National Consumer Disputes Redressal
Kamalnayan Bajaj Hospital & Anr. vs Jyoti Dhananjay Akude & Anr. on 14 June, 2021
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 890 OF 2013 (Against the Order dated 29/10/2012 in Appeal No. 583/2008 of the State Commission Maharashtra) 1. KAMALNAYAN BAJAJ HOSPITAL & ANR. GUT NO-43 SATTRA PARISAR BEED BY PASS ROAD, AURANGABAD MAHARASTRA ...........Petitioner(s) Versus 1. JYOTI DHANANJAY AKUDE & ANR. JYOTI SHANKARRAO HONCHATE SHAHPURI COLONY
AUSA ROAD,
LATUR TQ LATUR MAHARASTRA ...........Respondent(s) REVISION PETITION NO. 979 OF 2013 (Against the Order dated 29/10/2012 in Appeal No. 583/2008 of the State Commission Maharashtra) WITH
IA/18532/2017(Early Hearing) 1. JYOTI D/O DHANAJAY AKUDE ALIAS SOW.JYOTI,
W/O SHANKARRAO HANCHATE,
R/O SHAHUPURI COLONY,
AUSA ROAD,
LATUR MAHARASTRA ...........Petitioner(s) Versus 1. KAMALNAYAN BAJAJ HOSPITAL & 2 ORS. BL.NO-43 SATARA AREA,
BEED BYEPASS ROAD, AURANAGABAD MAHARASTRA 2. DR.SHIVKUMAR V SANTPURE, THROUGH KAMALNAYAN BAJAN HOSPITAL, AURANGABAD MAHARASTRA 3. DR MILIND CHOUDHARY, BEHIND BUS STAND, CIVIL LINES, AKOLA MAHARASTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER
For the Petitioner : For the Respondent :
Dated : 14 Jun 2021 ORDER
Appeared at the time of arguments
RP/890/2013
For the Petitioner
:
Mr. Vinayak Narayan Upadhye, Advocate
With Dr. Shivkumar Santpure
For the Respondent
:
Mr. Shirish K. Deshpande, Advocate
RP/979/2013
For the Petitioner
:
Mr. Shirish K. Deshpande, Advocate
For the Respondent
:
Mr. Vinayak Narayan Upadhye, Advocate
With Dr. Shivkumar Santpure
Pronounced on: 14th June 2021
ORDER
PER DR. S. M. KANTIKAR, MEMBER
1. This common Order shall decide both the Revision Petitions arising against the Order passed by the Maharashtra State Consumer Disputes Redressal Commission - Circuit Bench at Aurangabad (hereinafter referred to as the 'State Commission') in First Appeal No. 583/2008 wherein the Appeal was partly allowed and the Order passed by the District Consumer Disputes Redressal Forum, Aurangabad (hereinafter referred to as the 'District Forum') is set aside.
2. The brief facts are drawn from RP 979 of 2013. The Complainant Jyoti Dhananjay Akude (hereinafter referred to as the 'patient') was operated for her left leg deformity in her childhood at the age of about 1 ½ years by Dr. Iyer at Solapur. At the age of 14 years, she noticed that her left leg was shortened by 6 inches and she was treated by Dr. Milind Chaudhary (hereinafter referred to as the 'Opposite Party No. 3') at Akola for correction of her left leg. However, after the operation, she could not bend her left leg, unable to sit cross-legged. Then she approached Dr. Shivkumar Santpure (hereinafter referred to as the 'Opposite Party No. 2') at Aurangabad. It was alleged that he advised to remove the patella of left knee and to implant artificial steel patella, for that the Complainant did not agree. In November/December, 2002, the Complainant read an advertisement in the local newspaper given by the Opposite Party No. 2 and it was assured that with the help of the operation there will be 100% recovery from the disability of the Complainant. Therefore, she approached the Opposite Party No. 2 with her parents and accepted for the surgery; but refused for removal of patella from her left leg. However, the Opposite Party No. 2 assured that the patella will not be removed but only the overgrown bone will be removed and a small device would be installed between two bones of left leg. Therefore, the Complainant gave the consent and on 13.02.2003, the Opposite Party No. 2 performed the operation in Kamal Nayan Bajaj Hospital (hereinafter referred to as the 'Opposite Party No. 1'). After 15 days of hospitalization, she was discharged and called for monthly follow-up. The patient was unable to walk feeling painful and also unable to bend the leg inside. The Opposite Party No. 2 time and again gave painkillers for two years; however, there was no relief. Therefore, she approached Dr. Milind Joshi at Solapur who examined the patient on 07.03.2005 and informed that already her patella has been removed and the previous treatment and operation was defective.
The Complainant, being aggrieved instituted a complaint before the District Forum, Aurangabad seeking an award of compensation in the amount of Rs. 7.6 lakhs on the ground that she suffered permanent disability due to the negligent surgery performed by Dr. S. Satpute at the Kamalanayan Bajaj Hospital, Aurangabad.
3. The Opposite Parties Nos. 1 and 2 filed their written version and denied the negligence. They pleaded deficiency in service on the party of Dr. Milind Chaudhary. Therefore, he was impleaded as the Opposite Party No. 3. He remained absent and the matter was proceeded ex parte against the Opposite Party No. 3.
4. The District Forum by its judgment/order dated 27 April 2015 dismissed the Complaint.
5. Being aggrieved, the Complainant filed the First Appeal No.583/2018 before the State Commission. The State Commission put reliance upon the treatment record of S.P. Institute of Neuroscience at Solapur held medical negligence of the Opposite parties and partly allowed and ordered the Opposite parties to pay compensation of Rs. 1 lakh with Rs. 10,000/- as mental agony and Rs. 5,000/- as cost to the Complainant.
5. Being aggrieved by the Order of State Commission, the parties on both the sides filed Revision Petitions before this Commission. The Complainant filed Revision Petition No. 979 of 2013 for enhancement of compensation and the Opposite Party No. 1 filed Revision Petition No. 890 of 2013 to set aside the order of State Commission.
6. Assailing the decision of the State Commission, learned counsel from both the sides reiterated their evidence filed before the lower fora. The Opposite party No.2 /petitioner Dr. Santpure was also present during argument.
7. We have perused the entire material on record, interaila the patient's past history, the operative findings stated in the medical record of the Opposite Party No. 1 hospital.
8. It is apparent from the record that the Complainant (patient) was a known case of Congenital Hip Dislocation (CHD), her left hip joint was dislocated since her birth. At her age of 1 ½ years she was operated at Solapur by Dr. Iyer, but at the age 14 she noticed her left leg was short by 4 inches. Therefore, to increase the length of the leg of the parents took her to Dr. Milind Choudhary and she was operated twice by Ilizaro method (Russian method), however no improvement and her length of left leg she did not increase. Finally the patient's left leg and the knee joint became stiff. The knee bending was limited therefore Dr. Milind Choudhary under anesthesia and tried to bend the knee, but due to excessive bending attempts the patella got fractured in pieces. Dr. Milind Choudhary put the plaster on the left leg for 3 months which further damaged the left knee. Thus it is clear that it was the case of CHD and since birth the patient underwent 5 to 7 major procedures/ operations from different doctors.
8. On 09/12/2002 the Complainant at her age about 25 years approached in outdoor patient department (OPD) of the Opposite Party No. 1. The Opposite Party No. 2 examined her and the X-ray of the knee-left leg showed broken pieces of patella. The bending was only 5 to 10 degree only with unbearable pain in the left leg. After informed consent Opposite Party No. 2 performed the operation successfully and took out the broken pieces of the patella (knee bowl). After the operation the left knee was bending up to 100% and on 25/02/2003 the patient was discharged from the hospital. She came for follow-up on 10/03/2003, the stitches were removed The knee was bending 100% and the patient was advised some exercises and directed to come after one month. But, thereafter patient did not turn up to Opposite Party No -1 hospital.
9. We note the Opposite Party No. 2 recorded the detailed history; the relevant part is reproduced as below:
Jyoti Akude 39 12/2/03 History narrated by patient and parents C/o stiff (L) Knee Past History:
She was born with congenital dislocation of (L) hip joint. This was diagnosed immediately after birth & surgery was advised by the local orthopedic surgeon at that time which was denied by the family.
Surgery was performed on her left hip joint at the age of 3 years. Surgery of open Reduction & varus derotation osteotomy was done using plate & screws. Later on the plate and screws were removed.
At the age of 14 years it was noted that the leg was short by 4 to 5 inches. For which Limb legthening surgery was performed by Dr. Milind Chaudhary at Akola using ilizarov technique.
Above procedure took almost one year but resulted in severe stiffness of (L) knee joint.
To treat stiffness in her (L) knee Dr. Chaudhary did another surgical procedure known as a Quadriceps-plasty on her (L) knee, unfortunately which did not give her satisfactory result. Again Dr. Chaudhary tried to manipulate her (L) knee joint under anesthesia to give her some movement but unfortunately it broke her knee cap (patella bone) for which she was in plaster for 2 to 3 months. Plaster resulted in further knee stiffness (Age 15). After having several surgeries till the age of 15 years she presented to us at the age of 24 years with pain, stiffness and instability in her (L) knee joint.
On examination : Mild varus in (L) Lower Limb 5º Jog of movement Mild joint line tenderness Patella was not free and was immobile (emphasis supplied)
10. As per the standard text books on Orthopedics that when there is ankyloses of the knee joint there will be fusion of bony surfaces including the patella where it was fragmented. The movements were restricted. In the instant case the Opposite Party No. 2 operated the patient for release of the stiffness in the knee joint which was occurred 14 years back. That time Dr.Milind Choudhari put a above knee cast for 2 - 3 months; which enhanced the knee stiffness at the age of 15 years and during forcible bending of knee , it resulted into fracture of patella.
We note from the X-ray there was patellofibular bony fusion and therefore knee arthrolysis was performed by Opposite Party No.2 and removed the bony fragments of patella. In our considered view, the patella in total was not present. In the case of ankylosis, the accepted treatment was arthrolysis of knee in which the patellar fragments are removed. In our considered view, it was not medical negligence or deficiency in service from the 2. It is pertinent to note that the 2 referred the patient to Dr. K. H. Sancheti, Pune for the expert opinionwho also confirmed that there was no negligence in the treatment given by 2.
The main grouse of the Complainant is that the Opposite Party No. 2 removed Patella i.e. performed Patellectomy, though consent was not given.
13. Let us find it whether patella was present in the left knee joint when the patient approached Opposite Party No. 1 hospital and if yes then whether Opposite Party No. 2 performed patellectomy ?
From the Orthopaedic literature; the surgery for quadricepsplasty is totally different from that of patellectomy. Quadricepsplasty is the recommended procedure for release of severe extensor knee ankylosis. It is evident from the operative notes that to improve mobility of knee Opposite Party No. 2 performed Quadricepsplasty which is a corrective surgery on the quadriceps femoris muscle and tendon to release adhesions. We have perused the X-ray knee in which patella in toto is not visible. There was ankylosis of patellofemoral joint. The Opposite Party No. 2 performed arthrolysis and bony surfacing surgery after taking an informed consentThe bony fragments of patella were removed.
14. On careful perusal of medical history of the patient, it is pertienent to note that age of 14 years she noticed shortening of her left leg. She approached Dr. Milind Choudhary at Akola. He without ascertaining the causes of leg shortening performed ilizaro procedure for lengthening of leg. But, there was no improvement , it resulted knee stiffness, therefore he attempted quadricepsplasty but it was failure. Therefore to facilitate flexion of knee he again attempted procedure under anaesthesia which resulted fracture of patella. It is known that the Patellar fractures occur as a result of a direct blow to the knee and/or as a result of tension when the forces generated between the quadriceps tendon and patellar tendon overcome the strength of the bone. The possibility of fall or trauma to left knee sustained by the patient cannot be ruled out which may lead to fracture of patella. The X-ray clearly revealed fusion of bones and ankylosis and separately the patella was not visible. The allegation of the complainant about removal of patella is not sustainable.
15. The State Commission has placed a considerable degree of reliance on the fact that the Opposite Party No. 2 failed to obtain consent of Complainant/Petitioner to remove her patella or broken pieces of patella. The consent for surgery was taken and operating doctor has already explained about the procedure thus separate consent was indeed not necessary. The State Commission erroneously relied upon the prescription of Dr. Milind Joshi and MRI report of S. P. Institute of Neurosciences, Solapur that patella was removed by the Opposite Party No. 2.
16. We would like to rely upon the decision in the case Achutrao Harbhau Khodwa Vs. State of Maharashtra 1996 Vol 2 643, the Hon'ble Supreme Court has held as below:
"The skill of medical practitioner differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and a court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
17. In the instant case the Opposite Party No. 2 acted as per the reasonable standards. The patient was known case of congenital hip dislocation. She underwent multiple corrective surgeries by different doctors and by different methods. At the age of 14 years Dr. Milind Choudhary failed to diagnose the cause of shortening of left leg, but treated the patient by Ilizarov method. The insertion of wires and pins lead to muscle damage and stiffness. The record speaks about procedures under anethesia performed by Dr. Chodhary and put a plaster to knee joint which further aggravated the stiffness. The stiffness was continued till her age of 25 years when she approached Opposite Party No. 1 hospital. The clinical and operative notes it is evident that the patella was fragmented and fused. The mode of treatment adopted by the Opposite Party No. 2 is as per the reasonable standard of practice.
18. For the above reasons, the Order of the State Commission is unsustainable and same is set aside. We do not find any basis or justification to conclusively determine medical negligence against the Opposite Party No. 2. The Revision Petition No. 890/2013 is allowed and the Revision Petition No. 979/2013 is dismissed; consequently the Complaint is dismissed.
19. However, at present the Complainant is young lady who since birth suffered Congenital Hip Dislocation and throughout her she has remain under treatment and with physical disability. Though there was no medical negligence of the treating doctor or hospital; in our viewconsidering the peculiar facts and specificities and the physical condition of patientletthe Kamalanayan Bajaj Hospital, a Charitable institute be considerate and pay the Complainant as an ex-gratia the amount which wasdeposited before this Commission vide order dated 13 August 2013.
In any manner this shall not be taken in future as a precedent.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER