Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 173
Instituted on : 24.04.2018
Decided on : 24.08.2023.
Prem Kumari Sharma w/o sh. L.D.Sharma R/o H.No. 625/6, Partap Mohalla Rohtak 124001.
……….………..Complainant.
Vs.
- Dr. Neeraj Saini R/o H.No. 639/20, near Bal Bhawan, Rohtak 124001.
- Dr. Ashwani Maichand R/o 8/29, West Patel Nagar, OPP DAV Sr. Sec. School, Metro Pillar 198, New Delhi, Delhi 110008
- Dr. Rahul Kakran R/o 8/29, West Patel Nagar, Opp DAV Sr. Sec. School, Metro Pillar 198, New Delhi, Delhi 110008.
- Mr. Daljit Singh, President of Fortis Healthcare Limited, Fortis Hospital, A Block, Shalimar Bagh, New Delhi, Delhi 110088
- Mr. Harpal Singh, Chairman of Fortis Healthcare Limited Fortis Hospital, A Block, Shalimar Bagh, New Delhi 110088
- CEO, of Fortis Hospital, Fortis Hospital, A Block, Shalimar Bagh, New Delhi, Delhi 110088.
..…….……….Opposite parties.
COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT,2019.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR.VIJENDER SINGH, MEMBER.
Present: Sh. Kamal Arora, Advocate for complainant.
Ms. Savita Saini, Advocate for opposite party no. 1.
Sh. Gaurav Khurana, Advocate for opposite party no. 4 to 6.
Opposite party no. 2 & 3 already exparte.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per complainant are that she was suffering from some pain in the hips for some time but still was able to move freely and without any support. She was not suffering any blood pressure problem, no heart disease, no DVT nor even diabetes. It is further submitted that on the reference and discussion of opposite party no. 1, she went to Fortis Hospital Shalimar Bagh and got opinion of Dr. Ashwani Maichand and Dr. Rahul Kakran of Ortho who strictly advised surgery and left hip replacement after seeing only one X ray report but the doctors have not told that such surgery can lead to amputation or any other serious complication. The opposite party no.1 is the expert of the company of which the implant (artificial Hip) was to done in the surgery and he was to assist the Hospital team during the surgery and was also present in surgery done on 27/4/16. On the medical advice of the opposite party no 2 & 3, the complainant got admitted in the Fortis Hospital for the surgery on 26/4/16. The opposite party no. 2 and 3 were serving under opposite parties no. 4 to 6 and they are responsible for the acts of the opposite party no 2 and 3. All the Doctors and medical staff guaranteed that the complainant will become completely OK and will start walking normally with 10 days of the operation. The doctors and other Fortis hospital staff guaranteed world class treatment. On the day of admission of the complainant the doctors recorded brief history of the complainant and received the signatures of the complainant on some papers which were not read over to the complainant and signatures were obtained on the pretext of the normal procedure and on that day also the doctors didn't tell the negative points and other negative probabilities of the Hip replacement surgery. It is further submitted that initially opposite parties no 2 & 3 and other staff of the opposite parties no. 4 to 6 never suggested any tests and only advised to get admitted in the Hospital within short period so that knee joints may not get effected due to hip problem. At the time of advise the hospital staff has disclosed that the Fortis is on the panel of the Haryana Government and all billings of complainant will be easily reimbursed but after operation it came in the knowledge of the complainant that all the bills will not be reimbursed but only about 50% of the expenditure was to be reimbursed and initially all the payment was to be made in cash at the time of admission. In this way opposite parties No. 2 to 6 cheated upon the complainant by not disclosing the true facts. The complainant was operated in the early morning on 27/4/2016 and after an hour of the operation the opposite parties no. 2 & 3 told that the operation was successful and the complainant will move to the ICU within few minutes. The said operation was done negligently and in hurry within 45 minutes and all the post operative measures were not taken. But it was amazing that the complainant was moved in the evening of the 27.04.2016 to ICU. When the complainant moved to ICU, she complained to the opposite parties that her left leg was totally hard and she is not feeling any sensation in the same. On that opposite parties no. 2 & 3 said that this is the result of anesthesia but they did not check the complainant thoroughly and also her pulse. In the next morning of 28/4/2016 the opposite party no. 2 and 3 visited the patient and when the same complaint was made to them again then they checked the left leg completely and disclosed that the blood in the lower left leg has completely stopped and due to the same the lower left limb has been damaged completely. Again in hurry the second operation and other tests were done but they asked to deposit the amount of the second operation first and then the treatment was to be done. After that on the same day they disclosed that the left lower limb was to be amputated for the safety of the complainant and there is no other way or remedy for the same. The fake reason of thrombosis was given for the negligence of the hospital. Doctors told the younger son of the complainant that left leg will be amputated due to some thrombosis and if the amputation is not done shortly she cannot be saved. Where as in the Echo test and dopplers test or any other test done on 26/4/2016 no such thrombosis or clot was present. The complainant's family complained about the negligence of the hospital staff and concerned doctors to the Hospital CEO and MD/head but of no use. The hospital staff infused fear in complainant mind and her family that if her left leg is not amputated then there is possibility of gangrene and losing life and also it is possible that the hospital billing may not be reimbursed if the hospital negligence is proved. The complainant was operated for the third time and her left leg was amputated on 29.04.2016. The staff present there obtained the signatures of the relatives of the complainant without explaining the terms and conditions of the same in the pretext of formalities and procedures. The hospital fees was online transferred for the third operation from Canara Bank Rohtak before the third operation. It came in to knowledge of the complainant in November 2017 that the Fortis hospital was very well know about the negligence of the concerned doctors and they were forced to leave the hospital after some time after some other complaints of the negligence. The complainant consulted some other doctors and then the negligence of the opposite parties came into complete knowledge of the complainant. If the proper check up before the operation and after the operation would have been done by the medical staff of the Fortis Hospital then the complainant's leg would have been easily saved in time but the opposite party didn't care for complete one day even after the complaining of the complainant. The life of the complainant has been completely ruined due to the negligence of the Fortis hospital and the complainant is still under shock and is bed ridden due to the wrongful and negligent act of the opposite party no 2 to 6. Till the filing of the complainant, the opposite parties have not supplied the complete documents of the treatment to the complainant after many requests. As such, the act and conduct of the opposite party is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite parties may kindly be directed to pay the amount of Rs.18,00,000/- as compensation alongwith interest. It is further prayed that opposite parties be also directed to pay Rs.60,000/- as litigation charges.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party no.1 appeared and submitted its reply that he was the executive of the Company of which hip implant was made and as per his duty he was present there in operation only to help doctors and his duty was only to fit place the implant in the injured portion. All operative measures like incision and wrapping after operation is done by the doctors. He had nothing to do with the same. He came to know afterwards 29.04.2016, that the major and essential tests like CT Scan and MRI were not done in the Fortis Hospital and seeing the pain and stiffness in left leg of the complainant, the same were very necessary before the operation. The complainant was operated by the doctors of Fortis Hospital in the early morning on 27.04.2016 but unintentionally some artery was cut while making incision/operation but the same was managed by the concerned doctors during the operation. The hospital has not completely taken all precautions and measures after the operation like checking of pulse and blood circulation in the limb which was operated. When the blood stops the organ starts discolouring within an hour, but the same was noted the next day in morning even after complaining the same in the evening of 27.04.2016 by the complainant. It is further submitted that the said operation was not done negligently but all the necessary post operative measures were not taken. If the doctors have checked the pulses of operated limb 2-3 times on the same day of operation, the amputation of the limb could be avoided. Opposite party no. 4 appeared and submitted in its reply that he was neither the member of the treating panel nor operated the leg of the complainant. He never rendered any kind of treatment and/or surgery. The complainant has not filed any document reflecting the name of the opposite party no. 4 in treating the complainant during the time when she was admitted in the hospital. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint.
3. Opposite party no. 5 appeared and submitted its reply that he was neither the member of the treating panel nor operated the leg of the complainant. He never rendered any kind of treatment and/or surgery. The complainant has not filed any document reflecting the name of the opposite party no. 5 in treating the complainant during the time when she was admitted in the hospital. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint. Opposite party no. 6 appeared and submitted its reply that complainant was admitted in Fortis Hospital, Shalimar Bagh on 26.04.2016 under opposite party no. 2 and considering the illness of the complainant, she was advised for total hip replacement hip surgery. It is further submitted that complainant was taken for surgery on 27.04.2016 and the same was successful. Post-surgery, complainant was shifted to SICU for post-operative care. During the time when the complainant was kept in the post-operative area of operation theatre, she was constantly monitored by the treating consultant. The treating consultant on constant monitoring had observed that the operated limb of the complainant was fine. In the evening of 27.04.2016, the complainant complained the stiffness and heaviness in both her limbs. On such complaint the supervising doctor reduced the dosage of epidural infusion of Anawin from 8ml/hour to 3ml/hour. Thereafter on further examination of the complainant, it was noticed that there was difference in temperature of the operated limb to the other limb. Considering the said situation Anesthetist on duty advised for stopping Anawin infusion and the same was stopped. On 28.04.2016, the complainant was re-examined and the concerned doctor on examination found that the operated limb was cold and peripheral pulses were not palpable. The said fact was communicated by the concerned doctor to the orthopedic doctor on duty. The orthopedic doctor on duty examined the complainant and found the operated limb cold with no pulsation. Thereafter considering the situation immediate CTVS consultation was taken. The concerned CTVS doctor examined the complainant and advised for peripheral angiography. Thereafter the complainant was shifted to Cath Lab and Angiogram was done which revealed a complete thrombotic occlusion of the external iliac artery. After immediate thrombosuction, extensive thrombotic occlusion was noted in the common femoral artery, superficial femoral artery and profunda extending into popliteal artery. In view of the extensive thrombus in the vessel and obstructed microcirculation, thrombolysis was planned after fasciotomy in OT. The complainant was taken for fasciotomy however examining the condition of the muscles, thrombolysis was deferred and the complainant was advised for amputation on 29th April, 2016. The hospital informed the entire situation to the complainant and his family members and the entire family after being satisfied the opinion and treatment consented and agreed for amputation. After consent of the family, the complainant underwent amputation on 29th April, 2016. Thereafter being satisfied with the treatment rendered by the hospital, the complainant was discharged in stable condition from the hospital. The complainant was in better condition and improved during the treatment and after discharge from hospital. The hospital had taken consents from the complainant/her attendants on each and every occasion when the treatment was rendered to the complainant. It is further submitted that doctors of the hospital had explained all the treatment and procedure for the surgery of the complainant’s leg and after the agreeing with all the procedure and treatment alongwith complications and risks involved in the treatment alongwith complications and surgery the consents were given either by the complainant herself and/or her family members or relatives in writing. The entire treatment rendered and surgery done was as per the medical norms and there was no deviation against the settled medical protocol which evidences any kind of negligence at the hands of the hospital. The complication which occurred with the complainant post surgery is known being evident in 0.2% to 0.3% cases and the complainant was one such case. Complainant was provided adequate treatment and immediate assistance without any delay. At the time of the admission of the complainant, she was 70 years old. It is submitted that the team of the doctors of the hospital had explained that at that stage any kind of surgery for hip replacement may cause any further problem and the complainant may suffer. But the complainant and her family members requested the hospital to proceed further with the surgery of hip replacement in the left leg of the complainant. They had also given all the necessary consents for the same. It is further submitted that opposite parties no. 4 and 5 never rendered any kind of treatment and/or surgery. The opposite parties no. 2 and 3 who supervised the treatment of the complainant are not currently associated with the hospital. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint. Notice issued to opposite parties no. 2 and 3 through post received back served. But none has appeared on their behalf. As such, they were proceeded against exparte vide order dated 14.11.2018 of this Commission.
4. Learned counsel for the complainant in his evidence has tendered affidavit Ex. CW-1/A, documents Ex. C2 to Ex. C16 and closed the evidence vide separate statement dated 07.11.2019. Ld. counsel for the complainant also tendered documents Ex.C17 to Ex.C20 in his additional evidence and closed his additional evidence on 14.12.2022. Learned counsel for the opposite party no. 4 to 6 closed his evidence vide their separate statement dated 23.12.2020 and submitted that the reply already filed by them be read as their evidence. Opposite party no. 1 failed to produce his evidence. As such, evidence of opposite party no. 1 was deemed to be closed vide order dated 23.12.2020 of this Commission .
5. We have heard learned counsel for the complainant and have gone through material aspects of the case very carefully.
6. Ld. counsel for the complainant has contended that complainant was operated by the doctors of Fortis Hospital i.e. opposite party No.2 & 3 for left hip replacement on 27.04.2016. But due to negligence of the opposite parties, the leg of the complainant was amputated. It is further contended that the surgery was done only on the basis of X-Ray. No CT Scan or MRI was done. After the operation in the evening of 27.04.2016 complainant complained about the stiffness and hardness in the leg but the same was not thoroughly checked by the doctors on the plea that it was the effect of anesthesia. In the next morning of 28/4/2016 the opposite party no. 2 and 3 checked the left leg completely and disclosed that the blood in the lower left leg has completely stopped and due to the same the lower left limb has been damaged completely and disclosed that the left lower limb was to be amputated due to some thrombosis for the safety of the complainant. But at the time of Echo test and dopplers test or any other test done on 26/4/2016 no such thrombosis or clot was present. It is further contended that if the proper check up before the operation and after the operation would have been done by the medical staff of the Fortis Hospital then the complainant's leg would have been easily saved in time but the opposite party didn't care for complete one day even after the complaining of the complainant. The life of the complainant has been completely ruined due to the negligence of the Fortis hospital and the complainant is still under shock and is bed ridden due to the wrongful and negligent act of the opposite party no 2 to 6. To prove her case, complainant has placed on record copy of bill Ex.C2, copy of treatment record Ex.C3 & Ex.C4 and copy of a news Ex.C5, copy of legal notice Ex.C6 and copies of complaints & emails made to the higher authorities Ex.C7 to Ex.C9, & Ex.C17 to Ex.C19. Summoned record Ex.C1 is also placed on record.
7. On the other hand, contention of opposite party No.1 is that he was the executive of the Company of which hip implant was made and he was present at the time of operation only to help doctors and his duty was only to fit place the implant in the injured portion. All operative measures were done by the doctors.. He came to know afterwards 29.04.2016, that the major and essential tests like CT Scan and MRI were not done in the Fortis Hospital and seeing the pain and stiffness in left leg of the complainant, the same were very necessary before the operation. The complainant was operated by the doctors of Fortis Hospital in the early morning on 27.04.2016 but unintentionally some artery was cut while making incision/operation but the same was managed by the concerned doctors during the operation. The hospital has not completely taken all precautions and measures after the operation like checking of pulse and blood circulation in the limb which was operated. When the blood stops the organ starts discolouring within an hour, but the same was noted the next day in morning even after complaining the same in the evening of 27.04.2016 by the complainant. The said operation was not done negligently but all the necessary post operative measures were not taken. If the doctors have checked the pulses of operated limb 2-3 times on the same day of operation, the amputation of the limb could be avoided.
8. We have perused the documents placed on record by both the parties.
First of all the operation was done only on the basis is report of X-ray. Neither any tests were ever suggested by the opposite parties nor the essential tests like CT Scan and MRI were not done in the Fortis Hospital and the said surgery was conducted on 27.04.2016. It is very much surprised that when the complainant complained about the stiffness and hardness of her leg in the evening of the 27.04.2016, the opposite parties no. 2 & 3 did not try to thoroughly check the patient on the ground that it was the result of anesthesia. In the next morning of 28/4/2016 the opposite party no. 2 and 3 checked the left leg completely and disclosed that the blood in the lower left leg has completely stopped and due to the same the lower left limb has been damaged completely. Here there is complete negligence on the part of opposite party no.2 & 3 as they did not check the leg of the complainant thoroughly in the evening of 27.04.2016 on the presumption that it was the effect of anesthesia. Moreover opposite party No.1 in his reply has clearly admitted the fact that the hospital has not completely taken all precautions and measures after the operation like checking of pulse and blood circulation in the limb which was operated. When the blood stops the organ starts discolouring within an hour, but the same was noted on the next day in morning even after complaining the same in the evening of 27.04.2016 by the complainant. However, it is submitted by the opposite party No.1 that operation was not done negligently but all the necessary post operative measures were not taken. If the doctors have checked the pulses of operated limb 2-3 times on the same day of operation, the amputation of the limb could be avoided. Hence from the above submission of opposite party No.1, it is clear that there is complete negligence on the part of opposite parties in taking all the necessary post operative measures. We have also perused the news of the Fortis Hospital published in Express New Service dated 16 February 2017, which shows that the DMC has barred two doctors from practicing for six months after finding them guilty of performing surgery on the wrong foot of a 24 years old man and the said doctors were Dr. Ashwani Maichand, consultant orthopaedics and Dr. Rahul Kakran, Associate consultant orthopaedics, i.e. opposite party no.2 & 3, which shows that the opposite party No.2 & 3 are not only negligence in this case but are also held negligent in other case by the Medical Council. On the other hand, opposite party No.2 & 3 did not appear before this Commission despite service and have been proceeded against exparte, which raises a presumption against the opposite party no.2 & 3 that they have nothing to say in the matter and all the allegations leveled by the complainant against the opposite party No.2 & 3 and the submissions made by the opposite party No.1 regarding not taking the post operative measures by the opposite party No.2 & 3 stands proved. The hospital has not completely taken all precautions and measures after the operation like checking of pulse and blood circulation in the limb which was operated. Had the doctors would have check the pulses of operated limb 2-3 times on the same day of operation, the amputation of the limb could be avoided. Now, after the amputation of leg, the complainant is totally dependent on others and she needs an attendant round the clock. Hence there is negligence as well as deficiency in service on the part of opposite party No.2 to 6. As such opposite party No.2 to 6 are liable to pay the charges of treatment as well as compensation to the complainant. As per bill Ex.C1 complainant has paid an amount of Rs.386729/- to the opposite parties’ hospital on account of treatment charges. One more bill Ex.C2 is placed on record by the complainant. At the time of arguments it has been pleaded by ld. counsel for the complainant that the artificial leg has been implanted upon the complainant, which has been advised by the doctor for smooth day to day activities of the complainant.. As per complainant, she spent an amount of Rs.212445/- for installation of artificial leg and bill of the same is Ex.C2. This bill has been counter signed by the consulting and treating doctor Dr. V.J.S.Vohra. At the time of operation, the age of complainant was 70 years. If we assume the age of complainant as 80 years, she needs attendant for 10 years. In our view, the expenses of attendant is calculated as Rs.10000/- per month and Rs.120000/- p.a and Rs.1200000/- for 10 years. As such opposite parties are liable to pay the amount of Rs.1200000/- alongwith hospital bill of Rs.386729/- Ex.C1 & artificial leg bill Ex.C2 amounting to Rs.212445/- i.e. total Rs.1799174/-(1200000/- + Rs.386729/- + Rs.212445/-) and compensation on account of mental agony and harassment to the complainant.
9. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.2 to 6 to pay the amount of Rs.1799174/-(Rupees seventeen lac ninety nine thousand one hundred and seventy four only) alongwith interest 9% p.a. from the date of filing the present complaint till its realization and shall also pay a sum of Rs.25000/-(Rupees twenty five thousand only) as compensation on account of deficiency in service and Rs.10000/-(Rupees ten thousand only) as litigation expenses to the complainant. Order shall be complied within one month from the date of decision.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
24.08.2023.
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Nagender Singh Kadian, President
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Tripti Pannu, Member.
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Vijender Singh, Member
