BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.32 of 2017
Date of Instt. 07.01.2017
Date of Decision: 11.03.2020
Mrs. Sheetal aged about 32 years [UHID No.PIMS O163058, document No.PIMS PAT 201600094362/1] w/o Vipan Kumar resident of House No.51, Bohar Wala Mohalla, Near Singh Sabha Gurudwara, Maqsudan, Jalandhar, Punjab.
..........Complainant
Versus
1. The Punjab Institute of Medical Sciences, Through its Registrar/Director/Managing Director/Principal Officer, Garha Road, Jalandhar, Punjab.
2. Dr. Vishal Moudgil, Associate Professor, Unit-II, Department of Orthopedics, PIMS, Garha Road, Jalandhar, Punjab.
3. Resident Director, PIMS Garha Road, Jalandhar, Punjab.
4. Director Principal, PIMS Garha Road, Jalandhar, Punjab.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Sanjeev Sharma, Adv. Counsel for the Complainant.
Sh. I. S. Bhatia, Adv. Counsel for the OPs No.1, 3 & 4.
OP No.2 died.
Order
Karnail Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that she was suffering from foot drop right side along with numbness and pain. However, the complainant was working as teacher and also doing day to day chores and household work very well in a normal way of life.
2. That on 11.06.2016, the complainant visited PIMS for some pain in her right leg, wherein the complainant met the OP No.2, complaining about the pain in her right leg. In turn the OP No.2 advised the complainant that there was shortening of right leg and also told “Kulha Puuri Tarah Se Savasth Nahi Hai”. For this, the OP No.2 advised the complainant to opt for total hip replacement surgery (hereinafter referred to as THR). Further, the OP No.2 advised the same in a camp of some medical prosthesis company in PIMS premises and the OP No.2 allured the complainant that in case, the file is made and the complainant’s name is registered on the same day i.e. 11.06.2016 then, the total cost of THR will be reduced from Rs.1.50 Lacs to Rs.1.20 lacs and the complainant will be saving about Rs.30,000/- in the surgery. Further, the OP No.2 also perplexed the complainant stating that if THR has not been carried out, in future the spinal cord of the complainant will be badly damaged resulting into total loss of movement of the complainant. The complainant telephonically discussed the matter with her family members, who in turn consented for the same. That the complainant was admitted with the OPs on 11.06.2016 and the date of operation was fixed on 13.06.2016 for THR/Arthroplasty surgery. Thereafter, pre-operative tests and examination like blood test, sugar test, ECG were carried out in the hospital PIMS. That on 13.06.2016 the complainant was moved to operation theatre, wherein the complainant was administered with spinal/epidural anesthesia for surgery resulting into numbness in the lower half portion of the complainant below waist. In operation theatre, the complainant was very well in senses and the complainant heard that in the operation theatre, music was being played and doctors alongwith other OTA staff were using very indecent language. The OP No.2 was asking Operation Theatre Attendants (OTAs) for femoral head of particular size and in turn one of the OTA replied that femoral head of same size was yet not readily available and was being going to be arranged by the staff. One OTA was regularly calling for femoral head valve to some other person upon which doctor annoyed. The speaker phone of the mobile was turned on by the OTA and the person on the other side stated that he was held up in the traffic jam at PAP Chowk Jalandhar. The OP No.2 stated that due to incision, there was bleeding and the blood level was lowering due to oozing of blood and the same may endanger the patient life. The OP opted to fix same available size femoral head Ball readily available in OT. One of the nurse in the OT was heard by the complainant speaking to the OP No.2, that for affixing prosthesis, excessive amount of ceramic cement has been put into joint where the prosthesis were to be positioned and affixed and that may be harmful. Thereafter, the wound was stitched and dressed by the OTAs. That soon after the operation in the recovery room, the complainant was put on oxygen. In the evening at about 05:00 PM, the complainant was shifted to hospital ward from recovery room, where the complainant remained continuously suffering and crying with severe pain. The attending family members were shocked when they observed that the right leg was further shortened post operation. None of the doctor attended the complainant for about 4 days in the Ward rather pain killer pills/antibiotics/injections were administered to the complainant. There was no sensation or feeling in the right foot of the complainant, which was operated by the OPs.
