State Consumer Disputes Redressal Commission
Prabhkar Sopanrao Sonwane vs Kamalnayan Bajaj Hospital on 16 March, 2023
1 CC/27/2017
Date of filing :23.06.2017
Date of order :16.03.2023
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, BENCH AT AURANGABAD.
COMPLAINT CASE NO.: 27 OF 2017
Prabhakar s/o Sopanrao Sonawane,
R/o N-8,Cidco, Aurangabad. Complainant
VERSUS
1. Kamalnayan Bajaj Hospital,
Having its Managing Director /Chairman,
Gut No.43, Satara Parisar, Bajaj Marg,
Beed bypass road, Aurangabad.
2. Dr.Punit S.Malpani (Orthopedic & Joint Replacement Surgeon)
MMRI, Kamalnayan Bajaj Hospital,
Gut No.43, Satara Parisar, Bajaj Marg,
Beed bypass road, Aurangabad.
3. MIT Hospital & Research Institute,
Having its Managing Director / Trustee
144, N-4, Kamgar Chowk, Cidco, Aurangabad.
4. The Manager,
New India Assurance Company Ltd,.
Divisional Office1 , Ajay Engineering works compound,
Adalat road, Aurangabad. Opponent no.1to4.
CORAM :Smt.S.T.Barne, Hon'ble Judicial Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv.D.N.Kadade for complainant.
Adv.Dinesh L.Vakil,Gangapurkar for opponent no.1&2
Adv.S.P.Katneshwarkar for respondent no.3.
Adv.M.R.Deshmukh for opponent no.4.
JUDGMENT
(Delivered on 16/03/2023) Per Smt.S.T.Barne, Hon'ble Presiding Judicial Member.
1. The complainant Prabhakar Sopanrao Sonawane, resident of N-8, Cidco, Aurangabad has filed this complaint under Sec.12 of Consumer 2 CC/27/2017 Protection Act,1986, alleging medical negligence and deficiency in service on the part of opponents. The opponent no.1 is the Kamalnayan Bajaj Hospital. The opponent no.2 is Dr.Punit S.Malpani, Orthopaedic and joint replacement surgeon, attached to Kamalnayan Bajaj Hospital, Aurangabad. The opponent no.3 is MIT Hospital and Research Institute. The opponent no.4 is New India Assurance Company Ltd,. who is added subsequently on receiving written notes of argument on behalf of opponent no.3.
2. It is the case of complainant that on 07.09.2016 he approached to opponent no.1 as he was suffering from pain in right hip and difficulties in walking. He is examined by opponent no.2 Dr.Malpani who advised the complainant for his suffering from RIGHT OSTEOARTHIRITIS of hip and he is in need total hip replacement surgery and he was advised to admit in the hospital. Accordingly on 07.09.2016 he was referred to billing faculty of opponent no.1 and admitted in the said hospital as per advise of opponent no.2 in semi private room of said hospital. The opponent no.2 told him that the operation will be done successfully and his hip pain and difficulty in walking will be cured after surgery on right hip. The complainant was admitted in the hospital of opponent no.1 under treatment of opponent no.2 for the period of 07.09.2016 till 12.09.2016. After his discharge on 12.09.2016 the opponent no.2 was called for follow up on 22.09.2016. Accordingly the complainant approached to opponent no.2 on 22.09.2016, at that time complainant disclosed the opponent no.2 that he is suffering from major pain in right hip and right leg and there was swelling on the right leg. The opponent no.2 again called him on 27.09.2016. On 27.09.2019 the complainant was suffering from abdominal pain and omitting. The opponent gave him some pain killer medicines. It is alleged that though opponent no.2 has performed the right hip replacement surgery, the complainant is suffering continuously pain in right hip and right leg and not able to walk. It is further contention of complainant, as he is residing at Cidco and the opponent no.2 is also working at MIT hospital and research institute situated at N-4, Cidco, Aurangabad as Orthopaedic Surgeon, he 3 CC/27/2017 advised the complainant to come in the hospital of opponent no.3 for follow up. Therefore, as per advise of opponent no.2 he went to the hospital of opponent no.3 . The opponent no.2 from there, referred the complainant to Dr.Anand Soni (MD(Med) DM Neuro (Mumbai)) who was attached to opponent no.3 hospital as Neurologist. Dr.Soni examined the complainant on his right hip and also carried his NCV test on 03.10.2016. Dr. Soni, prescribed medicine and some treatment to complainant. Dr.Soni disclosed the complainant that he was suffering from pain in right hip and right leg, because during his hip replacement surgery, his nerve of right leg was cut and he was unable to walk and he would suffer pain continuously throughout the life . But he refused to give it in writing. It is the contention of complainant that the opponent no 3 hospital has purchased professional indemnity insurance policy from New India Assurance Company Ltd, bearing policy no. 16040036160200000194 on 13.08.2016 for the period of 02.09.2016 to 01.09.2017. Therefore, opponents are liable to pay compensation jointly and severally.
3. It is the contention of complainant that he had been to other orthopaedics and they also told him that while conducting the surgery of his right hip replacement, nerve of right leg was cut. Therefore, complainant was suffering from pain and unable to walk. However, they have not issued certificate to him to that effect on his demand. It is the contention of complainant that he paid medical bills of opponents and also paid fees of opponent no.1. However, they have not provided proper service and treatment to him .Due to negligence and carelessness of opponent no.2 his nerve of right leg was cut during surgery of right hip replacement and he is unable to walk and suffering from continuous pain. He is required to take pain killer daily. He is deprived of enjoying his life. His future is difficult and he is depend on other for daily activities as he is required to take pain killer for lifetime. It may cause effect to his kidney also. According to him, it happened due to negligence and carelessness of opponent no.2. Therefore, he has claimed amount of bill paid to opponent no.1&2 of Rs. 1,45,280/- and near about 4 CC/27/2017 Rs. 51,000/- spent towards bill of other doctors including Dr.Soni and bill of opponent no.3. Therefore, he has claimed said amount of expenses incurred Rs. 1,96,180/- with interest @ 12 % p.a., Rs. 18 Lakh towards compensation and Rs. 2 Lakh towards mental agony and cost of proceeding.
4. The opponent no.1&2 appeared and filed their written version which is at page no.111 to 116 and denied all adverse contentions in the complaint. It is the contention of opponent that, complaint is false and frivolous. The complainant has not made out case out of defective service or medical negligence or unfair trade practice under provision of Consumer Protection Act,1986. It is the contention of opponents that complainant suffered from bilateral evascular neurosis of femoral head, diagnosed elsewhere about 9 years back out of which his left side total hip replacement surgery was done around 8 years back elsewhere. He visited opponent no.1 hospital and consulted opponent no.2 in OPD for complaint of pain in right hip joint since last 9 years, which has aggravated since last 5 years with difficulties in walking and climbing. On examination it is found that right hip of complainant was become stiff with restricted range of movement like flexion of 0-30 degrees internal and external rotation severally restricted and painful and abdication of 0- 10 degree each and painful with shortening of around 1.5 cms as compared to left lower limb. After getting X-ray and examining them, he diagnosed of severe osteoarthritis of right hip, for which right total hip replacement surgery was advised.
5. It is further contention of opponent no.1&2 that on admission of complainant all routine lab, ECG, 2 D-Echo and cardiologist reference for surgery was done. At the time of admission on 07.09.2016 in view of age of complainant previous cardiac arrest as well as severe osteoarthritis of right hip with stiffness and shortening, complainant was counselled and informed about pros and cons of total hip replacement surgery and possibility of need of ICU, post operatively need of blood transmission for bleeding, possibility of nerve injury, limb length discrepancy post 5 CC/27/2017 operatively, fingling or numbness or neuro deficit in operated lower limb, dislocation hip joint on doing flexion, adduction and internal rotation of operated hip or squatting position, need of walker and ambulation etc. After giving understanding about the same to the relatives and patient, their consent was obtained for carrying surgery. It is the contention of these opponents that the opponent number 2 was assisted by other doctors of opponent number one and total hip replacement surgery was carried.
6. As anticipated at pre-operative clinical status and x-ray of patient his all tissues like external rotators and joint capsule around right hip found contracted and fibrotic. Hip joint dislocation was also difficult due to adhered fibrotic tissue osteophytes around joint due to delayed presentation of severe hip arthritis. Regular procedure of total heap replacement, taking out funeral head followed by preparation of acetabulum and then femoral done and postthesis put in and leg length achieved as compared to lower limb.
7. It is further contention of opponent no.1&2 that the complainant further approached to medical board of Govt. Medical College, alleging medical negligence on the part of opponent no.2 while performing hip replacement surgery. The Medical Board collected treatment papers, operation notes, interrogated and recorded statement of opponent no.2 and it is learnt by opponent no.2 that the experts have given opinion that there was no medical negligence on the part of opponents in the treatment, the consent of complainant and relatives was obtained prior to surgery to the complication which may arise due to surgery.
8. It is the contention of opponents that, on post operation day one , the patient was hemodynamically stable. On operated side toe movements were flicker with slight numbness in foot. Considering it to be neuropriaxia or neuritis, secondary to possibly of stretching of contracted sciatic nerve along with other contracted tissues while getting limb length equalization intra as compared to other lower limb, oral 6 CC/27/2017 steroid formulation started. Physiotherapy of right foot along with the operated right hip advised. Patient was discharged on post operated day 3rd with oral steroids and other medication and physiotherapy advised for right foot and operated right hip. At the time of one month follow up looking at minimal improvement in secondary as well as motor symptoms of patient, nuorologist opinion was taken, NCS done on 03.10.2016 as per standard and methods. It is the contention of this opponents that they are dragged to the court without any fault on their part. Hence, they have prayed for dismissal of complaint with compensation of Rs. 1 Lakh.
9. It is the contention of opponent no.3 that, opponent no.3 is MIT Hospital and Research centre Institute. According to this opponent complainant was operated by opponent no.2 on 08.09.2016 in opponent no.1 Hospital. Thereafter, he approached to opponent no.3 hospital on 03.10.2016 for follow up and check up as outdoor patient. He was checked up by Dr.Soni who was working as Neurologist and he carried NCV test. All other contentions regarding Dr.Soni are denied. As the complainant was not operated by opponent no.2&3 in their hospital there is no question of negligence on their part. The opponent no.3 provided proper service to complainant on his visit on OPD basis. The complainant only paid Rs.2250/- to opponent no.3 hospital towards consultation charges and charges of NCV test. Therefore, demand of compensation of complainant is baseless.
10. It is the contention of opponent no.3 that there is no cause of action against the opponent no.3. However, the opponent no.3 hospital has purchased professional indemnity policy from New India Assurance Company Ltd,. with policy number 16040036160200000194 for the period of 02.09.2016 to 01.09.2017 covering the disputed period. Hence, the complainant be directed to add New Assurance Company Ltd,. as a necessary party.
7 CC/27/2017
11. It is the contention of opponent no.4 Insurance Company that opponent no.3 has obtained professional Indemnity insurance policy from them. The policy is issued in favour of MIT Hospital and not in favour of any particular doctor. The complainant has not taken any treatment from opponent no.3. He was operated in Kamalnayan Bajaj Hospital and entire pre operative treatment and surgery is performed in Kamalnayan Bajaj Hospital. On this count itself the complaint is deserves to be dismissed as against the opponent no.4.
12. Heard complainant in person and Advocates for opponent no.1to4 finally. According to complainant he was suffering from right osteoarthritis of hip. He approached to opponent no.1 hospital. Opponent no.2 is attached to opponent no.1 hospital as orthopaedic surgeon. He examined the complainant and advised him to go for total right hip replacement and assured him that he would be relieved from pain and problem of walking, after said surgery. Accordingly he was admitted to opponent no.1 hospital on 07.09.2016 under treatment of opponent no.2 Dr.Malpani. His surgery conducted on 08.09.2016 and he is discharged on 12.09.2016. He has demanded the medical bill of Rs.1,45,281+1600 in the hospital of opponent no.1. He was admitted under treatment of opponent. Hence, he is consumer of opponent no.1&2. Thereafter, as per advise of opponent no.2 he visited hospital of opponent no.3 for follow up and NCV test advised by opponent no.2. In the hospital of opponent no.3, Dr.Soni examined him, on OPD basis, he has also produced on record the documents and bills regarding payment made to the opponent no.3 towards treatment on OPD basis. Hence, complainant is consumer of opponent no.1to3.
