DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No. 343/2014
Shri Naveen Gupta
R/o E-233,
East of Kailash,
New Delhi-110065. ….Complainant
Versus
- Dr. Ramneek Mahajan,
Wellness Diagnostic,
A-28, Kailash Colony,
New Delhi-110048.
- NOVA Specialty Surgery
(Division of Nova Medical Centers NCR Region Pvt. Ltd.)
Through its Director/ Chairman/ President,
A-19/A, Kailash Colony,
Near Kailash Colony Metro Station,
New Delhi-110048 ….Opposite Parties
Date of Institution : 01.09.14 Date of Order : 24.01.19
Coram:
Sh. R.S. Bagri, President
Ms. Naina Bakshi, Member
Ms. Kiran Kaushal, Member
ORDER
Member - Kiran Kaushal
Brief facts as pleaded in the complaint are that:-
- The complainant, Naveen Gupta got his surgery done in NOVA Super Specialty Surgery Hospital hereinafter referred as OP-2 by Dr. Ramneek Mahajan (OP-1) who performed the wrist surgery on 17.06.2013.
- The complainant on 06.06.2013 due to fall sustained injuries in his spine and wrist. Thereafter he consulted OP-1 regarding his injuries and was advised to undergo wrist surgery. As per the advice of OP-1 the complainant consented and was admitted with OP-2 on 17.06.2013; where OP-1 performed the wrist surgery and the complainant was finally discharged on 18.06.2013.
- It is averred that post surgery the complainant kept feeling continuous pain in the operated wrist and adjoining finger. The complainant consulted OP-1 about the same and suggested that it was nothing but a post surgical phenomenon which is common in nature and the pain, uneasiness in the wrist and finger will disappear after casing and physiotherapy. As per the advice the complainant visited the OPs on 03.08.2013 for further medical procedure and casing of the operated wrist and removal of the same was performed by OP-1. OP-1 further advised to take physiotherapy session for the wrist for next six weeks to attain the permanent cure of the wrist. Despite taking the physiotherapy session and casing the complainant’s pain did not subside. He also started feeling trouble in the movement of his left thumb and index finger besides the wrist. The complainant again consulted OPs regarding his pain and bending problems in the fingers but he was again assured that this is due to surgery and stress of veins / nerves and same will be cured after physiotherapy. Complainant took the physiotherapy sessions meanwhile OP-1 directed the complainant to wear thumb splint to see if the problem gets rectified. On 02.10.2013 the left hand thumb and index finger of the complainant suddenly stopped moving. Finally when the pain of the complainant did not subside OP-1 referred the complainant to Dr. Vikas Gupta.
- After investigations made by Dr. Vikas Gupta report of the examination showed a ‘Tendon rupture of 4cm’ in the thumb and index finger. Complainant further consulted Orthopaedician Dr. Shekhar Srivastava who confirmed the above diagnosis and opined that the damages in tendon of fingers occurred due to implanted screws. He recommended further surgery for tendon repairs and change of implant screws to cure the damages occurred in the fingers of the complainant.
- On 10.10.2013, complainant took another opinion from Dr. Aroop Mukherjee at Max Super specialty hospital Saket and he also opined rupture of EPL due to locking plate and shortening of screws. Dr. Aroop Mukherjee also suggested for a surgery for ‘tendon reconstruction and tendon transfer’ besides ‘shortening of screws’.
- Thereafter complainant got another surgery done by Dr. Vikas Gupta at Medanta Hospital where on 07.11.2013 surgery of wrist of the complainant was performed for crafting of thumb tendon and repair of index finger tendon which was found to be damaged upto 90%. It is next averred by the complainant that at Medanta Hospital the rupture was repaired, one of the two tendons from index finger was diverted to the thumb, screw was removed from the wrist followed by casing five to six weeks and physiotherapy thereafter.
- Aggrieved by the negligent and careless behavior of OPs, complainant approached the forum with the prayer to direct the OPs severally and jointly to pay Rs.18,50,000/- on account of compensation to the complainant for mental and physical suffering pain, agony and for directions to OPs to pay the cost of legal proceedings.
2. OPs resisted the complaint by filing their written statement. OP-1 inter-alia submitted that the patient approached him on 06.06.2013 in his clinic after sustaining injury due to fall. After examining and investigating, OP-1 diagnosed that the patient was suffering from ‘comminuted intra articular fracture lower end radius left with fracture L1 vertebra’. Accordingly, OP-1 explained the patient both surgical as well as non surgical options for both the spinal and wrist injuries. Thereafter, the patient approached Dr. Harbhajan Singh and Dr. Nigam who gave him a plaster for left wrist fracture. Not getting relief by the treatment done by Dr. Nigam patient approached OP-1 again on 16.06.2013 for wrist surgery.
