National Consumer Disputes Redressal
Avtar Singh & Anr. vs Dr. Jp.S. Maini on 18 March, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1973 OF 2018 (Against the Order dated 27/06/2018 in Complaint No. 89/2004 of the State Commission Delhi) 1. AVTAR SINGH & ANR. S/O. SARDAR ISHER SINGH,
R/O. GALI DURGA MANDIR KARYAN BAZAR MALOUT MUKTSAR PUNJAB 152 107 ...........Appellant(s) Versus 1. DR. JP.S. MAINI S/O. LATE SH. SARDAR SINGH, C/O. CHIRANJIV CLINIC & SAMA NURSING HOME R/O. FLAT NO 430, KAILASH TOWERS-II,
MOUNT KAILASH EAST OF KAILASH NEW DELHHI 110049 2. MS. HARPREET KAUR D/O. SH. AVTAR SINGH, R/O. GALI DURGA MANDIR KARYAN BAZAR MALOUT MUKTSAR PUNJAB 152 107 ...........Respondent(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Appellant : For the Respondent :
Dated : 18 Mar 2020 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For Dr. P. S. Maini
:
Mr. Sukumar Pattjoshi, Sr. Advocate with
Ms. Deepti Arya, Advocate
For Avtar Singh & Anr.
:
Mr. Rajiv R. Mishra, Advocate
along with the Complainant No. 1 in person
PRONOUNCED ON: 18th March 2020
ORDER
PER DR. S. M. KANTIKAR, PRESIDING MEMBER
1. This order shall decide both the appeals filed against the impugned order dated 27.06.2018 of the Delhi State Consumer Disputes Redressal Forum, (for short "State Commission") passed in Complaint No. 89/2004, whereby the complaint was allowed.
2. The facts are drawn from the First Appeal No. 1973 of 2018 and the parties are placed as in the position in the complainant.
Brief facts of the case are that the complainant no. 2 Ms. Harpreet Kaur (herein after referred to as 'the patient') consulted Dr. P. S. Maini (OP) on 03.06.1999. She was diagnosed as suffering from polio vulgas in the right foot. The OP advised surgery for right foot. Thereafter, on 30.05.2003, the patient was admitted by her father Avtar Singh (complainant no. 1) in the OP's clinic and after necessary tests, the patient gave authorization and consent to carry out the proposed operation. The Anesthetist checked the fitness of the patient for anesthesia, and stated that operation was for soft tissue correction, but not mentioned about which of the two feet (right or left) was to be operated. It was alleged that, the OP himself had advised the operation of the right foot of the patient, but he negligently operated on the left foot. After the operation, OP issued one certificate mentioning that left foot of the patient was operated. During follow up, on 23.07.2003, the OP examined the patient, found that she was unable to walk on her left foot. After about a month on 22.08.2003, the patient was again examined by the OP and advised for crepe bandage for two to three weeks if she had difficulty in walking. The same advice was repeated on 01.09.2003 visit. Being aggrieved by the alleged treatment of OP which spoiled the life of the patient, the complainant no.1 served a legal notice upon the OP on 25.09.2003. However, the OP did not give reply to the legal notice. Therefore, the complainant filed a consumer complaint before the State Commission, Delhi for claiming compensation to the tune of Rs. 20,50,000/-.
3. The OP doctor filed his written version and denied all the allegations. In relation to legal notice, OP stated that he has not received any notice. He submitted that both the feet were affected by polio. As per normal practice, better foot is to be cured first before starting the treatment on worst foot. Therefore, the decision of treatment shall be taken by the treating doctor. OP further submitted that the consent form did not reflect as to which foot was to be operated upon first, therefore, the complainants are taking the frivolous ground about operation of wrong side foot. The patient was advised firstly for the Lambrinudi triple fusion on the left side. Relying upon authorization form and the consent form, he performed the operation in the best interest of the patient. OP submitted that complainant no. 1 while signing the form could have written that operation of right foot was required, but deliberately he did not fill the said column. The OP in his best judgment would decide which foot was to be operated first. The Anesthetist was not a specialist to decide the nature and part was to be operated upon. Therefore, in the pre-anesthesia record, he mentioned as soft tissue correction. According to the OP, surgery was performed on left foot so that better functioning of lower limb was made to walk patient properly and thereafter other foot was to be operated. He further submitted that after surgery during follow-up the patient was made to walk without any pain and instability of the left foot after the operation. OP denied about loss of sensation in the patient's left foot.
4. The State Commission after hearing the parties and considering the evidence held the OP liable for medical negligence and directed OP to pay to the complainant no.2 Ms Harpreet Kaur (patient) compensation of Rs.10 lakh alongwith interest @ 7% per annum from the date of filing of the complaint.
5. We heard the learned counsel for both the sides and perused the material on record.
6. We note on 03.06.1999, the patient consulted the OP doctor the first time, who diagnosed it as polio vulgas in the right feet. As per the said prescription, OP advised surgery for right foot. However, after 4 years, on 20.05.2003 the complainant no.1 i.e. patient's father approached OP again for the proposed operation. The OP again examined the patient but treated the left feet and on 30.05.2003 performed operation upon the left foot. We also note that the pre-anesthetic notes entered by the Anesthetist shows the proposed operation as "Soft tissue correction", he did not mention about the Lambrinudi triple fusion. In our view, at this stage we find no significance to the anesthetist's said note. We find as per Ex C/7, the OP recorded on 23.07.2003 in his own handwriting that the patient had lost walking in the left foot. We are unable to understand why left foot lost its walking capacity despite the requisite surgery performed on the left foot, nothing was forthcoming from the submission of OP or the medical record. Thus, we do not to agree with the contention of the OP that, in his best judgment he operated the left foot of the patient. Thus, it was the failure of duty of care, instead of operating on right foot, wrongly the left foot was operated upon by the OP.