3. That the complainant’s husband enquired about the reason for pain and further shortening of the leg, the OP No.2 informed that while operating, a wound and a nerve was to be pushed and the pain is due to only this reason. Every time at the time of dressing, the staff was being asked why there was no feeling or sensation in lower part (below knee) of right leg, which was operated and in turn attending nurses replied that the complainant should ask the same from the OP No.2. For this reason, on third day after operation, the complainant suffered a lot of stress and tension resulting into numbness in her face and hands like a patient of paralytic attack. On fourth day after operation, the OP No.2 attended the complainant, the patient. The OP No.2 forcefully made the complainant to stand and put weight on operated right leg resulting into unbearable severe pain and the complainant started crying and weeping. The OP No.2 advised that the leg will come in proper functioning after some period with the passage of time and advised for oil massage to the leg. Thereafter, after six days, the complainant was discharged from the hospital, whilst the complainant was crying with pain and the request of the complainant and her family members for keeping the complainant for further days as indoor patient was refused by the hospital stating that for readmission after six days of the operation, new file/admission was required incurring new expenses.
4. That after seven days of surgery, twenty stitches were removed by a medical staff boy sent by the hospital for removal of stitches by the OP No.2 and the person stated that he was working as driver with the OP No.2 and charged Rs.2000/- from the complainant. Thereafter, remaining stitches were removed on 15th day after operation, but the leg was not working and there was severe pain with burning sensation in the upper part of the leg as well as on the skin. The complainant, her husband and her father tried to contact the OP No.2 several times, but the OP No.2 avoided to meet the complainant on one pretext or the other. However, after the operation, the complainant virtually remained in a hell with severe pain and inflammation. Ultimately, when the complainant’s father met the OP No.2, who stated that I am not a God and whereupon the father of the complainant was shocked whilst listening to such words. Thereafter, the complainant consulted several other doctors and ultimately, no option was left with the complainant except to get a treatment from PGI, Chandigarh and accordingly, complainant reached on 01.08.2016 in PGI, Chandigarh. After examining X-ray and other related medical record, the doctors asked about the Surgeon, who had conducted the THR surgery on the right leg of the complainant. It is stated that a simple operation has been made critical one. The complainant was admitted in PGI, Chandigarh vide CR No.201604055004 on 01.08.2016 and thereafter, on 04.08.2016, the complainant was again operated for revised RT THR (failure). After operation, the complainant was told that the surgery conducted by the OP No.2 and the attending staff of PIMS was being conducted with sheer gross negligence as the replacement was wrongly positioned above Acetabulum and not at proper place and the same is evident from original X-rays. The positioning of femoral metal stem/head and acetabular tap in Acetabulum with ceramic cement was wrongly positioned and was on much upper vertical side than the normal and other left side. Further, they also stated that during the earlier surgery being conducted by the OP, the sciatic nerve of the complainant was badly damaged due to this one finger of right foot of the complainant will not be working for rest of her life.
5. That it has also been stated by the doctors at PGI, Chandigarh that due to fixing of larger size of femoral head Ball and Acetabular component in acetabular rim, the rim was fractured/torn and for this reason in the second surgery by the PGI, Chandigarh, all the proximal stem/distal stem with femoral head in dual mobility cup were to be repositioned/fixed in reinforcement cage by acetabulam reconstruction due to fracture. The second surgery was revision failure total hip replacement done earlier on 04.06.2016. They have also stated that due to surgery being conducted by the OP No.2, a pseudo acetabulum was formed on the right side, which was higher than normal side (left). It was also opined that right side Sciatic nerve was also permanently damaged, to this effect a certificate was issued. During the surgery being carried out by the OP, the replacement of Femoral head ball was not at acetabulum where that was to be placed for mobility, but was affixed placed at bone [much above the acetabulum] and X-rays being taken after surgery coupled with the report of PGI Doctors proves the very fact of negligence. In other words, the metal femoral head was wrongly positioned in the surgery of OP No.2. Further, at the young age of 32, cemented mixture for adjusting the Ball/Internal head is not advised and the same is meant for older age patients. The evidence in the form of X-rays, medical opinions and reports proves beyond any reasonable doubt that the surgery conducted by the OP No.2 was being conducted in most negligent manner. That being orthopedic surgeon, a specialist, more skill of reasonable degree is expected than a normal surgeon. Due to gross negligence of the OP No.2 and OTAs, the complainant has suffered a lot of mental, physical pain and agony besides suffering a permanent impairment of fingers of right foot of the complainant and as such, the instant complaint has been filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay compensation of Rs.5,00,000/- as a recovery of expenses incurred in operations treatment at hospitals, ambulance charges, special diet Rs.2,00,000/- as mental and bodily pain suffered by the complainant. Rs.2,00,000/- on account of mental pain, agony suffered by family members and time spent at hospitals by attendant, husband and family members of complainant and Rs.50000/- as litigation charges from all the OPs and further, OPs be directed to pay Rs.10,00,000/- as damages on account of permanently impairing fingers of right foot due to damage of Sciatica Nerve of the complainant and further prayed that any relief for which the complainant is entitled.
