State Consumer Disputes Redressal Commission
Harjinder Kaur vs Fortis Health Care on 9 February, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 55 of 2012
Date of institution: 28.06.2012
Date of order reserved: 02.02.2017
Date of Decision: 09.02.2017
Harjinder Kaur wife of Arbinder Pal Singh Bajwa, resident of Railway Road,
Partap Nagar, Gurdaspur, now resident of H. No. 1066/1, Sector 39-B,
Chandigarh.
Complainant
Versus
1. Fortis Health Care India Ltd., through its Director, Regd. Office
Escorts Health Institute and Research Centre, Okhla Road, New
Delhi - 110025
2. Fortis Hospital through its Director, Phase VIII, Sector 62, Mohali,
Tehsil and District Mohali.
3. Dr. Manuj Wadhwa, Additional Director, Department of Orthopedic
and Joint Replacement, Fortis Hospital, Phase VIII, Sector 62,
Mohali, Tehsil and District Mohali.
4. Dr. Harsimran Singh, Attending Consultant Orthopaedician,
Department of Orthopaedic, Fortis Hospital, Phase VIII, Sector 62,
Mohali, Tehsil and District Mohali.
Opposite Parties/Respondents
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the complainant : Sh. Ashish Gupta, Advocate
For opposite parties Nos. 1, 2 & 4: Sh. Munish Kapila, Advocate
For opposite party No. 3 : Sh. Jitender Nagpal, Advocate
Consumer Complaint No. 55 of 2012 2
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 (in short 'the Act') against respondents/opposite parties (hereinafter referred as Ops) on the averments that she is aged about 67 years and in the year 2008, she developed a problem in her right knee. She consulted Op No. 3 in his private clinic at Amritsar. On discussion, it was advised by Op No. 3 that the problem can be solved with knee replacement and it can be done in a better way in Fortis Hospital, Mohali. On 3.9.2008, complainant alongwith her husband met Op No. 3 in Fortis Hospital, Mohali and he advised for replacement of both the knees but complainant stated that she had no problem in the left knee but Op No. 3 firmly stated that within a span of 2-3 years, the left knee will also develope a same problem, if not operated alongwith right knee. In case both the knees are operated at different dates then there are chances that one leg may become short by 1-2 inches than the other. As per the consultation offered by Op No. 3, she made up her mind for replacement of both the knees. She was admitted in Op No. 1 on 12.9.2008 and she was operated by Op No. 3 on 13.9.2008. She remained admitted there from 12.9.2008 to 20.9.2008 and on complete process, she was discharged on 20.9.2008 and paid a bill of Rs. 2,75,347.70p. The complainant used to take 5-6 steps under the medical advice to move but every time when she tried she was feeling that her knee is falling down. It was brought to the notice of Op No. 3 but it fell on his deaf ear. The pain continued in left knee. Consumer Complaint No. 55 of 2012 3 She alongwith her husband again met Op No. 3 on 21.10.2008 and Op No. 3 advised that braces have to be put in left knee and for that left knee is to be opened again for the surgery. On 7.11.2008, she had fever and also mild dengu fever and she was treated for that for the period 10.11.2008 to 26.11.2008 and spent a sum of Rs. 1,67,389.95p on this treatment. On 29.12.2008, she developed constipation and she was again admitted in Op Hospital from 29.12.2008 to 1.1.2009 and incurred expenses of Rs. 1,46,591.01p. In December, 2009, she developed a problem in the left knee and it started leaking and the infection in the shape of puss started oozing out from the left knee. It was brought to the notice of Op No. 3 but he took it in a casual way. The problem persisted for a long time. When it became aggravated, she approached Op No. 3, who advised certain tests. She undertook those tests and after conclusion of the test opinion was formed by Op No. 3 for revision of left knee. For that she was admitted in Op Hospital on 7.4.2010 and infected knee i.e. left knee was removed and debridement was done and antibiotic spacer was inserted and she was discharged on 20.4.2010. She spent a sum of Rs. 3,52,785.79p for this procedure. Although she was discharged from the hospital but she was still feeling pain. Even after spacer was put in, the life of the complainant did not improve, rather, her miseries pain and suffering kept on increasing. The life of the spacer was only six weeks but Op No. 3 did not choose to remove it and it was removed after a gap of 8½ months. At this time, the case was dealt with by Op No. 4. The medical tests and other investigations were carried out and it transpired that spacer so inserted was to be Consumer Complaint No. 55 of 2012 4 