Chandigarh

StateCommission

A/24/2022

Col Mohan Singh (Retd) - Complainant(s)

Versus

Fortis Hospital - Opp.Party(s)

Devinder Kumar Adv.

21 Dec 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	24 of 2022
Date of Institution	:	11.03.2022
Date of Decision	:	21.12.2022

 

 

 

 

 

Col. Mohan Singh (Retd.), House No.2039, Sector 64, Mohali-160062.

 

……Appellant/Complainant.

Versus

1]      Fortis Hospital (through its MD), Sector 62, Phase-VIII, Mohali – 160062.

2]      Dr. G.S. Kalra, Director, Cardiology C/o Fortis Hospital, Sector 62, Phase-VIII, Mohali – 160062.

3]      Managing Director Central Org. ECHS Maudle Lines, Delhi Cantt – 110010.

4]      ECHS Regional Centre Chandigarh, ECHS Wellness Centre C/o ECHS Polyclinic/Dispensary Chandigarh, Near Govt. High School, Sector 47A, Chandigarh, U.T.

…..Respondents/Opposite Parties.

 

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   MR. RAJESH K. ARYA, MEMBER

 Argued By:-      

Sh. Baljinder Singh, Advocate for the appellant.

Sh. Munish Kapila, Advocate for respondents No.1 & 2.

Sh. Vaneet Mittal, Advocate for respondents No.3 & 4.

PER  RAJESH K. ARYA, MEMBER

                   This appeal has been filed by the complainant, namely, Col. Mohan Singh (Retd.) against order dated 11.01.2022 passed by District Consumer Disputes Redressal Commission-I, U.T., Chandigarh [in short ‘District Commission’], whereby consumer complaint bearing No.631 of 2018 filed by him was dismissed by the Ld. District Commission.

2.     Briefly stated the facts as stated in the impugned order passed by the Ld. District Commission are as under:-

“1.     The long and short of the allegations are that the complainant is a retired Army personnel. He is a beneficiary of the ECHS Scheme and became a member of ECHS as per memo dated 13.08.2003, by paying the prescribed amount of Rs.18,000/-. Copy of the said memo is annexed as Annexure C-1. The aim of scheme is to provide quality healthcare to Ex-servicemen pensioners and their dependents. As per complaint, the complainant felt breathlessness and weakness and therefore, went to ECHS Clinic, Sector 29, Chandigarh. The office of ECHS referred the complainant to Fortis Hospital, Mohali, for further investigation and treatment. Copy of the said reference which is annexed as Annexure    C-2. The Fortis Hospital is one of the empanelled hospitals under the ECHS Scheme. The Complainant was admitted in the OP Hospital and after relevant tests, the OP No.1 & 2 diagnosed that the complainant cardiac output is deficient and there is problem in cardiac impulse formation and the complainant is suffering from conduction disorders. They advised for implant of a permanent pacemaker to correct the problem in the complainant’s heart. The complainant had no reason or apprehension to doubt the senior doctor’s word to get operated under the supervision of OP No.2 in Fortis Hospital, where he was referred by OP No.4.

         As per complainant, on the next day i.e. on 02.11.2016, permanent pacemaker implantation was done and the complainant was advised to follow up in OPD. It was given the specification summary of the pacemaker which was implanted in him. The complainant was shocked that the pacemaker which was implanted in his body was not MRI compatible and was not the one which was agreed to be implanted, the copy of the brochure detailing the pacemaker and specification which is annexed as Annexure C-5. However, this claim has no sanctity because the pacemaker model mentioned in the bill is apparently different from this literature. Moreover, the doctors should have provided the original sticker of the model, which only could ensure that the said model has been implanted. The complainant had asked for an MRI compatible implant, which the OPs have conveniently ignored. As per complaint, the OP discharged the complainant and asked him to clear the outstanding dues of the treatment and the operation carried out on the complainant. The complainant was surprised, because being covered under the ECHS Scheme; it was entitled to free and cashless medical services. It was billed to the tune of Rs.1,84,683/-/. The Hospital showed only an amount of Rs.1,12,883/- as ECHS contribution/deduction and the patient share was shown as Rs.71,800/- an amount which was demanded from the complainant. Copy of discharge summary is annexed as Annexure C-6. The complainant reasoned with the OPs that he being an ECHS member should not be charged any medical expense as his complete medical treatment should be free and cashless, but the OP hospital and doctor refused to listen to the genuine request of the complainant. The complainant had to pay the demanded bill amount to get him discharged from the OP hospital. A copy of the bill which is annexed as Annexure C-7. The complainant got served upon the Opposite Party a legal notice on 03.10.2018 which is annexed as Annexure C-8 and postal receipts are annexed as Annexure C-9, but no reply to the said legal notice was received. The Complainant has filed the instant Consumer Complaint, alleging that the aforesaid act amount to deficiency in service and unfair trade practice on the part of the Opposite Party.   

2.      Opposite Party No.1 & 2 contested the consumer complaint. As per Section 24-A of the Consumer Protection Act, a complaint could have been instituted within a period of 2 years from the date when cause of action arose. The perusal of the present complaint reveals that it is dated 06.12.2018 which is beyond 2 years as prescribed under the Consumer Protection Act. This Hon’ble Commission does not have the territorial jurisdiction to hear and decide the present complaint. The Fortis Hospital, Mohali is located in Mohali. No cause of action has accrued at Chandigarh. The contents of paragraph No.5 are not admitted, as nothing to this effect was made on the prescription form Annexure C-2. In pursuance to the direction of the ECHS, DDDR Pacemaker was implanted in the case of the complainant. The Opposite Party No.1 & 2 has denied having issued detailed cost of the different implants vide Annexure C-4 and maintained that the same has not been prepared by Opposite Party No.2 and the signatures of Opposite Party No.2 are forged. The OP No.1 & 2 have alleged that the complainant has fabricated this document with ulterior motive. The complainant was clearly told by the hospital authorities that the permanent pacemaker implant which has been approved by the ECHS authorities shall be used in his case. The complainant is falsely alleging that he was shocked to know after his procedure that MRI compatible pacemaker was not implanted in his case. As per complaint, Annexure C-5 that SENSIA SEDR01 pacemaker has been implanted in the case of the complainant and the same is also mentioned in the bill at page No.37 of the complaint. In view of the same complainant has without any basis alleged that model of the Pacemaker mentioned in the bill and the one mentioned in Annexure C-5 are not one and the same. As far as the original stickers of the pacemaker are concerned that the original sticker has been provided to the ECHS.

          Opposite Party No.1 stated that prior to implantation of DDDR Pacemaker, complainant was explained about the make and quality of the pacemaker and the SENSIA SEDR01 DDDR Pacemaker available at Fortis Hospital, Mohali and that it is priced at Rs.1,55,000/-. He was informed that ECHS shall bear a sum of Rs.82,300/- and in case the complainant agrees for implanting the same, complainant shall have to pay the differential amount over and above Rs.82,300/-. Complainant agreed for the same and in pursuance to the undertaking given by the complainant’s attendant SENSIA SEDR01 pacemaker was implanted. The copy of the undertaking given by the complainant’s attendant is annexed as Annexure OP-1/2. The Opposite Party No.1 also stated that the ECHS has fixed an amount for DDDR Pacemaker. The amount so fixed is borne by the ECHS authorities and any amount over and above this has to be borne by the patient. In the present case ECHS authorities fixed an amount of Rs.83,200/-. Thus the remaining amount was to be paid by the complainant. Complainant agreed for the same and the complainant’s attendant gave an undertaking to the said effect. This fact was brought to the notice of the complainant and his attendant before the procedure. The Opposite Party No.1 also stated that both MRI compatible Pacemaker and non-MRI compatible pacemaker have the same function. Merely using a non-MRI compatible pacemaker does not hamper the quality of complainant’s life. An MRI can be performed in both non-MRI compatible pacemaker and in a MRI compatible pacemaker. Thus, there is no deficiency of service or unfair trade practice on the part of answering Opposite Party No.1 & 2. On these lines, the case is sought to be defended.”

However, when none appeared on behalf of Opposite Parties No.3 & 4 (respondents No.3 & 4 herein) despite service, they were proceeded ex-parte by the Ld. District Commission vide order dated 31.01.2019.

3.      To assail the order passed by the Ld. District Commission dismissing his complaint, it has been contended by the appellant that the Ld. District Commission has unduly placed absolute reliance on Annexure OP/1/2, which is a certificate on a printed form and does not bear the alleged signature of the appellant and therefore, in no way constitutes unconditional and express consent of the appellant. It has further been stated that the Ld. District Commission failed to properly consider the specific make, type and price of the pacemaker for which, the appellant has consented. It has further been stated that it is apparent from perusal of Annexures C-4 & C-5 & OP-1/2 that the appellant had given his consent for MRI compatible pacemaker namely Ensura MRIEN 1DI costing Rs.2,40,000/- whereas respondents No.1 & 2 implanted non-MRI compatible pacemaker namely Medtronic, not appearing in the list provided by the respondent hospital to the appellant. It has further been stated that for the said implant, the appellant consented to pay the difference in the amount between high value and the ceiling approved by ECHS but the respondent unscrupulously implanted non MRI compatible pacemaker in the body of the appellant, thus, playing with the life of the appellant for monetary gains. It has further been stated that the Ld. District Commission has not been able to appreciate the significance of Para 7 of Annexure C-10 and Para 2(a) of Annexure OP-1/3 written by ECHS Chandi-Mandir and ECHS Ministry of Defence, New Delhi respectively, whereby the appellant is entitled to cashless medical treatment in respondent hospital and charging Rs.71,800/- from the appellant is illegal and is in violation of MOA signed by the parties and the extra cost could be charged only for MRI safe device whereas the device implanted in the body of the appellant is conventional and not MRI safe/compatible. Lastly, the appellant prayed that his consumer complaint be accepted and the impugned order be set aside.

4.      On the other hand, on behalf of respondents No.1 & 2, it has been argued that as of now, more than six years have elapsed since the pacemaker was implanted in the appellant’s case and the same is working well. It has further been stated that till date, the appellant has not brought anything to show that the pacemaker is not working properly or that he needed an MRI which could not be performed upon him because of implanting a conventional pacemaker and not implanting a MRI compatible pacemaker. It has further been stated that MRI can be performed even in patients who have conventional pacemaker, which are not MRI compatible. It has further been stated that ECHS letter dated 20.01.2015 is clear to the said effect wherein it clearly states that even in patients’ conventional pacemakers, MRI can be obtained. It has further been stated that amount of Rs.71,800/- was charged from the complainant, over and above the ceiling rate prescribed by ECHS after consent/undertaking given by his son that he is ready to bear the expenses and would not claim the same from ECHS authorities. Lastly prayer for dismissal of appeal has been made by respondents No.1 & 2.

5.      Similarly, respondents No.3 & 4 in their written arguments have stated that when the appellant was diagnosed of Dyspnoea on Exertion with Palpitation, he was referred to Fortis Hospital, where permanent pacemaker was implanted on 02.11.2016 upon consent given by him and his authorized signatory to Fortis Hospital. It has further been stated that MRI compatible pacemaker is not listed under CGHS/ECHS code norms and empanelled hospital cannot claim the cost of MRI compatible pacemaker for reimbursement through ECHS. It has further been stated that express desire and consent of MRI compatible pacemaker was given to Fortis Hospital, Mohali by the appellant and this fact of consent was not known to ECHS regional centre and the same shall be clarified from Fortis Hospital. It has further been stated that ECHS beneficiary/patient is entitled to cashless treatment at empanelled hospital. It has further been stated that the prices of each type of implants are provided under ECHS Scheme and the prices are fixed for the same and if the patient desires and gives his consent to implant a higher grade or costly implant then the beneficiary/patient needs to pay to the hospital the difference in the rate of the device. It has further been stated that as per Para 2 of advisory for empanelled hospitals, dated 25.08.2015, Annexure OP-1/1, ECHS beneficiaries are permitted to get costlier IOL/Coronary Stents/any other authorized Implant/Device/Equipment after paying for the difference in cost over and above the laid down ceiling rates and a certificate to this effect duly signed by the ECHS beneficiary will be attached with the medical claim. It has further been stated that certificate has been given by the complainant, which is an express and unconditional consent wherein the appellant has undertaken to make the payment of the difference in the amount between the high value of Rs.71,800/- and the ceiling rate of the same, which is approved by ECHS. Lastly prayer for dismissal of appeal has been made by respondents No.3 & 4.

6.     We have heard the learned Counsel for the parties and have gone through the impugned order, record and the written arguments of the parties very carefully.

7.      Perusal of record i.e. Annexure C-4 and OP-1/2 reveals that on the option given to him by respondents No.1 & 2, the appellant had given his consent/choice to implant MRI compatible pacemaker costing Rs.2,40,000/- out of three MRI compatible pacemakers. The relevant Para 2 of the said Certificate/consent, Annexure OP-1/2, being relevant, reads thus:-

“2.     I hereby give my express and unconditional consent and I am willing agreeing for the installation of pacemaker  (Rs.2,40,000/-) of higher value.”

This fact has not been disputed by the respondents. However, this fact has also not been disputed that instead of MRI compatible pacemaker for which the appellant was even ready to pay the differential amount vis-à-vis ECHS rates/otherwise, even then, respondents No.1 & 2 have implanted a non-MRI compatible pacemaker against the choice/consent of the appellant. Bare perusal of Annexure C-5 transpires that SENSIA, DDR, SEDR01 Meditronic Pacemaker was implanted by respondents No.1 & 2, for which a total bill of Rs.1,84,683/- was raised, which includes Package Cost of Rs.25,500/-, room rent of Rs.3,863/-, consumables i.e. Pacemaker Dual Chamber Rate of Rs.1,55,000/- and doctor charges of Rs.270/-. Respondents No.1 & 2 have failed to give any plausible reason to go against the consent/choice of the appellant. In this bill, against the total billed amount of Rs.1,84,683/-, the ECHS share is shown as Rs.1,12,883/- and the remaining Rs.71,800/- is shown as the patient’s share. If respondents No.1 & 2 had to implant a non-MRI compatible pacemaker, then, what for the option of MRI compatible pacemaker was given or consent for a specific MRI compatible pacemaker costing Rs.2,40,000/- was obtained from the appellant. Had MRI compatible pacemaker not available with respondents No.1 & 2, either they would have referred the appellant to some other ECHS empanelled hospital or would have told the appellant about the same, so that he would have further made a choice to go with non-MRI compatible pacemaker or otherwise. The appellant also placed on record Literature pertaining to Magnetic resonance imaging (MRI) and Radio Frequency (RF) ablation and Therapeutic ultrasound, at Page 32, as part of Annexure C-5, which being relevant, reads thus:-

“Magnetic resonance imaging (MRI) – Do not use magnetic resonance imaging (MRI) on patients who have an implanted device. MRI can induce currents on implanted leads, potentially causing tissue damage and the induction of tachyarrhythmias, MRI may also cause damage to the device.

Radio frequency (RF) ablation – An RF ablation procedure may cause device malfunction or damage. Radio frequency ablation risks may be minimized by observing the following precautions:

• Keep temporary pacing and defibrillation equipment available.
• Avoid direct contact between the ablation catheter and the implanted system.
• Position the ground plate so the current pathway does not pass through or near the device and lead system. The current pathway should be a minimum of 15 cm away from the device and lead system.
• Program the device to an asynchronous pacing mode for pacemaker-dependent patients.

Therapeutic ultrasound – Do not expose the device to therapeutic ultrasound. Therapeutic ultrasound may permanently damage the device.”

From above cautions as illustrated in the said document, numerous factors can contribute malfunctioning of non- MRI compatible pacemaker or could be life threatening for a person with such an implant. It is not only Magnetic Resonance Imaging (MRI) but various other procedures like Radio Frequency (RF) ablation & Therapeutic ultrasound can also cause damage to the non- MRI compatible pacemaker, which too can bring the patient to the brink of death. Thus, it is coming out of the record that in the instant case, respondents No.1 & 2 are deficient in rendering service and also indulged into unfair trade practice by not implanting a MRI compatible pacemaker in the appellant’s body as per his consent.  

8.                As far as plea taken by respondents No.1 & 2 that as of now, more than six years have elapsed since the pacemaker was implanted in the appellant’s case and the same is working well and further that the appellant needed an MRI which could not be performed upon him because of implanting a conventional pacemaker is concerned, it may be stated here that it has no concern whatsoever with the deficiency in service and also unfair trade practice by implanting non-MRI compatible pacemaker against the choice/consent of the appellant as it is not the case of the appellant. Respondents No.1 & 2 cannot wriggle out of their own wrongs by taking such a flimsy plea.

9.                The appellant/complainant has been under constant fear since implanting of non-MRI compatible pacemaker  against his consent, which has made his life miserable. This act on the part of opposite parties No.1 & 2 definitely has lost trust of the appellant/complainant as his entire remaining life will be in fear and trauma under the impression of impending danger because of implantation of non-MRI compatible pacemaker against his wish and consent. Trust is one of the central features of patient-physician relationship. Rapid changes in the health care system are feared by many to be threatening patients’ trust in their physicians. Yet, despite its acknowledged importance and potential fragility, rigorous efforts to conceptualize and measure patient trust have been relatively few. Unfair trade practice is one of the obvious reasons for diminishing patient – doctor trust, as has been done by opposite parties No.1 & 2 in the present case.

10.              Now the question arises, to what relief the appellant is entitled to on account of deficiency in rendering service and unfair trade practice on the part of respondents No.1 & 2. The appellant has claimed refund of Rs.1,84,683/- alongwith interest @18% p.a. w.e.f. 06.11.2016 being the date of the Bill, Annexure C-7, besides Rs.16 Lakhs as lump-sum compensation and Rs.50,000/- as costs of litigation. In our considered view, the appellant is entitled to refund of Rs.71,800/- which was charged from him by respondents No.1 & 2, over and above the ceiling rate prescribed by respondents No.3 & 4 – ECHS or ECHS share to the extent of Rs.1,12,883/- shown in Bill dated 06.11.2016. However, for causing physical harassment and mental agony to the appellant coupled with deficiency in rendering service and for indulging into unfair trade practice, the appellant is also entitled to compensation of Rs.5 Lakhs which shall be paid by respondents No.1 & 2.

11.              However, we do not find any deficiency on the part of respondents No.3 & 4 ECHS, as such, the appeal is liable to be dismissed qua them.

12.              For the reasons recorded above, the appeal filed by the appellant/complainant is accepted against respondents No.1 & 2 and the impugned order dated 11.01.2022 qua these respondents is set aside. Consumer Complaint No.631 of 2018 is partly allowed with costs against respondents No.1 & 2/opposite parties No.1 & 2 and they are jointly and severally held liable and directed as under:-

1. to pay an amount of Rs.71,800/- to the appellant/complainant along-with interest @9% per annum w.e.f. 06.11.2016, within a period of 30 days from the date of receipt of certified copy of this order, failing which, the entire aforesaid amount shall carry penal interest @12% per annum from the date of passing of this order till actual realization.
2. to pay an amount of Rs.5,00,000/- (Rupees Five Lakhs only) as compensation to the appellant/complainant for mental agony and physical harassment within a period of 30 days from the date of receipt of certified copy of this order, failing which, the said amount shall carry interest @9% per annum from the date of passing of this order till actual realization.
3. to pay an amount of Rs.30,000/- to the appellant/complainant as litigation expenses within a period of 30 days from the date of receipt of certified copy of this order, failing which, the said amount shall carry interest @9% per annum from the date of passing of this order till actual realization.

13.              However, the appeal against respondents No.3 & 4 – ECHS stands dismissed with no order as to costs.

14.              Certified copies of this order be sent to the parties free of charge.

15.              File be consigned to Record Room after completion.

Pronounced

21.12.2022.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (RAJESH K. ARYA)

MEMBER

 

 

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