6. Notice of the complaint was given to the OPs and accordingly, OP No.2 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that there is no specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by the complainant against the replying respondent No.2 and the complainant has totally failed to explain ‘as to how he is involved and the respondent No.2 were negligent’, hence the complaint is liable to be dismissed qua OP No.2. It is further alleged that the complaint has been filed by the complainant with false allegations of negligence by claiming exorbitant amounts without any basis, just to waste the valuable time, harass and defame the respondent No.2. Although, it is fact that the respondent No.2 has not committed any negligence in this case, while providing the said treatment, hence, complaint is liable to be dismissed and further alleged that no cause of action has arisen qua OP No.2 to file the instant complaint and even the complaint is bad for non-joinder and mis joinder of necessary parties, as the respondent No.2 is insured with “The Oriental Insurance Company Ltd.” through its professional indemnity policy and further alleged that the respondent No.2 is well qualified, reputed and respected doctor and he has been in practice for ten years and has done various such procedures and had various trainings for the same and further submitted that the patient was explained the complications of the surgery. All the pros and cons were duly informed to the patient before the surgery and even before the surgery, all the size and shapes of implants were available in the operations theatre. THR surgery was done diligently, prudently, with utmost due care and caution, which is done in all patients, the patient was regularly visited postoperatively. The patient was asked to arrange for two units of blood before the surgery, but complainant arranged only one unit of blood. The patient was regularly attended by the doctors, nurses and hospitals staffs. If the patient developed paralysis and numbness, then how can she feel severe pain? Every complication is not negligence. The patient was asked to walk as per the postoperative norm. After this patient lost to follow up and never came back. Everything the respondent No.2 has done was done diligently, prudently, with utmost due care and caution in treating the said patient i.e. complainant and as such, there was no negligence at least from their side. On merits, it is admitted that the complainant was remained admitted and she got operated, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
7. OPs No.1, 3 and 4 filed its separate joint written reply and almost took same preliminary objections as taken by OP No.2 and just for repetition, same is to be read as preliminary objections of OPs No.1, 3 and 4. Further plea has been taken by OPs No.1, 3 and 4 that OP No.1 PIMS Medical and Education Charitable Society is a Charitable Welfare Society and the complainant is not a consumer. On merits, most of the paras have been replied that the same related to OP No.2, but the admission and operation of the complainant in the hospital of OP No.1 is not denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
8. Replication not filed.
9. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CW1/A and affidavit of Vipin Kumar as Ex.CW2/A alongwith some documents Ex.C-1 to Ex.C-87 and further tendered an affidavit of Dr. Vijay G. Goni as Ex.CW3/A and closed the evidence.
10. Similarly, counsel for the OPs No.1, 3 & 4 tendered into evidence affidavit of Dr. Kanwaljit Singh as Ex.OP1, 3 & 4/A alongwith document Ex.OP1, 3 & 4/1 and closed the evidence.
11. OP No.2 did not lead any evidence because during the pendency of this complaint, the OP No.2 died.
12. We have heard the arguments of learned counsel for the respective parties and have also gone through the case file very carefully.
13. The factum of admission of the complainant in OP No.1 Hospital i.e. PIMS from 11.06.2016 to the date of discharge and operation of the complainant qua replacement of Total Hip Replacement is admitted and moreover, these facts are also established from the documents issued by the OP No.1 time to time also leaves no doubt that the complainant got admission in the hospital of the OP and got operation from OP No.2 qua her Total Hip Replacement, but as per version of the complainant, she remained under depression because the operation was not done by the OP No.2 with due care and cautions rather the same was conducted by negligent manner and its effect was come upon the complainant as she was always bearing the pain of the said operation and further under compelling circumstances the complainant got same treatment i.e. operation from PGI, Chandigarh and regarding that documents are also available on the file, but upto this extent, there is no controversy or denied on the part of the OPs.
14. Now, question before us only, who is the negligent in this case, no doubt, the complainant has made all allegations directly upon the Dr. Vishal Moudgil/OP No.2, who conducted the operation of the complainant, but during the pendency of the instant complaint, the Dr. Vishal Moudgil i.e. OP No.2 has been expired. Whenever any medical negligence attributed to any doctor and after his death the right to sue qua that doctor will be extinguished and in support of this observation, we take a support of a judgment of the Hon’ble National Commission, cited in 2001 (1) CPJ 45, titled as “Balbir Singh Makol Vs. Chairman, Sir Ganga Ram Hospital & Ors.”. On the same point, we further like to refer another pronouncement of Hon’ble Supreme Court, in Civil Appeal No.91 of 1972, date of decision 29.11.1985, titled as “Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair”, wherein alleged as under:-
“Civil Procedure Code, 1908, Order 22, Rules 1 and 11-Succession Act, 1925, Section 306-Defamation-Appeal-Death of appellant – Effect of –Cause of action for defamation does not survive after the death of appellant.”
If we see the case of the complainant qua OP No.2, then we can say without any hesitation that the right to sue qua OP No.2 of the complainant has been extinguished and accordingly, no relief of the complainant can be considered qua OP No.2.
15. It is not denied by the OPs No.1, 3 and 4 that the operation of the complainant was conducted in the hospital of the OP No.1, rather the documents available on the file are also related to the hospital of OP No.1 i.e. PIMS, which shows that the OP No.2/Dr. Vishal Moudgil was working under the supervision of OP No.1 Hospital and due to that reason, the operation of the complainant was conducted in the Operation Theater of the OP No.1 Hospital and the OP No.1 Hospital is managed by its Director/Principal/OP No.4. In order to prove the negligence, unfair trade practice and deficiency in service on the part of the doctor, who conducted the operation of the complainant, there is very effective and solid evidence brought on the file by the complainant, which is of a such type, which cannot be ignored i.e. an affidavit of Dr. Vijay G. Goni Professor, Department of Orthopedic Surgery, Postgraduate Institute of Medical Education and Research Chandigarh (PGIMER), his affidavit is Ex.CW3/A, not so, the said doctor also gave a certificate Ex.C-11/CD, the said Dr. Vijay G. Goni conducted the second operation of the complainant. It is a general trend that no expert will depose against the other expert despite having the deficiency in his working, but in the instant complaint, the Dr. Vijay G. Goni dare to depose the real and true/correct facts, whatsoever he found. In his affidavit, he categorically stated in Para No.4 as under:-
“After examining X-rays and other related medical records, Mrs. Sheetal was operated at PGIMER for Revision Total Hip Replacement of RT side using metallic cage and bone grafting technique, since earlier REGARDING THAT side Total Hip Replacement which was done at some other hospital, was a failure.”
and similarly in his certificate Ex.C-11/CD, he explained the negligence of previous doctor by using the same wording. So, we find that no further evidence is required to complainant to establish that there was some glaring negligence on the part of the doctor, who conducted the surgery in PIMS Hospital i.e. OP No.1.
16. Now, the negligence of OPs No.1, 2, 3 and 4 is established. The treating doctor i.e. OP No.2/Vishal Moudgil has since expired and he is working under the control of OPs No.1, 3 and 4, if so, then the OP No.1 Hospital and OPs No.3 and 4 Director/Principal are vicariously liable for the acts of omission and commission committed by OP No.2/Dr. Vishal Moudgil. So, accordingly, we hold that the OPs No.1, 3 and 4 jointly and severally liable to indemnify the complainant by way of paying compensation.
17. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs No.1, 3 and 4 are directed to pay a lump-sum compensation to the complainant, to the tune of Rs.4,00,000/- for negligence and causing mental and bodily pain to the complainant as well as for permanently impairing one finger of right foot of the complainant due to damage of Sciatica Nerve. Apart from above, the OPs No.1, 3 and 4 also directed to pay litigation expenses. The aforesaid amount is directed to pay within 30 days from the date of receipt of the copy of order, failing which the OPs No.1, 3 and 4 will further liable to pay interest thereon @ 12% per annum from the date of filing complaint i.e. 07.01.2017, till realization. This complaint could not be decided within stipulated time frame due to rush of work.
18. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Karnail Singh
11.03.2020 Member President
