The complainant Sarabjit Kaur (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Dr. Dilveer Brar and others (here-in-after referred to as opposite parties).
Briefly stated the case of the complainant is that she wanted to get her knee replaced and in this regard, she consulted opposite parties No.1 & 2. The opposite parties No.1 & 2 assured her that her knee would be replaced without any problem. The complainant was got admitted by her son in their hospital (opposite party No. 3) on 20-04-2016 and was operated upon on 21-04-2016 and her knee was replaced.
It is alleged that after the replacement of knee, complainant instead of getting rid of the pain, started feeling more pain in her knee and just on the next day she got swelling all over her leg. She also suffered from acute pain, redness and fever of chill and even she felt herself unable to move her leg. The complainant complained about this to the opposite parties and they assured complainant that within days, she will be alright and kept on treating the complainant ignoring the problems suffered by her. The opposite parties No.1 & 2 discharged the complainant on 28-04-2016 without curing the said problems. There was no relief from pain above mentioned problems and the her health of complainant became worst.
It is alleged that again on 04-05-2016 the complainant was got admitted by her son in the hospital of opposite parties and she remained there upto 12-05-2016 but the opposite parties could not cure the complications suffered by the complainant and discharged her with the same problems with the directions to visit the hospital once in a week and assured that the problems suffered by the complainant will be cured.
The complainant alleged that when after visiting the hospital of opposite parties for about two months, she did not feel any relief and being dissatisfied with the assurance and treatment given by opposite parties, on 30-07-2016, the complainant approached the G.G.S. Medical College & Hospital, Faridkot and they referred complainant to P.G.I Chandigarh. The complainant approached P.G.I Chandigarh where she was firstly treated with medicines and when there was no relief, she was again operated upon by the doctors of P.G.I and her knee was again replaced. Even by the reports prepared by the doctors of P.G.I Chandigarh the complainant came to know that all the above said problems/complications have been suffered by her due to the negilence on the part of opposite parties.
It is further alleged that due to negligence on the part of opposite parties in performing wrong operation upon the complainant, the complainant suffered huge monetary loss and health problems. The complainant paid an amount of Rs.4,92,213/- to the opposite parties on account of operation and medicine charges and also spent Rs.1,21,430/- on the medicines and food. She also spent Rs.1,71,720/- for again replacing her knee from P.G.I and for medicines. The complainant also spent around Rs.1,70,000/- on the traveling, food and staying charges at Chandigarh. Even the complainant is still visiting P.G.I Chandigarh for her post surgery check up once in a week.
The complainant also alleged that the son of complainant is doing job in the company namely Think Straight Technologies Pvt. Ltd. Noida and he is drawing salary of Rs.50,000/- per month. As the son of complainant was also compelled to take care of complainant and he remained absent from his job for about six months, the employer of the son of complainant did not pay him his salary for these six months which comes to Rs.3,00,000/- and the complainant also suffered this monetary loss due to the negligence on the part of the opposite parties. Thus, in total complainant suffered loss of Rs.12,55,363/- due to the negligence on the part of the opposite parties. The opposite parties are liable to pay Rs.7,00,000/- on account of negligence, deficient services, physical sufferings and mental agony suffered by the complainant.
On this backdrop of facts, the complainant has prayed for direction to the opposite parties to pay Rs.19,55,363/- with interest @12% P.A. from the date of filing of the complaint, till payment in addition to litigation expenses.
Upon notice, the opposite parties No. 1 to 3 appeared through counsel and contested the complaint by filing written reply raising legal objections that the present complaint has been filed by the complainant only to injure the goodwill and reputation of the opposite parties. That the complaint is false, frivolous and vexatious to the knowledge of the complainant. The complainant has concealed the fact that the complainant was attended in a proper manner, as per the need of her condition, prescribed medicines as required within medical protocol, operated upon in an efficient manner and managed well in post-operative period of the hospital stay. The complainant has concealed the fact that her Hospital stay was uneventful and afebrile. The complainant has further concealed the fact that regular physiotherapy and dressing were done in the opposite party No.3 and that she could start walking by day 2 of the surgery. The complainant has further concealed the fact that she was discharged from the Hospital on 28.04.2016 in stable condition with sutures in situ.