7. The OP in his defense vehemently relied upon the authorization form and the consent form signed by the father of patient. However, we note both the forms show the portion meant for indicating the part for surgery was left blank. Such blank place or empty dotted line/column goes to show the casual approach of the operating surgeon. We know the OP is a qualified Orthopedician, but not verifying the details mentioned in the consent form is not acceptable. It could be that as a common practice the consent form is filled by a junior doctor and believing the correctness or without verifying the correctness the operating surgeon carries out the procedure. However, in the eyes of law, this is deficiency / failure of duty of care and thus the master of the ship, the operating surgeon, is in all contingencies liable. It was the duty of the operating surgeon to check the consent form thoroughly before putting the knife. We also do not accept the OP's submission that the complainant no.1 while signing the consent form deliberately kept the column blank. In our view it was not the duty of patient or relatives to fill it and give any instruction to the doctor, but it was the duty cast upon the hospital and the OP doctor. It was the mandatory duty on the treating doctor to explain the patient or relatives/ attendants about the risks/benefits involved and the course of action/ procedure or the alternatives available etc. Thus, partially unfilled/blank consent form, in our view is not an 'informed consent' in the instant case. This in itself amounts to 'deficiency in service'.
8. Now, adverting to the two opinions placed by the OP, same are reproduced as below:
Ist Opinion:
DEPARTMENT OF ORTHOPAEDIC SURGERY, PARAPLEGI A AND REHABILITATION Pt. B.D. Sharma Post Graduate Institute of Medical Sciences, Rohtak - 124001 (Haryana) Date.............
Ref. No.........
From:
Dr. N.K. Magu Sr, Prof & Head of Orthopaedics Pt. B.D.Sharma, PGIMS, Rohtak "Certified that in various orthopaedic ailments where in both the lower limbs are affected; Of the two limbs, better side is operated to improve the locomotion of the patient by providing stability of the joints, improvement in muscle power and limb length equality. Various such ailments include asymmetrical paralytic conditions (poliomyelitis or cerebral palsy), trauma or infection that damages the physis, tumour or tumour like conditions that affect bone growth by stimulating asymmetrical growth such as occurs with juvenile rheumatoid arthritis or post fracture hypervascularity. In all such conditions treatment must be tailored to the specific conditions and needs of the individual patients. Treatment plans can be formulated only after a careful evaluation that includes assessment of the chronological and skeletal ages of the patient. A person whose both lower limbs are involved; of the priorities of management, the first is to get the patient walking, and then to correct factors that will obviate or reduce a lifetime dependency on an external brace.
I am ready to appear in the court of law as a witness to give my evidence.
Dated: 10.06.11 Dr. N.K.Magu" IInd Opinion: "Dr. Hardas Singh Sadhu, M.S.F.R.A.C.S.,F.A.M.S. Ex-Prof. and Head Deptt. of Orthopaedics, Govt. Medical college, Amritsar 882,CircularRoad, Amritsar Ph. No. 01832223620, 2564056 Fax: 2227456 Mob. 9819107530 Consultant Orthopaedic surgeon Dr. Hardas Singh Orthopaedic Hospital, & Super Speciality Research Centre, ASR. To whom it may concern.
This is to certify that I have remained Professor of Orthopaedics for 19 years in Govt. Medical College, Patiala and Amritsar and have treated patients of Poliomylities with Residual Paralysis. In my experience, Poliomylitis commonly produces assymetral paralysis of the lower limbs, extensive paralysis involving multiple groups of muscles on one side and localized paralysis involving one or two groups of muscles on the other limb, while treating such cases it has been my preference to treat the minimum affected limb first so that we give the patient a stable limb which may not require external support. The other limb which has extensive paralysis and requires multiple procedures is preferably treated afterwards. If required I can attend the court for any further clarification on this subject.
(Dr.H.S. Sandhu) H.No. 883, Circular Road, Amritsar - 143001"
On bare perusal, in our view, both the opinions are generalized in nature and have no significance to the instant case of negligence.
9. Based on the foregoing, we concur with the findings of deficiency / medical negligence arrived at by the State Commission in its well-appraised and well-reasoned Order of 27.06.2018.
10. The Complainant filed an appeal no 1973 of 2018 for enhancement of compensation. Let us discuss how much enhancement the complainant deserves in the instant case. As per medical record the patient was facing problem in walking and on 30.06.1999 initial diagnosis done by OP was the Right foot Polio vulgus. The operation for right foot was suggested. The patient did not take the treatment at that time, but approached OP after 4 years in May 2003. The OP after examination diagnosed it as a case of post-polio equino vagus both feet. The OP performed operation of left foot on 30.05.2003 and decided surgery on right foot on another date. The main grouse of the complainants is the OP operated on the Left foot which was normal, instead of the affected right foot as stated by OP in year 1999.
11. Admittedly, the patient was already suffering from post-polio equino-vulgus and having deformity. On the one hand, the complainant does not deserve any hefty enhancement of compensation, as prayed for by her, but, on the other hand, in the totality of the case, considering the deficiency / negligence, we find it just and equitable to enhance the compensation by Rs. 1,00,000/- (in addition to Rs. 10,00,000/- awarded by the State Commission). The State Commission's Award is modified to the afore extent. The rest of its Award remains untouched.
12. Consequently, the First Appeal No. 1326 of 2018 filed by Dr. P.S. Maini is dismissed, and the First Appeal No. 1973 of 2018 filed by the complainants is partly allowed.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER