State Consumer Disputes Redressal Commission
Amarender Prakash Dewedi vs Indraprastha Apollo Hospital & Anr. on 5 December, 2023
CC/589/2013 D.O.D: 05.12.2023
MR. AMARENDRA PRAKASH DEWEDI VS. INDRAPRASTHA APOLLO HOSPITAL & ANR.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 30.10.2013
Date of hearing: 01.05.2023
Date of Decision: 05.12.2023
COMPLAINT CASE NO.- 589/2013
IN THE MATTER OF
MR. AMARENDRA PRAKASH DEWEDI,
S/o LATE SHRI SWAMINATH DUBEY,
R/o SHASTRI NAGAR, DWIVEDI COLONY,
SIWAN (BIHAR).
(Through: Mr. Madhukar Pandey, Mr. Anirudh
Mishra and U.K. Singh, Advocate)
...Complainant
VERSUS
1. INDRAPRASTHA APOLLO HOSPITAL,
SARITA VIHAR, DELHI-MATHURA ROAD,
NEW DELHI-110076.
(Through: Mr. Lalit Bhasin, Advocate)
2. DR. RAJU VAISHYA,
CONSULTANT ORTHOPAEDICS,
INDRAPRASTHA APOLLO HOSPITAL,
SARITA VIHAR, DELHI-MATHURA ROAD,
NEW DELHI-110076.
(Through: Mr. K.G. Sharma, Advocate)
3. UNITED INDIA INSURANCE CO. LTD.,
54, JANPATH, CONNAUGHT PLACE,
NEW DELHI.
(Through: Mr. Maibam N. Singh, Advocate)
...Opposite Parties
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CC/589/2013 D.O.D: 05.12.2023
MR. AMARENDRA PRAKASH DEWEDI VS. INDRAPRASTHA APOLLO HOSPITAL & ANR.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the Complainant.
None for the OP No. 1 & 2.
Mr. Maibam N. Singh, counsel for the OP No. 3.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed by Mr. Amarendra Prakash Dewedi (Complainant) alleging deficiency in service and medical negligence on the part of the Opposite Party no. 1 & 2 with respect to the surgery of the right knee done by the Opposite Party no. 2.
2. Brief facts necessary for the adjudication of the present complaint are that the Complainant sustained road traffic accident injury in his right knee on 09.11.2011 for which he was brought to Tara Hospital & Medical Research Centre, Patna, Bihar and was admitted on 10.11.2011, where after investigations such as CT Scan, X-ray etc., the treating doctor found the fracture of Tibia spine (right leg) alongwith smith fracture (right wrist) was made and the Complainant (patient) was operated upon his right forearm by Dr. R. N. Singh (M.S.-Orthopaedics) and cast was put on his right leg and the Complainant was discharged on 14.11.2011. Thereafter, the Complainant was under the care and treatment of Dr. Satish Kumar Tiwari (M.S-Orthopaedics) at Siwan from 16.11.2011 to 10.12.2011.
3. However, despite the treatment and rest, the Complainant was experiencing serious pain in right knee and right wrist and had difficulty in walking properly. Under these circumstances, on 14.12.2011 approached the Orthopaedic and Joint Replacement Department of the Opposite Party No. 1 Hospital for proper diagnosis and treatment.
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4. The Complainant (patient) on deposit of charges, was directed to Dr. Raju Vaishya (hereinafter referred as Opposite Party No. 2) who did initial examination of the Complainant on 14.12.2011 and advised MRI of right knee of the Complainant and also the X- ray of right wrist. Pursuant to the advice of the Opposite Party No. 2, MRI test of the Complainant's right knee was conducted on 15.12.2011 at DCA imaging & Research Centre at the cost of Rs. 6,600/- and which gave its clinical report and after seeing the said MRI Report and X-ray report provided by DCA imaging & Research Centre, the diagnosis of Posterior Cruciate Ligament (PCL) Tear with LCL tear of the right knee and malunited fracture distal radius upon the right wrist was examined by the Opposite Party No. 2 and the Complainant was told by the Opposite Party No. 2 that he required to undergo Arthroscopic PCL Reconstruction of right knee, which is a minor surgery and plastering of wrist. The Complainant was advised by the Opposite Party No. 2 to get admitted at the Opposite Party No. 1 Hospital and further assured the Complainant that he will be fine within a week and will be able to walk properly without any pain or discomfort as he had expertise in such surgery.
5. Further, the Complainant got admitted at the Opposite Party No. 1 Hospital on 18.12.2011 and was asked to deposit Rs. 1 lakh at the time of admission, which was duly deposited by the Complainant. Post admission on 18.12.2011, pre anaesthetic checks was done and the patient was informed that he is fit for the surgery. On 19.12.2011 a surgery was conducted on Complainant for his right knee and after that the right hand of Complainant was also put under cast. The discharge summary dated 21.12.2011, reflects that the Complainant underwent the procedure of PCL reconstruction with posterolateral complex repair along with open reduction and internal fixation with K- wires percutaneously under General Anesthesia by the Opposite Party No. 2 and the Complainant discharged on 21.12.2011.
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Before getting the Discharge, the Complainant was made to pay Rs. 69,033/- as the remaining billed amount to the Opposite Party No. 1 Hospital. Further, as per the direction, the Complainant visited the Opposite Party No. 1 Hospital on 27.12.2011 for removal of staples and was having pain, which he informed the Opposite Party No. 2, who advised him to take Tablet named as Lorsaid (an analgesic, anti-inflammatory tablet) and other medicines and was assured by the Opposite Party No. 2 that he will be better soon.
6. However, since the Complainant was still having no relief, he visited the Opposite Party No. 2 on 03.01.2012 and then on 07.01.2012 when he was advised by one of the doctors at Opposite Party No. 1 Hospital to undergo physiotherapy of right knee and the Complainant referred to the physiotherapist. Further, the Complainant continued the physiotherapy for right knee but as the Complainant continued to have pain in his right knee and difficulty in walking, he visited the Opposite Party No. 2 on 23.01.2012, when he was advised by the Opposite Party No. 2 to undergo X-Ray right Knee (AP & Lateral). On seeing the X-Ray of the right knee, the Opposite Party No. 2 said that the Complainant is having pain in his right knee due to reduced space in the knee joint, which will improve with physiotherapy.
7. On 20.02.2012, when he was advised again by the Opposite Party No. 2 to undergo X-Ray right Knee (AP & Lateral). On seeing the X-Ray of the right knee, the Opposite Party No. 2 said that the Complainant is having pain in his right knee due to osteoarthritis, which will improve with physiotherapy. However, the Complainant's suspicion grew due to the demeanours of the Opposite Party No. 2 as it appeared that somehow, he wanted to get rid of the Complainant, so the Complainant decided to consult Dr. Yash Gulati at the Opposite Party No. 2 Hospital on 16.05.2012. After seeing the X-RAYS and examining the right knee of the Complainant, the ALLOWED PAGE 4 OF 15 CC/589/2013 D.O.D: 05.12.2023 MR. AMARENDRA PRAKASH DEWEDI VS. INDRAPRASTHA APOLLO HOSPITAL & ANR.
said Dr. Yash Gulati told the Complainant that the earlier PCL reconstruction surgery in December 2011 was not done properly and had not been successful and hence the Complainant is continuously having pain in his right knee and had difficulty in walking. Further, Dr. Yash Gulati advised to do Re-Surgery for PCL Reconstruction.
8. Thereafter, the Complainant met the Opposite Party No. 2 on 27.09.2012 at the Opposite Party No. 1 Hospital and told him that he is continuously having pain in his right knee as also restricted movement in his right wrist and had difficulty in walking upon which the Opposite Party No. 2 advised Total Knee Replacement (TKR) of Right Knee alongwith Darrach's procedure in his right wrist. Thereafter the Complainant told him about the opinion of Dr. Yash Gulati, to which the O.P. No. 2 could not utter even a word and promised to do the TKR at a reduced rate and said that as it was his fault, therefore, he will not charge his fees for the TKR surgery.
9. However, the Complainant was not satisfied with the examination of the Opposite Party No. 2, therefore, the Complainant was taken to Mumbai, where he was examined by reputed sports injury Orthopaedician namely Dr. Anant Joshi on 05.08.2013, who after clinically examining the Complainant and perusing the films of MRI, X-rays and medical papers, informed the Complainant that the earlier PCL reconstruction surgery in December 2011 was not done properly by the Opposite Party No. 2 and had not been successful and hence the Complainant is continuously having pain in his right knee and had difficulty in walking. He advised the Complainant to undergo the procedure of Upper tibia corrective osteotomy-medial open wedge with slope correction.
10. The Complainant decided to take further opinion from Dr. Nirad S. Vegsarkar (another reputed Orthopaedics at Mumbai), who after clinically examining the Complainant on 06.08.2013 and perusing the films of MRI, X-rays and medical papers informed the Complainant that the earlier PCL ALLOWED PAGE 5 OF 15 CC/589/2013 D.O.D: 05.12.2023 MR. AMARENDRA PRAKASH DEWEDI VS. INDRAPRASTHA APOLLO HOSPITAL & ANR.
reconstruction surgery in December 2011 was not done properly by the Opposite Party No. 2 and had not been successful and hence the Complainant is continuously having pain in his right knee and had difficulty in walking.
11. Thereafter, the Complainant came to Delhi and was examined on 23.08.2013 by Dr. Ankit Goyal at Sports Injury Centre (Arthroscopy & Joint Disorder) at Safdarjung Hospital who after clinically examining the Complainant and perusing the films of MRI, X-rays and medical papers informed the Complainant that the earlier PCL reconstruction surgery in December 2011 was not done properly by the Opposite Party No. 2.
12. The Complainant has alleged that there was utter negligence on the part of the Opposite Party no. 1 & 2, who failed to give proper treatment to the Complainant which only exaggerated the suffering of the Complainant and also made him suffer, in order to make some monetary gain and has already incurred total expenditure of Rs. 3,85,000/- for treatment and travels. With this, the Complainant has filed the present complaint stating that the Opposite Party no. 1 & 2 are liable for Negligence, for which the Complainant needs to be compensated, wherein, the following reliefs have been prayed:
a) "Pass an Order/Judgment allowing the present Complaint in favour of the Complainant and against the O.P.No.1 & 2.
b) Pass an Order/Judgment directing the Opposite Parties, jointly and severally, to pay to the Complainant, the amount as described in Para No.10 (i to vii) of this complaint within 30 days of the receipt of the Pass an Order/judgment passed by this Hon'ble Commission.
i. Rs. 3,10,000/- approx (Rupees two lakh and fifty Thousand only) i.e. the amount spent by the Complainant for the treatment, medicines and diagnostics and Rs.
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75,000/- towards the travelling/lodging/boarding expenses;
ii. Rs. 10,00,000/- as compensation for the harassment, inconvenience, frustration, harassment and mental agony suffered by the Complainant, iii. Rs. 20,00,000/- towards business loss (during January 2012 to October, 2013);
iv. Any other amount that remains to be spent by the Complainant in the further treatment/in correcting the damages/deformities/handicap due to negligence of the O.P. No. 2;
v. Rs.2,00,000/- towards cost of legal and miscellaneous expenses;
vi. Interest at the rate of 18% per annum from the date of filing of this Complaint till the realisation of the compensation/awarded amount:
vii. Any other relief/compensation as deemed fit and proper in the interest of justice.
c) Any other relief deemed fit in the circumstances of the case may kindly be also granted."
13. Notice was issued to the Opposite Parties and separate written statement was duly filed by the Opposite Parties wherein, the Opposite Party no. 1 contested the present case and submitted that the Complainant has no cause of action against the Opposite Party no. 1 as due care, proper medical attention and an appropriate line of treatment was provided to the patient with respect to his medical condition. The Opposite Party no.1 further submitted that despite all standard care and precaution taken by the Opposite Party no. 1, if the patient or his family still suffer or not satisfied with the treatment, it cannot per se be called as negligence or deficiency in services. Pressing the aforesaid submissions, the Opposite Party no. 1 submitted that there was no medical negligence or deficiency of service on the part of Opposite Party no. 1 Hospital.
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14. The Opposite Party no. 2 has also filed the written statement wherein, he submitted that the Complainant has failed to establish any negligence/ deficiency of service on his part and he had performed his duties to the best of his ability and judgment. The Opposite Party no. 2 further submitted that the surgery of the Posterior Ligament Tear (PCL) Reconstruction was done successfully and due to the severe osteochondral injury to the Medial Femoral Condyle of the right knee continued to give him pain despite of all the possible medical treatment, hence he was offered Total Knee Replacement (TKR) Surgery, for which, the Complainant did not agree and went take multiple opinions elsewhere.
15. Lastly, the Opposite Party No. 2 submitted that the Complainant took multiple opinions but no doctor has pointed out any deficiency or negligence in the 1st Surgery conducted by Opposite Party no. 2. Relying on the aforesaid factual matrix, the Opposite Party no. 2 has prayed that the Complaint be dismissed with cost, since there is nothing on record to prove that the Opposite Party no. 2 is liable for Medical Negligence.
16. Further, during the course of proceedings, the Opposite Party no. 2 has moved an application to implead Insurance Company as Opposite Party no. 3 to the present Complaint. The said application was allowed vide order dated 05.12.2014 and the Complainant was directed to file amended memo of parties which was taken on record by this Commission and the Opposite Party no. 3 namely United India Insurance Co. Ltd. has filed the written statement to the present Complaint. Additionally, the written submissions have also been filed by the Opposite Party no. 3 wherein, it submitted that the Opposite Party no. 2 opted for the Reimbursement Policy and therefore, in the event that a deficiency is proven against Opposite Party No. 2, the Insurance Company will only be responsible for paying him back after he has paid the claimant.
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17. The Complainant has filed his Rejoinder rebutting the separate Written Statements filed by the Opposite Parties. All the parties filed their Evidence by way of Affidavit in order to prove their averments on record. The Written Arguments of all the contesting parties are also on record.
18. After the completion of the pleadings, the case was listed for final Arguments on 01.05.2023. We have heard the Counsel for the Opposite Party no. 3 and perused through the entire material available on record including the Written Arguments filed by the contesting parties.
19. Before delving into the merits of the case, we deem it appropriate to refer to the law on the cause. This Commission, has in detail, discussed the scope and extent of Negligence with respect to Medical Professionals in CC- 324/2013, titled Seema Garg & Anr. vs. Superintendent, Ram Manohar Lohia Hospital & Anr. decided on 31.01.2022, wherein one of us (Justice Sangita Dhingra Sehgal, President) was a member. The relevant portion has been reproduced as below:
"9......The Hon'ble Apex Court, after taking into consideration its previous decisions on Medical Negligence, has consolidated the law in Kusum Sharma and Ors. vs. Batra Hospital and Medical Research Centre and Ors. reported at (2010) 3 SCC 480, wherein, it has been held as under:
"94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view: I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
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II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. 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.
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VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind."
10. In cases wherein the allegations are levelled against the Medical Professionals, negligence is an essential ingredient for the offence, which is basically the breach of a duty exercised by omission to do something which a ALLOWED PAGE 11 OF 15 CC/589/2013 D.O.D: 05.12.2023 MR. AMARENDRA PRAKASH DEWEDI VS. INDRAPRASTHA APOLLO HOSPITAL & ANR.
reasonable man would do or would abstain from doing. However, negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence and they are entitled to protection so long as they follow the same."
(emphasis supplied)
20. In the present case also, it will be had to be ascertained whether there was any lack of skill and competence on the part of the operating doctor and/or any omission to do what was actually required in the present facts and circumstances.
21. The Complainant has not challenged the competency of the operating doctor i.e. Opposite Party No. 2, hence, the first part of the aforesaid para stands answered, that there was no lack of competence on the part of the Opposite Party No. 2.
22. So far as the question of omission to do any act which was actually required is concerned, the Complainant has contended that the Opposite Parties committed negligence while operating upon him due to which the Complainant was not relieved from the knee pain till date.
23. Therefore, in order to check whether there was any deficiency on the part of treating doctor, we have carefully perused the medical records filed by the Complainant and found that the Opposite Party no. 2 after examining the MRI and X-ray of the right knee and wrist, found that the Posterior cruciate Ligament (PCL) as well as Lateral Collateral Ligament (LCL) of the right knee got teared and there was malunited fracture on the distal radius in the right wrist of the Complainant. Therefore, the cast was applied upon the right wrist and the Complainant was advised for the Arthroscopic PCL Reconstruction surgery of the right knee which was conducted by the Opposite Party no. 2 on 19.12.2011 and the Discharge summary issued by the Opposite Party no. 1 Hospital reflects that the Complainant underwent through the PCL reconstruction surgery procedure with posterolateral ALLOWED PAGE 12 OF 15 CC/589/2013 D.O.D: 05.12.2023 MR. AMARENDRA PRAKASH DEWEDI VS. INDRAPRASTHA APOLLO HOSPITAL & ANR.
complex repair along with open reduction and internal fixation with K- wires percutaneously. Further, the Complainant took follow ups during post surgery period i.e. on 27.12.2011, 03.01.2012, 07.01.2012, 23.01.2012 and 30.02.2012 but on each and every visit, the Opposite Party no. 2 advised the Complainant to opt for physiotherapy but as the Complainant having persistent pain in the right knee and has difficulty in walking, he went for the consultation/advice from the other doctors namely Dr. Yash Gulati at Opposite Party no. 1 Hospital who after proper examination advised for the re-surgery of right Knee for PCL Reconstruction. The diagnosis and advisory slip issued by Dr. Yash Gulati has been reproduced below for the ready reference herein:
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24. Further, we find that the Complainant had opted for the advice/consultation from 'Sportsmed' Hospital in Mumbai, where Dr. Anant Joshi after examining the Complainant has diagnosed the following:
"The Right PCL + PCL insufficiency with varus& PF & medial compartment arthrosis."
and advised for the following:
"Upper tibial corrective osteotomy - medial open wedge with slope correction."
25. Therefore, from the above observations made by the consulting doctors, namely Dr. Yash Gulati and Dr. Anant Joshi, it is clear that in the instant case, the Opposite Party no. 2 negligently conducted the PCL reconstruction surgery, as a result of which both the consulting doctors have concluded that the PCL surgery of right knee of the Complainant (patient) needs to be re-done. Furthermore, during the post-operative period, the Opposite Party no. 2 neglected to discover that the operation was unsuccessful and urged the Complainant to seek physiotherapy. However, a review of the record reveals that the PCL surgery was not effective/successful, and Dr. Anant Joshi additionally advised for the corrective surgery of the upper tibial bone by medial open wedge with slope correction.
26. Keeping in view of the above situation, we find sheer negligence on part of the Opposite Party no. 2 as the patient (Complainant) was not treated with due care and caution by the Opposite Party no. 2 and the treatment was not done in accordance with the medical practice followed by the doctors while treating the patient of similar condition and age due to which the Posterior Cruciate Ligament (PCL) surgery was negligently conducted by the Opposite Party no. 2.
27. Therefore, from the above discussion, we hold that the Opposite Party no.2 is negligent in providing its services to the Complainant and keeping in ALLOWED PAGE 14 OF 15 CC/589/2013 D.O.D: 05.12.2023 MR. AMARENDRA PRAKASH DEWEDI VS. INDRAPRASTHA APOLLO HOSPITAL & ANR.
view the principles detailed above and the facts and circumstances of the case, the age of the patient, and other necessary & essential factors, we are of the considered view that it would be just and reasonable to award compensation of Rs. 5,00,000/- (including the cost of treatment spent for the said treatment) to the Complainant for the suffering, mental pain and agony caused.
28. The amount so awarded in the para no. 27 be paid by the Opposite Party no. 2 being liable, within a period of three months from the date of present judgment i.e. on or before 05.03.2024, failing which, the Opposite Party no. 2 would be liable to pay the said amount along with the interest @ 9% p.a. from 20.12.2011 (being the date on which the surgery was conducted by the Opposite Party no. 2) till the actual realization of said amount.
29. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
30. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
31. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
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