It has been pleaded that opposite party No. 1 Dr. Dilveer Brar who operated upon the complainant is an expert and well qualified in the field of Orthopedic surgery. Dr. Dilveer Brar is MS (Ortho) and MCH (USAIM). He has also done fellowship in Joint Replacement and Sports Medicines, Repatriation Hospital, Adelaide, Australia and is a senior consultant associated with the opposite party No. 3. Opposite party No. 2 Mr. Anubhav Sukhwani is Senior Manager, Hospital Operations at opposite party No. 3. Opposite party No. 3 is a reputed Super Speciality Hospital in Bathinda, Punjab, where the patient was treated, has got sufficient qualified team of doctors and staff who had taken care of the complainant during her stay in the opposite party No.3.
It has also been pleaded that complainant never approached opposite parties during the period of 28.4.16 to 03.5.2016. The complainant approached the opposite parties on 04.05.2016 for suture removal alongwith history of blisters, numbness and decreased movement of right foot with the rest pain since past 6-7 days. The complainant was examined and requisite investigations were done. The USG Single Limb Arterial Doppler Report dated 04.05.2016 showed no flow in the distal popliteal artery of the complainant and accordingly CTVS opinion was taken and CT Angio of Right Lower Limb was advised which revealed thrombus in the Right Popliteal Artery which is known complication of Surgery 1. Thus, the complainant was advised for Right Popliteal Artery Embolectomy (Surgery 2) which was done by Dr. Jagmohan, CTVS Surgeon on 04.05.2016, after duly explaining the prognosis and risks involved in such surgery and obtaining informed consents from the complainant.
Further legal objections are that the complaint is bad for non-joinder of necessary parties as PGI Chandigarh, where the complainant was allegedly taken/treated after leaving the hospital of the opposite parties. That there is no expert evidence on file, which could prove that the opposite parties or any of the doctors who operated upon or treated the complainant were negligent in any manner in performing the operations (Surgery 1 and Surgery 2). However, if this Commission comes to the conclusion that opposite parties are liable to pay any compensation, although specifically denied, the liability to pay the same is only of insurer of opposite parties with whom opposite parties are insured. That the complaint is totally vague with no details or allegations of any specific act of negligence.
It has been pleaded that complainant has not disclosed the fact that she was insured with Star Health and Allied Insurance Company Limited against Medi-claim Insurance policy of Rs.3,00,000/- and the amount of medical treatment of complainant was paid directly by the said Insurance company.
On merits, the opposite parties admitted that the complainant had history of advanced Osteoarthritis B/L Knee and had approached the opposite parties with history of pain in both knees, difficulty in walking etc. and the opposite party No.1 advised for Bilateral Total Knee Replacement Surgery (Surgery 1). The opposite parties denied that the complainant was assured by the opposite parties that the Surgery 1 will be without any problem. It has been pleaded that medicine is not an exact science, no doctor can guarantee any particular result. The complainant was fully informed about the risks involved in the surgery of knee replacement and the complainant had given written consent for that. The complainant was also explained about the possible risk of Embolism (blockage of artery/blood clotting) and infection. It has been admitted that complainant was admitted in the hospital of opposite parties on 20.04.2016 and operated upon on 21.04.2016 for Surgery 1 but denied that after Surgery 1, the complainant started feeling more pain on just next day or got swelling all over her leg or that the complainant has also suffered from acute pain, redness and fever of chill or felt unable to move her leg as alleged. Rather the post operative period was uneventful. Regular antiseptic dressing was done and physiotherapy was done. The post-operative x-ray Knee (Both Joints-AP & Lateral) report dated 22/04/2016 were normal. The patient was discharged in stable condition with medications and follow-up advice.
It has been pleaded that during post-operative period, the anticoagulant therapy to prevent forming of clots in the body was started on the complainant and at the time of discharge, an oral anticoagulant was prescribed as a preventive measure of Deep Vein Thrombosis ("DVT"). The complainant also started walking two days after Surgery 1. During her period of hospitalization, there were no complaints of chills or fever by the complainant as alleged. The complainant was discharged in stable condition.
It has been further pleaded that the complainant had approached the opposite parties on 04.05.2016 for suture removal after discharge on 28.04.2016 with no fresh complaints reported by her. While examining the complainant in his OPD, the opposite party No.1 noticed swelling of right lower limb of the complainant and accordingly urgent USG Single Limb Arterial Doppler and CT Angio of Rt. Lower Limb was done and after perusal of the USG Single Limb Arterial Doppler and Popliteal Artery CT Angio reports and clinical co-relation, popliteal Artery Thrombosis in the Right Limb was diagnosed in the complainant. Therefore CTVS surgeon was consulted and the complainant was advised for Right Popliteal Artery Embolectomy ("Surgery 2") and operated on 04.05.2016 after thoroughly explaining the prognosis and risks involved in such surgery to the complainant and her attendant by Dr. Jagmohan Singh. After Thrombectomy of the complainant culprit vessels of the complainant were palpable and complainant was discharged on 12.05.2016 in satisfactory condition. On follow up the complainant was doing well. The complainant even executed a satisfaction note/ testimony dated 12.05.2016.
It has also been pleaded that record of PGI produced by complainant on file of this Commission does not show any knee replacement in PGI rather the same shows Debridement and plastic surgery for some other infection in leg/foot and not with respect to knee replacement. Even in the alternative, it is a normal complication of knee replacement and not an act of negligence as alleged by the complainant. After controverting all other averments of the complainant, the opposite parties No. 1 to 3 prayed for dismissal of complaint.
The opposite party No. 1 (a) also appeared through counsel and contested the complaint by filing written reply raising legal objections that that opposite party No.1 has obtained Doctors Professional Indemnity Policy from the opposite party No. 1 (a) vide policy No.272200/48/2016/17304 effective from 30.11.2015 to 29.11.2016 regarding his residential address i.e. House No.20451, Street No.12, Guru Teg Bahadur Nagar, Bathinda and liability of opposite party No. 1 (a) is limited to Rs.20 lac for any one year and any one accident subject to terms and conditions of policy. As per present complaint, opposite party No.1 was providing his services at the hospital of the opposite party No.3 and aforesaid Max Super Speciality Hospital is not covered under the aforesaid policy. As such, opposite party No. 1 (a) is not liable to pay any compensation.
It has been pleaded that opposite party No.1 is a qualified competent Orthopedic Surgeon and has vast experience in treatment of orthopedic ailments of various patients and has provided the treatment to the complainant to his best ability. So opposite party No.1 is not negligent in providing treatment to the complainant. That intricate question of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in summary procedure under the 'Act'. That the complainant has concealed material facts and documents from this Commission as well as opposite party.
It has also been pleaded that complainant has concealed the fact that the complainant was properly attended to as per her medical condition and was prescribed medicines and operated upon in an efficient manner and no negligence is made out at all on the part of opposite party No.1 or any of its doctors. The complainant has further concealed the fact that opposite parties No.1 gave the treatment in a proper and professional manner as required under the medical jurisprudence. The opposite party No.1 who operated upon the complainant is an expert having qualification of Orthopedic Surgery and as such there is no negligence on the part of opposite party No.1 and burden of proving deficiency, if any, is on the complainant who alleges. The present complaint is bad for non-joinder of necessary party. The complainant has not impleaded PGI Chandigarh. The complainant has not produced any expert evidence to prove any alleged negligence of opposite parties. The present complaint is false, frivolous and vexatious.
On merits, the opposite party No. 1 (1) reiterated its version as pleaded and detailed above. After controverting all other averments of complainant, opposite party No. 1 prayed for dismissal of complaint.
The opposite party No.4 also put an appearance through counsel and contested the complaint by filing written reply. It has been pleaded that the alleged insurance policy is subject to confirmation from the policy issuing office regarding its genuineness and payment of premium i.e. subject to compliance of Section 64 VB of Insurance Act. That intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in summary procedure under the 'Act'. The complainant has concealed the fact that the complainant was properly attended to as per her medical condition and was prescribed medicines and operated upon in an efficient manner and no negligence is made out at all on the part of opposite party No.3 or any of its doctors. The complainant has further concealed the fact that opposite parties No.1 and 3 gave the treatment in a proper and professional manner as required under the medical jurisprudence. The opposite party No.1 who operated upon the complainant is an expert having qualification of Orthopedic Surgery and opposite party No.3 is a Super Speciality Hospital at Bathinda having good reputation and having a team of well qualified doctors and staff. That complaint is bad for non-joinder of necessary party i.e. PGI Chandigarh. The complainant has not produced any expert evidence to prove any alleged negligence of opposite parties No.1 to 3. The complainant has not disclosed that she was insured with Star Health and Allied Insurance Company against Mediclaim Insurance Policy of Rs.3,00,000/- and the amount of medical expenditure of complainant was directly paid by the said company.