removed and accordingly, Op No. 4 conducted the surgery and got the spacer removed. After removal of the spacer, again left knee was replaced by putting a new implant and was discharged on 31.12.2010. She spent a sum of Rs. 4,38,868.90p for this procedure. The knee remained in a satisfactory stage for 6 months and then it started pain whereas discharge was reduced. Then right knee also started developing pain and it became difficult for the complainant to walk. She met Op No. 4 on 19.7.2011. X-ray of right knee was done. In the said X-ray, looseness of right knee implant was shown and whole body scanning was done on 9.9.2011 and there was no symptoms of any infection in the body and looseness of right knee was due to negligence on the part of Op No. 3. The problem aggravated and complainant was admitted with Op No. 3 on 3.11.2011. The complainant was operated for revision of right knee and after that she was discharged on 11.11.2011. On this procedure, she incurred a sum of Rs. 3,56,428/- and revision of the right knee is perfectly fine. Complainant had no grudge against Op No. 4 but he has been made a party as treatment was given by him. When the left knee continued leaking then complainant approached GMCH, Sector 32, Chandigarh for the treatment. It has been alleged that Op No. 3 gave a wrong advice for replacement of left knee and surgery was not proper as problem started immediately after the surgery and was not rectified by Op No. 3. In all the procedures, the complainant spent a sum of Rs. 18,57,786/-. It happened due to medical negligence on the part of Ops. Accordingly, this complaint has been filed before this Commission for refund of the expenses of hospital and medicines of Consumer Complaint No. 55 of 2012 5 Rs. 20 lacs, expenses incurred on domestic help, transportation and private health care Rs. 5 lacs, routine medical expenses Rs. 2 lacs, treatment from GMCH, Chandigarh Rs. 1 lac, special diet Rs. 50,000/- and compensation for pain and suffering and loss of pleasure of life Rs. 10 lacs and in all Rs. 38,50,000/- alongwith interest @ 18% p.a.
2. Complaint was contested by Ops. They filed their written reply taking preliminary objections that the complaint is wholly misconceived and unwarranted as there was no negligence on the part of Op Nos. 1 to 3; the complaint is flagrant abuse of process of law and has been filed just to harass, malign and blackmail the Ops. Complainant has failed to show as to how Op No. 3 was negligent in any manner whatsoever; the complaint is bad for non-joinder of necessary parties i.e. GMCH, Sector 32, Chandigarh and PGIMER, Chandigarh. In fact the complainant was suffering from Osteoarthritis of joints with age. In total knee replacement worn out surfaces of knee joint are removed and replaced with implants called prosthesis, improving quality of life. When complainant visited private clinic of OP No. 3 at Amritsar, she had an X-ray film, clearly indicating Osteoarthritis of both knee and after radiological assessment and clinically examining the complainant, Op No. 3 advised her bilateral total knee replacement. Since Op No. 3 was given a camp discount of Rs. 50,000/- in case of bilateral knee replacement, she was advised to visit Op No. 1 and accordingly, complainant visited Op No. 3 in Op No. 1. The investigation revealed bilateral osteoarthritis of both knees whereas it was greater in right knee and it is wrongly interpreted by Consumer Complaint No. 55 of 2012 6 the complainant. After going for pre-operative tests/Urine/Echo and Stress Echo, PFT/Vital markers, which were normal, she was advised surgery and she got her admitted in Op No. 1 on 12.9.2008 and after getting written consent for bilateral total knee replacement, surgery was conducted on 13.9.2008. Op No. 3 regularly visited the complainant. Physiotherapist notes also clearly show that complainant was walking and going to toilet. Post operative report show no loosening and accordingly, she was discharged on 20.9.2008. On 10.11.2008, complainant was again admitted in Fortis Hospital, Mohali. She was suffering from Urinary Tract Infection and Dengu as Urine Culture Grew "E.Coli" and after treatment she was discharged on 26.11.2008. Complainant was again admitted with Op No. 1 on 29.12.2008 under Dr. Vikas Bhutani and she was diagnosed with UTI (E.Coli), Sepsis, Haemorrhoids, Moderate Anemia, Proctitis, Chronic Constipation and after treatment, she was discharged on 1.1.2009. On 4.1.2009, complainant presented with medicine OPD and she was advised to get urine culture, CBC and Serum Creatinine. Her urine culture was positive and revealed evidence of E-Coli with significant colony count. She again came to Medicine OPD on 12.1.2009 and was advised antibiotic in recurrent UTI. She got repeated urine culture on 12.1.2009. She was also advised to repeat the sample and repeat sample showed mixed bacterial flora. She again approached Medicine OPD on 19.1.2009. Her CBC revealed anemia and her Serum Creatinine was elevated at 1.6. She had been regularly follow-up in Medicine OPD for this treatment. She visited OP No. 3 on 17.9.2009 and was advised X-ray both knees, which Consumer Complaint No. 55 of 2012 7 showed metallic prosthesis in situ, which indicated no signs of loosening on X-ray reports. She was also advised CT Scan left knee to rule out loosening of TKR Prosthesis and she showed no loosening. On 7.4.2009, her repeat urine culture was performed. It showed evidence on E-Coli with significant colony count. Her CRP was also elevated. She was examined by Urologist Dr. A.S. Bawa on 9.4.2009 and history noted by the Urologist clearly showed that patient was having recurrent infection of urinary tract and reinfections. Although her infection rate was in between 1 to 2%, however, the incident increased manifold, if the patient develops urinary tract. The complainant again visited Op No. 3 on 5.4.2010. She was transferred one unit of blood and planned for first stage revision TKR of the left knee. In view of the discharge of the left knee, the reason for revision was that complainant was having recurrent urinary tract infection as infective foci travelled by blood stream to the implant joint surface and bacteria multiplication happened at the joint surface, which caused de-bonding at the implant cement interface leading to loosening of the implant and causing discharge from left knee. In case of septic knee replacement revision is done in two stages. In the first stage, aim is to eradicate the infection. In place of implant, an antibiotic spacer block is inserted which can elute anti-biotics and controlled infections. Once infection is controlled the next stage is insertion of knee implant and on 7.4.2010 after due consent, antibiotic spacer was implanted. Thereafter, complainant appeared before Op No. 4. In Op No. 4 clinical assessment previous knee aspirates were sterile and there was no evidence of infection. However, Op No. 4 ordered Consumer Complaint No. 55 of 2012 8 for WBC scan(whole body scan) of the knee joint, which was available at PGI only. Since bone scan did not show evidence of residual infection so complainant was taken up for revision TKR left knee i.e. stage two. She was admitted in OP Hospital from 23.12.2010 to 31.12.2010. Op No. 4 took 4-5 intra-operative samples deep within the knee joint. One of these sample showed evidence of E-coli indicated some bacteria was lying dormant under the cement spacer and anti-biotic was started and patient had uneventful recovery. Thereafter complainant again came to Op Hospital with complaint of pain in right knee. X-ray showing lossening of right TKR. Aspiration of knee joint was done. WBC scan was repeated at PGI, which showed no evidence of infection. Complainant was admitted for revision of right TKR, which was done on 5.11.2011. Complainant remained admitted with Op Hospital from 3.11.2011 to 11.11.2011. However, Intra-operative samples taken during procedure showed signs of E-Coli infection and loosening of right TKR because of E.Coli infection. As per complainant admission, her right knee is functioning normal. Complainant in December, 2011 again complained for recurrence of infection in left knee. Culture showed E-Coli and after that the complainant followed up with GMCH, Sector 32, Chandigarh. Complainant was rightly advised by the Doctor total knee replacement after radiological and clinical assessment. Subsequently, the complainant had recurrent UTI and other problems. It was case of E-Coli detected in her urine culture resulted infection at implant site, which resulted into sepsis and finally the infected implant was removed and spacer was inserted. The treatment was given as per Consumer Complaint No. 55 of 2012 9 the recognised medical protocol and Doctors acted in the best of their ability in a prompt and proper manner. Therefore, there was no negligence, deficiency in service in giving the treatment. On merits, admission and treatment as referred above in preliminary objections was reiterated. It was again reiterated that the treatment was given as per recognized medical protocol as fully described above in the preliminary objections. Therefore, no medical negligence or deficiency in providing services on the part of Ops. Complaint is without merit, it be dismissed.
3. Parties were allowed to tender their evidence.
Complainant in his evidence has tendered the evidence her affidavit Ex. CA, medical opinion dt. 3.9.08 Ex. C-1, discharge card Ex. C-2, bills Ex. C-5, bills Ex. C-7, diacharge summary dt. 20.4.10 Ex. C-10, bills Ex. C-11, discharge summary Ex. C-12, medical summary of GMCH 32 Ex. C-13, bills Ex. C-14, sum total of bills Ex. C-15, certificate of Dr. Sudhir Kumar Ex. C-16, discharge and follow up card Ex. C-17, certificate of Dr. Sudhir Kumar Ex. C-18, DDR Ex. C-19. On the other hand Ops had tendered into evidence affidavit of Sh. Abhijit Singh, Facility Director, Fortis Hospital, Mohali as Ex.OP-A and another affidavit of Dr. Harsimran Singh, Director of Orthopaedic, Fortis Hospital, Mohali as Ex.OP-B along with documents i.e. copy circulation as Ex.OP-2/1, copy of prescription slip dated 03.09.2008 as EX.OP-2/2, copy of test reports dated 3.09.2008 as EX.OP-2/3, copy of consents as EX.OP-2/4, copy of doctor's visit record as EX.OP-2/5, copy of physiotherapy notes as EX.OP-2/6, copy of X-ray as EX.OP-2/7, copy of discharge summary/date of discharge Consumer Complaint No. 55 of 2012 10 20.9.2008 as EX.OP-2/8, copy of bill dated 20.09.2008 as EX.OP-2/9, copy of discharge summary/date of discharge 26.11.2008 as EX.OP- 2/10, copy of bill dated 26.11.2008 as EX.OP-2/11, copy of prescription slip dated 1.12.2008 as EX.OP-2/12, copy of laboratory report dated .1.12.2008 as EX.OP-2/13, copy of prescription slip dated 3.12.2008 as EX.OP-2/13-A, copy of discharge summary/date of discharge 01.01.2009 as EX.OP-2/14, copy of bill dated 01.01.2009 as EX.OP-2/15, copy of prescription slip dated 07.01.2009 as EX.OP-2/16, copy of laboratory report dated 07.01.2009 as EX.OP-2/17, copy of prescription slip dated 12.01.2009 as EX.OP-2/18 copy of laboratory report dated 17.09.2009 as EX.OP-2/19, copy of laboratory report dated 17.01.2009 as EX.OP-2/20, copy of prescription slip dated 129.01.2009 as EX.OP-2/21, copy of laboratory report dated 19.01.2009 as EX.OP-2/22, copy of prescription slip dated 06.02.2009 as EX.OP-2/22-A, copy of laboratory report dated 6.2.2009 as EX.OP-2/23, copy of prescription slip dated 17.2.2009 as EX.OP-2/24, copy of X-ray report as EX.OP-2/25, copy of prescription slip dated 06.04.2009 as EX.OP-2/26, copy of X-ray as EX.OP-2/27, copy of lab report dated 07.04.2009 as EX.OP-2/28, copy of prescription slip dated 09.04.2009 as EX.OP-2/29, copy of lab report dated 02.05.2009 as EX.OP-2/30, coy of lab report dated 09.05.2009 as EX.OP-2/31, copy of discharge summary/date of discharge 20.04.2010 as EX.OP-2/32, copy of bill dated 20.04.2010 as EX.OP- 2/33, copy of medical literature as EX.OP-2/34, copy of lab report as EX.OP-2/35, copy of discharge summary/date of discharge Consumer Complaint No. 55 of 2012 11 11.11.2011 as EX.OP-2/37, copy of lab report as EX.OP-2/38, copy of bill dated 11.11.2011 as EX.OP-2/39, copy of power of attorney as EX.OP-2/40, copy of the prescription slip as EX.OP-4/1, copy of prescription slip as EX.OP-4/2. Op No. 3 had tendered into evidence affidavit of Dr. Manud Wadhwa As EX.OP-C along with document i.e. copy of circulation as EX.OP-3/1, copy of prescription slip dated 03.09.2008 as EX.OP-3/2, copy of test reports dated 3.09.2008 as EX.OP-3/3, copy of consents as EX.OP-3/4, copy of doctor's visit record as EX.OP-3/5, copy of physiotherapy notes as EX.OP-3/6, copy of X-ray as EX.OP-3/7, copy of discharge summary/date of discharge 20.9.2008 as EX.OP-3/8, copy of bill dated 20.09.2008 as EX.OP-3/9, copy of discharge summary/date of discharge 26.11.2008 as EX.OP-3/10, copy of bill dated 26.11.2008 as EX.OP-3/11, copy of prescription slip dated 1.12.2008 as EX.OP-3/12, copy of laboratory report dated .1.12.2008 as EX.OP-3/13, copy of prescription slip dated 3.12.2008 as EX.OP-3/13-A, copy of discharge summary/date of discharge 01.01.2009 as EX.OP-3/14, copy of bill dated 01.01.2009 as EX.OP-3/15, copy of prescription slip dated 07.01.2009 as EX.OP-3/16, copy of laboratory report dated 07.01.2009 as EX.OP-3/17, copy of prescription slip dated 12.01.2009 as EX.OP-3/18 copy of laboratory report dated 17.09.2009 as EX.OP-3/19, copy of laboratory report dated 17.01.2009 as EX.OP-3/20, copy of prescription slip dated 129.01.2009 as EX.OP-3/21, copy of laboratory report dated 19.01.2009 as EX.OP-3/22, copy of prescription slip dated 06.02.2009 as EX.OP-3/22-A, copy of laboratory report dated Consumer Complaint No. 55 of 2012 12 6.2.2009 as EX.OP-3/23, copy of prescription slip dated 17.2.2009 as EX.OP-3/24, copy of X-ray report as EX.OP-3/25, copy of prescription slip dated 06.04.2009 as EX.OP-3/26, copy of X-ray as EX.OP-3/27, copy of lab report dated 07.04.2009 as EX.OP-3/28, copy of prescription slip dated 09.04.2009 as EX.OP-3/29, copy of lab report dated 02.05.2009 as EX.OP-3/30, coy of lab report dated 09.05.2009 as EX.OP-3/31, copy of discharge summary/date of discharge 20.04.2010 as EX.OP-3/32, copy of bill dated 20.04.2010 as EX.OP- 3/33, copy of medical literature as EX.OP-3/34.
Misc. Application Nos. 2246 of 2013 & 127 of 2014
4. Applications have been moved by the counsel for the complainant to refer the matter to an expert Medical Board whether the procedure adopted by the Ops was correct or whether any post operative negligence on the part of Ops. However, counsel for the Ops stated that onus was upon the complainant to prove his case and Court cannot become a party in favour of any party to fetch the evidence, therefore, the application is without merit, it be dismissed.
5. We have considered the contentions as raised by the counsel for the parties.
6. The complaint has been filed by the complainant alleging case of medical negligence or deficiency in service on the part of Ops and onus is upon the complainant to prove this fact. It has been so held in the judgment 2015(2) CLT 310 (NC) "Ram Gopal Yadav Vs. Pushkar Anand (Dr.) and others". Therefore, it was the duty of the complainant to bring appropriate evidence to support his contention. The Commission cannot become a party to fetch evidence on behalf Consumer Complaint No. 55 of 2012 13 of any party, therefore, we do not see any merit in these applications, the same are hereby dismissed.
MAIN CASE
7. We have heard the counsel for the complainant Sh.
Ashish Gupta, Advocate, counsel for opposite parties Nos. 1, 2 & 4 Sh. Munish Kapila, Advocate and counsel for opposite party No. 3Sh. Jitender Nagpal, Advocate and have also gone through the written arguments submitted by counsel for the parties.
8. As per the case of the parties, the complainant had a problem in her knees, accordingly, she consulted Op No. 3 in her private clinic at Amritsar on 29.8.2008 alongwith X-ray film. An observations was made by Op No. 3 indicating Osteoarthritis of both knee, however, it was greater in left knee then the right knee. It was advised total knee replacement. As per the pleadings of the complainant, Op No. 3 had advised that Op Nos. 1 & 2 have required facilities, which is a world class hospital and she should get the treatment in that hospital. Accordingly, complainant visited Op Hospital and X-ray was done in Op Hospital on 3.9.2008 and the report of the X-ray is moderate bilateral Osteoarthritis right>left. After taking other pre-surgery test, the complainant was admitted in Op Hospital on 12.9.2008 and total knee replacement was done on 13.9.2008 as per the discharge summary Ex. C-1(page 53). The grouse of the complainant as per the complaint is that she was not facing any problem in the left knee. However, as per the advice given by Op No. 3 that she will have problem within a span of 2-3 years in case the left knee is not replaced and in case bilateral knee Consumer Complaint No. 55 of 2012 14 replacement is done in one go then there will be no length problem in the leg, otherwise, one leg can be short by 1-2 inches than the other. Accordingly, the complainant had agreed for total knee replacement. The complaint of the complainant is that complainant had a problem in the right knee and replacement of left knee was unnecessarily advised by Op No. 3. However, in view of the X-ray report and report of Op No. 3 dated 29.08.2008, it has been clearly indicated that there was Osteoarthritis of both knees, although it was greater in right knee and total replacement was recommended and then X-ray of both knee joint AP & LAT was done in Fortis Hospital on 3.9.2008 and it also give a report of moderate bilateral Osteoarthritis in right and left knee. Although in the right knee, it was greater then the left knee and after that consent was taken from the complainant and then total knee replacement was done. The counsel for the complainant could not controvert the X-ray reports. He could not indicate that there was no problem in the left knee. Osteoarthritis was also in the left knee. It was suggested by Op No. 3 that it will be in the interest of the patient in case patient goes for total knee replacement, which was accepted by the complainant and total knee replacement was done. Therefore, now the complainant is estopped by her own act and conduct to say that there was no problem in the left knee. Whereas the report of the X-ray and observations made by the Doctor suggest that there was problem of Osteoarthritis in the left knee as well. Therefore, the plea taken by the counsel for the complainant that Op No. 3 wrongly advised for left knee replacement is incorrect and is not corroborated on the basis of evidence on the record.
Consumer Complaint No. 55 of 2012 15
9. The next point raised by the counsel for the complainant is post operative treatment as the pain started in the left knee on account of loosening the implant that is why revision TKR left knee was done by Op Hospital and even then it could not be rectified and ultimately, left leg above the knee had to be amputated, which shows medical negligence on the part of Ops No. 1 to 3. It has been stated by the counsel for the complainant in the complaint as well as in the oral and written arguments that he does not have any complaint with the treatment given by Op No. 4, since a part of the treatment was given by Op No. 4, therefore, Op No. 4 has been impleaded as a party to it. For the 2nd time, the complainant was admitted with Op Hospital from 10.11.2008 to 26.11.2008 and the course of her treatment was fever and mild dengu, which is totally separate procedure and has nothing to do with the knee replacement. For the 3rd time, the complainant was admitted with Op Hospital from 29.12.2008 to 1.1.2009. During that period, she had developed constipation and treatment was given for that problem. This treatment also does not have any bearing with regard to knee replacement. Although it has been stated by the counsel for the complainant that constipation developed due to knee replacement but counsel for the complainant could not put/refer any document showing the nexus between the knee replacement and the constipation, therefore, these procedures does not have any bearing with regard to treatment of knee replacement.
10. For the first time in 2009, the complainant felt a problem in her left knee as leaking in the form of pus started oozing from the Consumer Complaint No. 55 of 2012 16 left knee. Op No. 3 advised X-ray of both knee, which showed metallic prosthesis. CT Scan of left knee was also advised to rule out the loosening and her urine culture was performed and showed evidence of E-Coli and antibiotics were given. Since the patient was having recurrent urinary tract infection, which caused de-bonding at the implant cement interface, therefore, revision TKR of the left knee was advised in the first stage. Implant and cement is removed and all visible tissue is excised and cleaned. In place of implant, an anti biotic spacer block is inserted which can elute anti-biotics and controlled infections. It is so clear from the discharge summary Ex. Op-2/32 in which under the column diagnosis, it has been mentioned as under:-
"Septic Knee Left Side Revision TKR left side done on 7.4.10.
Medication induced gastritis.
In the present illness, it has been referred as under:-
"Patient underw3ent Bilateral Total Knee Replacement in 2008, noe c/o pain along with discharge from left knee. Admitted for left revision TKR."
In the course in the hospital, it has been referred as under:-
"Patient admitted with above complaints. All relevant investigations were done. Managed surgically with left revision TKR done on 7.10.09.
Operative Findings-
Under CSEA (Combined Spinal+Epidural Anaesthesia) & T/C, Knee joint operated through parapatellar retinacular approach. Consumer Complaint No. 55 of 2012 17 Infected knee implant removed. Debridement done and antibiotic spacer inserted.
Gentamycin Cement CMW 40gm-2 packets VAncomycin-4 vials.
Wound closed in layers. ASD done.
Post operatively patient was managed with IVF, iv antibiotics (Linezolid, Sanocin, Tobramycin), Piankillers & other supportive therapy. She was transfused 3 units of PRC post operatively. Her would swap culture grew E.Coli. So Zanocin & Linezolid were stopped & started on Inj. Cilanem. Patient developed shivering and was slightly febrile on 14.4.10 morning. Medical consult under Dr. Vikas Bhutani consult was done for it. Added inj. Actamose. Her blood & urine cultures were found to be sterile. Patient was developed hyponatremia which was treated by oral salts. Right subclavian cannulation was done on 19.4.10. Patient is being discharged in stable condition with the following advise."
The complainant was taken up for revision TKR left knee stage two for which the complainant remained admitted from 23.12.2010 to 31.12.2010. Its discharge summary is Ex. Op-2/36 in which in the column of diagnosis, it has been mentioned as under:-
"Infected TKR left with Spacer in situ.
Unilateral Total Knee Replacement Left.
In the present illness, it has been referred as under:-
"66yr female presented with complaint of pain left knee x 8- 9mths.Consumer Complaint No. 55 of 2012 18
Difficulty in walking."
In the Course in the Hospital, it has been mentioned as under:-
"Patient admitted with above complaint. After preoperative work up she was taken up for Unilateral Total Knee Replacement Left side under Regional (CSEA) anesthesia. In post operative work up she was given Inj. Zosyn. Linox, Voveron, Tramadol, Fragmin, IVF and supportive therapy. She was transfused 2 unit PRC. Her urine culture grew-E-Coli. She is being discharged on following advice."
The complainant had a complaint in the right knee. On analysis it was found loosening of right TKR and the complainant was admitted for revision of right TKR from 3.11.2011 to 11.11.2011 but the complainant had no problem with regard to the right knee, therefore, the complaint of the complainant is basically retaining to left knee. It was effected due to infection specifically E-Coli. As a result of that revision for the left TKR was done. Therefore, there is nothing wrong in the procedure but left TKR infected due to infection in the body of the patient. The counsel for the Ops has placed on the record literature with regard to 'risk factors for infected total arthroplasty'. The purpose of the study is to analyse risk facts for the development of prosthetic infection after total joint arthroplasty in our group of patients, and to contribute to the understanding of conditions leading to infection and, consequently, to its eliminations. In the results, it has been found as under:-
"Results: The following factors were shown to be significant (the figure in brackets denotes the difference in frequency between Consumer Complaint No. 55 of 2012 19 the infected and the non-infected group): *Body mass index lower than 20 (6.5) or higher than 60 (5.1) *Diabetes mellitus on insulin therapy (5.3) * Chronic renal insufficiency in the patient's medical history (5.6) * Urinary tract infection in the patient's history (7.8) * Immunoligical deficiency in the patient's history (6.1) * Alcohol abuse (8.2) and serious psychiatric disease (5.1) in the patient's history * Surgery involving post-traumatic or traumatic tissues (6.3) * Presence of erysipelas (28.6) and varicose ulcer (8.8) on the leg operated on * Presence of osteomyeliis and articular infection in the region of implantation in each patient, accumulation of factors was assessed and it appeared that when any three (or more) factors investigated were found in a patient, the probability of prosthesis infection increased 16-times; when two (or more) significant factors were present, the probability of infection development was 14-times higher."
He has also placed on the record 'Late hematogenic infection of joint replacements and its prevention in surgery' in which purpose of the study and results have been mentioned:-
"The aim of the study is to assess a patient group with late hematgenic infections of allografts and to propose preventive measures.
Results:- Urinary infection or other procedures of urogenital tract were recorded in 37 patients (16.2%). Upper respiratory tract infections preceding deep joint implant infections were reported in 30 subjects (13.1%). Stomatological procedures or Consumer Complaint No. 55 of 2012 20 oral cavity disorders was diagnosed in 1 subjects (4.8%). Surgical procedures with suspected bacteraemia was recorded in 6 subjects (2.6%).
11. On the basis of this study in which it has been observed that infections of bone replacements are serious complication with imminent medical and economical consequences. The infections may be caused by a variety of conditions and medical procedures connected to bacteraemia. The risk of the joint implant infection is high. Therefore, in case the patient has got infection, it is because of the risk involved in the procedure and is known complication of the procedure. It does not mean that there is any wrong in installation of the implant. Against this evidence and medical literature, nothing contrary has been referred by the counsel for the complainant. In case artificial implant has been inserted in the knee joints, it will not work as a natural knee. The implant itself will have complications specifically in old age people, who are prone to infections. Therefore, we are of the opinion that in case a revision of TKR left knee was required, it happened due to infection specifically, E-Coli and revision has been done by Op No. 3 according to the recognized medical protocol. Counsel for the complainant has not been able to pin-point any difficulty in the procedure adopted by Op No. 3. No Doctor can stop the infection in the body, only its treatment could be given, which has been given as required under medical protocol. The counsel for the complainant has further referred to certificate Ex. C-18 issued by GMCH, Sector 32, Chandigarh, which shows that on 19.8.2013, fulminant infection (left leg) extending upto the lower thigh, above Consumer Complaint No. 55 of 2012 21 knee was amputated on 23.8.2013. This has to be done to save the life of the patient. No doubt that left leg of the complainant has been amputated in GMCH, Sector 32, Chandigarh on 23.8.2013 but the certificate does not show that it had to be amputated due to wrong procedure, if any, adopted by Op No. 3 at the time of joint replacement. However, the certificate itself shows that it had to be amputated due to infection to save the life of the patient, therefore, leg had to be amputated due to infection and not on account of any bad thing under the procedure for knee replacement. No expert report or any Doctor has been examined by the complainant to prove that infection or other problems happened due to any wrong procedure adopted by Op No. 3 at the time of knee replacement. The onus to prove that there is negligence on the part of Ops is basically upon the complainant but the complainant has not been able to prove this fact. On this point, we are supported from the judgment 2015(2) CLT 310 (NC) "Ram Gopal Yadav Vs. Pushkar Anand (Dr.) and others". In that case, it was held that initial burden to prove medical negligence lies on the complainant. Mere averments in the complaint are not evidence. Just a bald statement cannot be accepted. Further a reference has been taken from 2009 (4) CLT (SC) "C.P. Sreekumar (Dr) MS (Ortho) Vs. S. Ramunujam" and 2009(3) CLT 430 (SC) "Nizam Institute of Medical Science Vs. Prasanth S. Dhanaka & Ors."
and (2005) (3) CLT 358 (SC) "Jacob Mathew Vs. State of Punjab & Anr.". The view held in the above referred judgments has not been rebutted by the counsel for the complainant by citing any contrary judgment. No other point was raised. Therefore, we are of the opinion Consumer Complaint No. 55 of 2012 22 that the complainant has not been able to establish any medical negligence or deficiency in service in inserting the implant at the time of knee replacement or in post operative care.
12. Sequel to the above, we do not find any merit in the complaint and the same is hereby dismissed. No order as to costs.
13. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
14. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
February 09, 2017. (Surinder Pal Kaur)
as Member