2.1 OP-1 again examined the patient and informed that the delay in treatment might have resulted in irritation or injury to the tendons and hence, the chances of developing any complication during the course of surgery or post operatively can never be denied despite taking all necessary precautions. Complainant having understood the risk involved, decided to get operated by OP-1 and gave him informed consent for the same. The patient got admitted in OP-2’s hospital on 17.06.2013 for the wrist surgery where the surgery was performed diligently, prudently, with utmost due care and caution with a volar approach to avoid any further strain to dorsal tendons. The patient was also advised to not stress the operated hand atleast for four months. He was also advised physiotherapy.
2.2 It is next submitted by OP-1 that post surgery though the patient did complain about pain, but so lightly that it looked like any normal post wrist fracture. The patient complained of stiffness around fracture area and wrist but never for a problem related to thumb Extensor Pollicis Longus (EPL) tendon / indices noted or stated for about three and a half months after surgery. It is next submitted that the patient again approached OP-1 on 03.10.2013 with a problem related to thumb EPL tendon, OP-1 immediately showing his concern referred the complainant to higher centre.
2.3 OP-1 submits that no doctor at anywhere pointed out any negligence on the part of OP-1. Particularly the doctors by the name of Dr. Shekhar Srivastava, Dr. Vikas Gupta and Dr. Aroop Mukherjee had never ever told that screw or locking plate has damaged tendon of EPL. Though their advice for the EPL repair was correct and needed in this case. Hence, OP-1 is not liable to pay any compensation to the complainant as there is no deficiency in service and no medical negligence on behalf of OP-1. It is prayed that the complainant be directed to pay Rs.10,000/- for filing false and vexatious complaint.
2.4 OP-2 resisted the complaint inter-alia stating that complaint is not maintainable against OP-2 as the complainant has failed to make any averment of deficiency against OP-2. There is no cause of action, adducing of any evidence or proof of deficiency in service against OP-2.
2.5 It is further averred that all the consultancy and investigations services to the complainant were rendered by OP-1 at his private clinic/ diagnostic centre and only the surgery was performed by OP-1 at the premise of OP-2. It is next submitted that OP-2 facilitated OP-1 with all necessary requisites for the purposes of carrying out the desired surgery.
2.6 OP-2 next submits that on 03.08.2013 the complainant was advised by OP-1 to undergo physiotherapy sessions with OP-2 which lasted for around 25 days. The last session of physiotherapy provided to the complainant by OP-2 was on 05.09.2013. The physiotherapy sessions of the complainant were conducted with a fair reasonable and competent degree of care skill and knowledge. The complainant has not made any complaint regarding the same. It is next submitted that the complainant had made no averments as regards the facilities and infrastructure provided by OP-2 and therefore, it is prayed that the instant complaint be dismissed with costs.
3. Complainant has filed rejoinders to the written statements of OPs and evidence by way of affidavit wherein all the facts in the complaint have been reiterated.
4. Evidence of Dr. Ramneek Mahajan has been filed by OP-1. Evidence of Shri Sunny Rana, Assistant Manager-Administration, has been filed on behalf OP-2.
5. Written arguments have been filed by the parties.
6. Arguments on behalf of the parties are heard and material placed on record is perused carefully.
7. It is complainant’s case that after getting wrist surgery performed on 17.06.2013 by OP-1 in the hospital of OP-2 complainant felt pain and uneasiness in his wrist. OP-1 assured the complainant that the pain was nothing but a post surgical phenomenon which would disappear after casing and physiotherapy.
8. The complainant visited OP-1 again on 03.08.2013 with the problem that he was feeling continuous pain in the thumb and index finger after surgery and even after casing and physiotherapy the pain had not reduced. It was further told to OP-1 that after casing of operated wrist the complainant was also feeling problem in the movement of his left thumb and index fingers besides the wrist. OP-1 again suggested that this was due to the surgery and stress of veins / nerves and same will be cured after physiotherapy. The complainant continued with his physiotherapy sessions but on 02.10.2013 the left hand thumb and left index finger of the complainant stopped moving. The complainant again approached OP-1 on 03.10.2013 wherein OP-1 referred the complainant to Dr. Vikas Gupta. On the advice of Dr. Vikas Gupta complainant got the X-ray, CT Scan and ultrasound of wrist done and the report of above examination showed ‘Tendon Rupture of four centimeters’ in the thumb and index finger.
9. The complainant, thereafter, consulted a senior orthopaedician Dr. Shekhar Srivastava on 09.10.2013. The consultation slip of Dr. Srivastava is exhibited as Exhibit-C1/7 wherein after diagnosing the problem of the complainant the plan advised was –
“Tendon repair; plus minus change of screws”.
The complainant on 10.10.2013 consulted another Orthopaedician Dr. Aroop Mukherjee whose consultation slip is exhibited as Exhibit C1/8 where the complainant was advised :-
‘Tendon reconstruction, tendon transfer and shortening of screws.’
10. The complainant got the second surgery on his wrist done by Dr. Vikas Gupta at Medanta Hospital. Relevant portion of the discharge summary of Medanta Hospital is referred below for ready reference:-
“Diagnosis & Co-morbidities : Extensor pollicis longus tendon rupture and extensor indices tendon degeneration left side
Allergies : Not known
Procedure or Surgery : Tendon grafting EPL and tendon
repair EIP left hand done on 07.11.2013 under GA.
Medical History & Presenting Complaints
: Patient presented as an operated case for fracture distal radius on 07.06.2013 elsewhere, now came with inability to extend thumb left side.
Past History : Left hand wrist surgery done in
2013
Spine surgery done in 2013
Course in Hospital : Patient presented with above mentioned complaints. His investigations were done. After anesthesia clearance patient underwent procedure on 07.11.2013. Post operative period was uneventful. Now, the patient is being discharged in a stable condition with the following advice.”
- On perusal of records it is noticed that OP-1 is a well qualified and experienced doctor in Orthopaedic branch of medical science. The complainant took conservative treatment from other doctors before approaching OP-1 and only after the complainant’s satisfaction and informed consent OP-1 performed the wrist surgery. It is also noticed that a spine surgery was also performed by the same Orthopaedician which went well as the complainant had no problem regarding the same.
- It is complainant’s case that the screws implanted in his wrist surgery were larger than required. As regards to the screw size it is pertinent to mention that as per the medical literature available on record, it is quite difficult to find out the correct size of screw due to triangle shape of the dorsal cortex (wrist bone) Screw size to be measured in the operation theatre with the help of image intensifier machine and measuring equipment. Size of the screws depends upon the placement of bones while inserting implants. In the present case also OP-1 used image measuring and followed medical protocol while deciding the size of screws. OP-1 to support his case has referred to an article written by S Rastogi, R.K. Arya, S. Bhan from All India Institute of Medical Science, New Delhi titled as ‘Barton’s fracture dislocation’ –long term followup. For ready reference the relevant material is reproduced here asunder:-
“It is quite difficult to confirm correct screw length with fluoroscopic imaging, we routinely downsize the screw length by 2mm. if it was felt that dorsal rim fragments necessitated dorsal cortical screw placement, then the follow-up of those patients need to be carefully planned in order to remove the hardware at first sign of extensor tendon irritation.”
12. From the discussion above an inference can be drawn that it is difficult to confirm the length of the screw. There is no fix or permanent size of the screws which could have been fitted in the complainant’s wrist. Therefore, mere error of judgment on the part of OP-1 cannot be labeled as medical negligence. Being qualified and experienced Doctor OP-1’s line of treatment was the same which would have been used by any prudent, diligent doctor.
13. But the forum is of the opinion that there was deficiency of service on the part of OP-1 post surgery/ Follow up. The doctor was negligent to the fact that some problem could have arisen as the complainant constantly complained of pain and numbness in his thumb and index finger. We are supported in our view from the article (supra) relied by OP-1 himself wherein it is very categorically stated that if it was felt that dorsal rim fragment necessitated dorsal cortical screw placement then the follow-up of those patient needs to be carefully planned in order to remove the hardware at first sign of extensor tendon irritation.
13. Complainant’s case that he was undergoing physiotherapy at OP-2 under the supervision of OP-1. This Forum has no reason to disbelieve complainant’s version that OP-1 did not pay heed to complainant’s post operative complications and did not ‘carefully plan the follow up and remove the hardware at first sign of Extensor tendon irritation.’
Complainant’s visits and expenses incurred on opinion by Dr. Shekhar Srivatav, Dr. Aroop Mukherjee and Dr. Vikas Gupta could have been obviated, had OP-1 been careful in his follow-up.
14. As regards of OP-2, it is observed that OP-2 being the hospital where the surgery was performed there is no averment regarding the facilities with respect to carrying out the surgery or any other infrastructural problem. Therefore, OP-2’s role being very limited in the whole dispute the complainant has failed to prove any deficiency of service qua OP-2.
- Hence, we allow the complaint and direct OP-1 to compensate the complainant by paying Rs.1,00,000/- along with interest @ 6% per annum from the date of filing of the complaint till realization for physical suffering, pain, mental agony, harassment and litigation cost.
- OP is directed to pay the complainant within a period of 60 days from the date of receipt of the copy of this order failing which the OP shall become liable to pay interest @ 9% p.a. on Rs.1,00,000/- from the date of filing of the complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 24.01.19.