On merits, the opposite party No. 4 denied that the knee of complainant was replaced at PGI again rather the record shows Debridement and plastic surgery for some other infection in leg/foot and not with respect to knee replacement. It has been pleaded that the complainant has intentionally not produced the complete record of treatment of PGI or the discharge summary. There is no negligence on the part of opposite parties No.1 to 3 in performing any operation. After controverting all other averments of the complainant, the opposite party No. 4 also prayed for dismissal of complaint.
In support of her complaint, the complainant has tendered into evidence her Affidavit dated 18.01.2017 (Ex.C-181) and photocopy of documents (Ex.C-1 to Ex.C-180).
In order to rebut the evidence of complainant, the opposite parties No. 1 to 3 tendered into evidence Affidavit of Dr. Dilveer Brar dated 28-12-2017 (Ex.OP-1/1), Affidavit of Sunil Mehta dated 28-12-2017 (Ex. OP-1/2) and photocopy of documents (Ex. OP-1/3 to Ex. OP-1/10), Affidavit of Ashish Pal dated 22.12.2017 (Ex. OP-4/1) and photocopy of policy alongwith terms and conditions containing 14 pages as (Ex.OP-4/2)
The opposite party No. 1(a) tendered into evidence affidvit of Roop Lal Baleem dated 27-2-2018 (Ex. OP-1(a)/1) and photocopy of Professional Indemnity Doctor Policy (Ex. OP-1(a)/2).
We have heard learned counsel for the parties and gone through the record.
The learned counsel for the complainant submitted that complainant was operated upon on 21-4-2016 and her knee was replaced. After replacement instead of any relief of any pain, complainant started feeling more pain and just on the next day of operation, she got swelling all over her leg. She also suffered from acute pain, redness and fever of chill. The complainant kept on complaining the said problem to opposite parties No. 1 & 2 but the opposite parties instead of curing the problems, discharged the complainant on 28-4-2016. Since there was no relief from pain, complainant got herself again admitted with the opposite party No. 3 on 4-5-2016 whereby she remained admitted upon 12-5-2016 but opposite parties could not cure the complications suffered by complainant and discharged her with the same problem. Complainant approached G.G.S Medical College & Hospital, Faridkot on 30-7-2016 and they referred the complainant to PGI, Chandigarh where she was firstly treated with medicine and when there was no relief the knee of the complainant was again replaced at PGI, Chandigarh. As per reports prepared by doctors of PGI, the complainant came to know that all the problems/complications have been suffered by complainant due to negligence on the part of the opposite parties.
On the other hand, the submission of learned counsel for opposite parties No. 1 to 4 is that complainant has not disclosed in her complaint that her both the knees were replaced. If surgery in one knee was successfully performed, how can be doctor negligent for the other. Dr. Dilveer Brar who operated upon the complainant is an expert and well qualified in the field of orthopaedic surgery. He is MS (Ortho)and Mch (USAIM). He has also done fellowship in Joint Replacement and Sports Medicines, Repatriation Hospital, Adelaide, Australia and is a senior consultant associated with the opposite party No. 3. The complainant was discharged from the hospital on 28-4-2016 in stable condition with sutures in situ. On 4-5-2016, she approached the opposite parties for sutre removal. The complainant was advised for Right Popliteal Artery Embolectomy (Surgery 2) which was done by Dr. Jagmohan, CTVS Surgeon on 4-5-2016 after duly explaining the prognosis and risks involved in such surgery. The complainant was fully satisfied with the treatment of opposite parties. The complainant even executed a satisfaction note/testimony dated 12-5-2016.
The learned counsel for the opposite parties further submitted that knee of complainant was never replaced by the doctors of PGI again. The reports prepared by doctors of PGI, Chandigarh never showed that the problem/complications have been suffered by complainant due to any negligence on the part of the opposite parties. The record of PGI reveals debridement and plastic surgery for some other infection in leg/foot and not with respect to knee replacement. There is no negligence at all on the part of the opposite parties. The complainant has not placed on file any expert evidence to prove negligence on the part of the opposite parties.
We have considered the rival contentions and have gone through the record carefully.
In the case in hand, the complainant has alleged medical negligence on the part of the opposite parties. The complainant has alleged that she was operated by opposite party No. 1 on 21-4-2016 and her knee was replaced but due to negligence on the part of opposite party No. 1, complainant was again operated by the doctors of P.G.I, Chandigarh and her knee was replaced.
