchkula, Haryana. Under these circumstances, the moot question to be decided is whether the complainant has been able to prove his case qua medical negligence or not. The Hon’ble Supreme Court of India in M.A. Biviji v. Sunita & Others (Civil Appeal No. 3975 of 2018) decided on  19 October, 2023  has held that there is a requirement of a higher burden to establish medical negligence on the part of treating doctor. It may be stated here that no document has been placed on record by the complainant to establish that the OPs No.1 and 2 did not insert the DCS plate properly in the right fractured hip of the complainant, as a result of whereof, it cracked and the same needed replacement. This fact also cannot be ignored that there are many other factors for failure of implant, as such, in the absence of any cogent and convincing evidence, the doctor who conducted the surgery, cannot be blamed.  In the case of Sheuli Das Vs. Dr. Kanchan Bhattacharya & Another (Supra), it has been held by the Hon’ble National Commission that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. In WP (M/S) No. 1114 of 2019, Nisha Mathur vs. Medical Council of India and ors., decided on 06.11.2019, the Apex Court observed that the facts of each case have to be examined independently and that the mere fact that the doctors conducted second surgery or treatment cannot be called as an act of medical negligence. The case of the complainant is entirely based upon OPD receipts and payment receipts issued by the Saket Orthopedic Hospital, Panchkula, Haryana Annexure C-23, C-29 to C-37) for the period from 02.04.2019 to 19.08.2019.  We have perused these documents but did not find anything wherefrom it could be established that the OPs No.1 and 2 did not insert the  DCS plate properly in the right fractured hip of the complainant, as a result whereof, it cracked and the same needed replacement. Even this much has not been established from the said documents that DCS plate has again been implanted in the right fractured hip of the complainant by the doctors of the Saket Orthopedic Hospital. When the OPs No.1 and 2 have taken a specific plea that there was no medical negligence on their part then to rebut the same it was the bounded duty of the complainant, to provide some independent medical experts report of a qualified doctor but nothing of that sought was done by the complainant. Hence, in the absence of any cogent and convincing evidence it cannot be said that OPs No.1 and 2 are guilty of medical negligence.  
12.           In this view of the matter, we do not hesitate to conclude that complainant has failed to prove that there was any medical negligence on the part of the OPs no.1 and 2.  The complaint filed by the complainant is devoid of merits, consequently, we dismiss the same. The parties are left to bear their own costs. Certified copies of this order be sent to the parties concerned, as per rules.  File be annexed and consigned to the record room.

Announced:- 01.08.2024.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President