Ex. OP-1/3 is the Discharge Summary issued by Max Hospital, Bathinda which reveals that complainant approached the hopital with history of – C/o Pain both knees, difficulty in walking, history dates back to about 2 years back when patient started having pain in both knees, Insidious in onset, Gradually increased, No H/O Trauma, A/W difficulty in walking, Patient initially took conservative treatment, but no relief: Now patient has come to Max Hospital for further management.
Past History – No H/O CAD/Asthma or any other chronic DS, O/E Both Lower Lines, No External Wound Present, FFD of 5 degrees, Varus deformity of 5 Degrees, ROM at knee – 5-100 degree, DP/PT Palpable, Active Toe Movements Present :
X-Ray – Grade IV Degeration both Knees
Diagnosis – Osteorarthritis both knees
Surgery done – Bilateral Total Knee Replacement (Depuy J and J)
Conditions at Discharge – Patient has taken up for surgery after all investigations were found within normal limits. Post-of period was uneventful – Regular ASD and Physiotherapy were done. Check X-rays were satisfactory. Now patient is being discharge in stable conditions with suture in situ.
Ex. OP-1/4 is the Discharge summary dated 12-5-2016 which reveals Diagnosis - Osteoarthritis Both Knees, B/L Total Knee Replacement on 21-4-2016, Right Food Drop, Acute clot in the right Popliteal Artery causing 100% block.
Surgery Performed – Emergency Right Popliteal Artery Embolectomy done on 4-5-2016 under general anaesthesia.
2nd surgery was peformed by Dr. Jagmohan, CTVS Surgeon on 4-5-2016. At the time of discharge from hospital, son of complainant even executed satisfaction note being fully satisfied with the services of the opposite parties.
Thereafter complainant approached GGS Medical College & Hospital on 30-7-2017 vide Ex. C-46 and vide Ex. C-54 she was admitted in PGI, Chandigarh on 22-8-2016 and discharged on 13-10-2016. A perusal of Ex. C-54 reveals that Debridement and plastic surgery was done by Dr. Vipin at PGI, Chandigarh. Thus, this document proved that at PGI, Chandigarh, surgery for knee replacement was not done as alleged by complainant.
The complainant has not placed on file any document to prove that opposite parties ever refused to treat/povide post operative treatment to the complainant. The complainant herself at her own decision approached GGS Medical College & Hospital, Faridkot and PGI, Chandiagrh for further/post operative treatment.
Hon'ble National Commission, New Delhi in the case 2010 (1) CPR 49 (NC) Suresh Jain Vs. Dr. Mukesh Jain and Others has held :-
“Doctors cannot be held responsible for the negligent acts of patients who are adamant and decide on their own as to what to do and when to take the treatment and do not follow the instructions given to them by the treating doctors”.
The complainant has not placed on file any expert evidence to prove any negligence on the part of opposite party No. 1 or to challenge the competency of opposite party No. 1. Record placed on file proved that opposite party No. 1 operated and replaced both the knees of complainant. There is no complaint of complainant regarding her other knee rather she has not disclosed this fact in her complaint. There is nothing mentioned in the documents issued by PGI, Chandigarh, to the effect that there was any negligence in operation or previous treatment given by the opposite parties. Negligence cannot be held proved only on the basis of mere allegations, conjectures and surmises.
In the case cited as 2010(2) RCR (Civil) 161 titled Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others, Honble Supreme Court has held that :-
“C Tort – Medical negligence – Negligence by professional such as Doctors, Lawers, architects etc., The standard to be applied for judging, whether the person charged had been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession – it is not necessary for every professional to possess the highest level of expertise in that branch which he practices – A professional charged with negligence is to show that he acted in accordance with general and approved practice – It is enough to clear him of the charge.”
“ Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.”
Thus, keeping in view the facts, circumstances and the evidence placed on file by the parties, it cannot be said that the procedure adopted by opposite parties in treating the complainant was not as per medical ethics. Thus, this Commission is of the considered opinion that complainant has failed to prove any medical negligence on the part of the opposite parties by producing cogent and convincing evidence. Hence, this complaint fails and is hereby dismissed with no order as to costs.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record room.
Announced :
24-08-2022
President (Kanwar Sandeep Singh)