13. The opponent no.4 is the insurance company from whom the opponent no.3 has obtained professional policy. Hence, opponent no.4 made party on filing written version by opponent number 3.
14. According to complainant, the opponent no.2 has not provided proper service to complainant during treatment and also shown 8 CC/27/2017 negligence during surgery and inspite of total hip replacement of right hip, he would not get relief from -pains and difficulties while walking.
15. The opponent no.2 referred him to Dr.Soni for NCV test,who attached to opponent no.2 hospital . During NCV test Dr.Soni informed the complainant that while performing surgery due to negligence on the part of Dr.Malpani his nerve of right leg was cut and due to said act he will get the pain throughout the life. He asked Dr.Arvind Soni to give it in writing. However, he refused for it. Thereupon, he asked about it to Dr.Malpani, however, he did not give any answer to him. Therefore, he has filed consumer complaint for deficiency in service and negligence on the part of opponents.
16. He has requested this State Commission to call report of expert committee from Civil Hospital, Aurangabad. It has submitted opinion on 16.11.2017. The committee has observed that there is no "gross" negligence on the part of opponents. However, from this admitted facts and the overall reading of the expert opinion it can be inferred that there is negligence on the part of opponent. Before filing the complaint the complainant had also wrote letter dated 14.11.2016 to Dr.Malpani, the copy of which is produced on record at page no. 93, about his grievances that in spite of his total right hip replacement and assurance to relieve him from continuous pain and difficulties while walking, he could not get relief. Hence, he has asked the opp. No.2 to accept his liabilities and claimed expenses and the compensation and total claim is submitted around Rs. 20 Lakh. According to him he will be required to take pain killer though out life and it may affect his kidney.
17. The opponent no.1&2 submitted in their affidavit that the complainant was suffering from bilateral avascular necrosis of femoral head diagnosed elsewhere around 9 years back for which his left side total hip replacement was done elsewhere. The complainant visited opponent no.1 hospital and consulted opponent no.2 Doctor in OPD with complaint of pain in right hip joint since last 9 years and aggravated 9 CC/27/2017 since last 5 years and he was feeling difficulty in climbing stare case. On examination it is noticed that his hip was significantly stiff with restricted movements and painful with shortening of length by 1.5 cm in comparison with left lower limb. After getting x-ray and examining, he diagnosed of severe osteoarthritis of right hip and total right hip replacement was advised.
18. It is the further submission of opp. that on admission of complainant before surgery all related check up and test were carried prior to surgery considering the age of complainant, severe Osteoarthritis of right hip and shortening of leg, all pros and cons of total hip replacement surgery informed to the complainant, with post operation need of ICU/blood transmission, flickering and numbness or neuro deficits and severe problems and requirements were informed and accordingly consent of patient and relatives were obtained, for carrying surgery. The opponent no.2 was assisted by other doctors during surgery. As anticipated in clinical examination and x-ray, his all tissues external rotators and joint capsule -around hip found contracted and fibrotic. His joint dislocation was also difficult due to delayed presentation of severe hip arthritis. The regular procedure for THR was followed by preparation of acetabulum, and femur done and -prosthesis put in and leg length achieved as compared to left lower limb. On postoperative day one he was stable. Operated side toe movements flicker and there was numbness in foot. Considering it to be neuropraxia and neuritis, secondary possibility of stretching of contracted sciatic nerve along with other contracted tissues, while getting limb length equalization intra ap, as compared to left lower limb. Oral steroid formation stated physiotherapy of right foot along with operated right foot advises. According to opp. as per literature spontaneous recovery can be expected in neuropraxia cases. The paritent discharged on post operation day 3rd with oral steroid & other medication & physiotherapy advised for right foot & operated right hip.
19. At the time of one month follow up minimal improvement in surgery as well motor symptoms of patient, neurologist opinion taken by 10 CC/27/2017 carrying nerve conduction study (NCS) on 3.10.2016. As suggested by NCS study, his Right Peroneal neuropathy (peroneal division of sciatic nerve) he was advised for EMG study to be done after 6 weeks. Patient was also advised to wear foot drop splint to avoid contrations and physiotherapy of right foot and ankle regularly. After 4 months follow up complainant's Sensory symptoms improved with minimal improvement in motor symptoms and thereafter he lost follow up. The report of medical board was called, there found no medical negligence. The opponent no.1&2 denied allegations as to medical negligence of deficiency in service. Reliance is placed on the judgment of Hon'ble National Commission in Kamalnayan Bajaj Hospital Vs. Jyoti Dhananjay Akude in Rev. Petition no. 890 & 879 /2012 decided on 29th Oct, 2012.
20. The opponent no.3 has submitted that the complainant was admitted in the hospital of opponent no.1 and opponent no.2 carried his surgery in opp no.1Hospital. He had come for follow up after surgery in the hospital of opponent no.3 on OPD basis. There are no allegations against opponent 3 as to medical negligence or deficiency in service, as the complainant was treated properly on his visits in OPD.
21. The opponent no.4 argued that the professional policy was obtained by opponent no.3 hospital, and there was treatment given only on OPD basis. Allegations as to medical negligence are against opponent no.1&2 about T.H.R. and alleged complications for which opponent no.3 and 4 are not liable to compensate the complainant.
22. On the basis of respective submissions of the parties following points arise for our determination. We have noted them along with findings against it, accordingly for the reasons to follow.
Sr.No. Points. Answers.
1 Whether, the complainant proved that there is Proved,
is negligence and deficiency in service on against opp.no.1and 2.
the part of opponent no.1to3 ?
2 Whether, the complainant is entitled As per final order.
for compensation as claimed?
3 What order? As per final order.
11 CC/27/2017
REASONS
Point nos.1&2 :-
23. We have gone through the record, evidence adduced by the parties. The complainant in support of his complaint submitted his evidence affidavit and also produced the documents which are at page Nos.16 to 93 already filed along with his complaint which are issued by opp. No.1and 2.. He has also relied upon the report forwarded by Medical Board from Govt. Medical College & Hospital, Aurangabad which is at page Nos.159-160, He has also produced medical bills and the OPD papers and bills issued by opponent no.3.
24. While the opponent no.1&2, have produced documents at the time of final argument, consisting of the medical papers since from admission of opponent till his discharge, regarding admission, medical history, diagnosis, surgery notes, the document produced during admission at page no. 1to51, below their written notes of arguments.
25. It is not disputed that complainant was suffering from severe pain and getting trouble in walking out of severe osteoarthritis to right hip. Therefore, he approached to opponent no.1 hospital. In the said hospital he was admitted, after taking history of patient, his clinical examinations, x-ray and on diagnosis he was advised by opponent no.2 to undergo total hip replacement of right hip.
26. As per record the complainant approached to opponent no.1 on 07.09.2016, on the same day his clinical examination, x-ray and other tests carried and he was immediately suggested to undergo T.H.R. surgery and on the next date i.e. 08.09.2016 his right THR surgery was carried and on 3rd day of post operation he was discharged. -He was advised to undergo physiotherapy, medicine and follow up on 22.9.2016.
27. Admittedly the complainant was aged about 65 years. He was suffering from Osteoarthritis for last 9 years and its gravity was 12 CC/27/2017 developed before 5 years. He has also disclosed that he has undergone total hip replacement (left) elsewhere 8 years back to opponent no.2. It is pleaded by opponent no.1&2 that on conducting his clinical examination, x-ray report his all required test were carried before surgery. And all pros & cons of the surgery and post operation complications were introduced to complainant and his relatives and informed consent was taken. The opponents no.1and 2 have produced the record of treatment along with consent form, regarding consent obtained.
28. According to complainant the opponent no.2 has assured him that after total hip replacement he will be relieved of pains and difficulty in walking. It reveals from his affidavit and letter forwarded to opponent no.2 Dr.Malpani that said letter is written after two months, giving information regarding his grievances and situation after operation and that in spite of his assurance given by opp. No.2' he could not get relief from pain and sufferings .and he was not in position to walk. He has expressed it helplessly that he has purchased the illness (pain) by paying for T.H.R. surgery and could not recover from pain and sufferings. He was requesting the opponent no.2 , to accept his liability.
29. Apart from this the opponent no.2 himself admitted in his pleading and affidavit of evidence that as anticipated with clinical state and x-ray of patient, intra-operatively , his all tissues like external rotators and joint capsules around hip found contracted and fibrotic.. Hip joint dislocation was also difficult due to surrounding fibrotic tissues and lot of Osteoarthritis around joint due to delayed presentation of severe hip Osteophytes. After a lot off soft tissues release, he could dislocate the hip.
30. According to opponent no.2 he has followed regular procedure of total hip replacement taking out femoral head followed by preparation of acetabulum & then femur done & posthesis put in and leg length achieved as compared left lower limb. The opponent no.2 also admitted that the day one of post operation, there found toe movement with flicker 13 CC/27/2017 with slight numbness in foot considering neuropraxia or neurosis, secondary to possibly stretching of contracted sciatic nerve along with other contracted tissues, while getting the limb length equalisation intra of as compare to lower limb, therefore, he started oral steroid pharmulation.
31. This clearly shows that though the opponent has followed formalities of - operation or obtained consent for surgery, and as anticipated the complications due to severe -arthritis and he found joint capsules around right hip contracted and fibrotic, it was become difficult to get dislocation; he was supposed to take more precaution while stretching the limb to achieve equalization, and it was of only 1.5 cm.
32. It further reveals that the opponent no.1&2 advised for physiotherapy of foot and ankle and referred him for NCS (nerve conduction study)to Dr.Anand Soni on 03.10.2016 who has noticed right perineal mono neuropath (perennial division of sciatic nerve) and advised the complainant to go for emg study after 6 weeks There are the medical papers regarding examination- of complainant by opponent no.1 in MIT hospital ( of opponent no.3) 71 to 90 consisting of summary recorded by Dr.Anand Soni is at page no. 78 and report regarding EMG study dated 14.3.2017 as advised by opponent no.2 and Dr.Anand Soni after 4 weeks of his NCS.
33. It clearly reveals from NCS study report at page no. 78, which states that his right peroneal nerve were non recordable and from NCS study it is suggested right peroneal mononeuropathy ( suspected perennial division of sciatic ) suggests EMG after 3 weeks.
34. According to complainant during this NCS test Dr.Anand Soni has disclosed to him that his sciatic nerve was cut during surgery due to negligence of opponent no.2. However, he was not ready to give it in writing. Of course opponent no.2 and Dr.Anand Soni working with opponent no.3 and opponent no.2 has referred to complainant to 14 CC/27/2017 Dr.Anand Soni. But the complainant being patient and what he has concluded in report must have explained to the complainant that there is some damage to the sciatic nerve.
35. From EMG report also it reveals that it is carried by Dr.Prajkta Deshmukh. The clinical history states right foot drop noticed In Oct. THR done in Sept. 2016.
Summery regarding EMG Test is as follows...
Sensory :
Right Sural :Moderately attenuated SNAP Right Sup Sup Personal: No response.
Motor :
Right comm peroneal- EDB- No response. Right comm personal -T.A :No response. Right Tibial- AH: Mildly attenuated CMAP. Right Tibial-Gastroc: Normal.
H Reflex-:
Right Tibial: No response.
EMG findings as listed:
Impression:
There is e/o right sciatic neuropathy affecting its common Peroneal div >> Tibial div division distal to sciatic notch.
1. Common peroneal division *Type: severe partial axon degeneration with no e/o ongoing reinnervation noted in TA & PL muscles.
2. Tibial Division.
* Type - Mild partial axon degeneration .
15 CC/27/2017
36. According to opponent no.2 the complainant failed to keep follow up after 4 months when there found some improvements. However, it is not acceptable, because the complainant was attending the advice given by opponent no.2 to him and Dr.Anand Soni and therefore, he had also been for EMG test to Dr.Prajkta Deshmukh in the month of March 2017.
37. The opponent no.2 has neither disclosed the complication regarding damage to his sciatic nerve, and also not given response to his letter. It also reveals that there is substance in the submissions of complainant that though opponent no.2 has given assurance to him that he could be relived from pain and suffering while walking or climbing stare case. However, he is still undergoing pain and sufferings and he is required to take pain killer medicine long life.
38. Apart from this it reveals that the complainant is required to call the report of Govt. Medical Board, Aurangabad which is at page no.161. It can be inferred in the light of evidence and admission given by opponent no.2 that there is negligence on the part of opponent no.2. The Medical Board has also noted in the report that Dr.Kanjalkar Neurophysician examined patient thoroughly for sciatic nerve injury.. the committee is submitting its report as follows -
"Operated case of right hip replacement for gross osteoarthritis. Patient developed motor and sensory weakness on post operative day 1 only, flicker of contraction of toes seen. There was numbness below knee. This may be possibly because of stretching of sciatic nerve during operative procedure itself, operative surgeon is also admitting the same. This is known rare complication of this operation. From this it appears that neuro deficit is because of sciatic handling during operative procedure and there is no direct cutting of sciatic nerve. As this is known rare complication of total hip replacement operation, there appears to be no gross clinical negligence on doctors part."
39. From this report and admissions given by opp. No.2, it reveals that in spite of having knowledge of complications arose during surgery, and 16 CC/27/2017 its consequences noted after surgery, and in spite of raising grievances by complainant, opponent no.2 was silent throughout and he has not disclosed why he was getting pain flickering or numbness to his lower limb. The evidence on record corroborate the grievances of complainant that Dr Anand Soni has disclosed about the damage sustained to the nerve of complainant due to which he was getting pain and sufferings. There upon the complaint wrote a letter to opponent number 2, to accept the liabilities. And the opponent no.2 kept quiet. The aforesaid conduct on the part of opponent number 2 shows his negligence and deficiency in service on his part towards the complainant.
40. The ld. Adv. for opponent no.1and2 has also argued that, there is no conclusive report. However, on overall reading the evidence of parties, the -haste caused by opponent no.2 in advising the total Hip replacement immediately on next day of approaching the complainant to him and in spite of anticipated complications, has advised the complainant to undergo the T.H.R. And as admitted by opponent that as anticipated complications there found tissues line external rotation and joint capsules around right hip contracted and fibrotic and it was getting difficult for dislocation. Therefore, he was supposed to take more precaution while stretching the leg to get equalisation in lower limbs. Admittedly the nerve was damaged to some extent while stretching the leg. Hence, there is deficiency in service and negligence on the part of opponent no.2 who has conducted the THR surgery in the hospital of opponent no.1,while attached to opp. No.1Hospital. Hence, opponent no.1&2 are liable to compensate the complainant.
41. The act of the opp. No.1 is such , it has resulted in causing pain and suffering to complainant for throughout remaining life. As he is still getting pain and sufferings and required to take medicine, which has caused him financial loss, as well as mental and physical agony. Hence, considering act of negligence and it's consequences resulted in sufferings of complainant, deficiency in service during & in post operated period it will be just and proper to compensate the complainant by issuing 17 CC/27/2017 directions to opponent no.1&2 to compensate them in proportionate to the negligence and deficiency in service on their part.
42. The opponent no.1&2 relied upon the judgment of Hon'ble National Commission as stated Supra. However, facts of that case are distinguishing from present case. In the case in hand the opponent no.2 would have taken appropriate precautions considering his own experience in the field of orthopaedic surgeon, while stretching the right leg to achieve equalization of lower limb only of 1.5 cm as discussed earlier.
43. In the given fact and circumstances of the case the complainant is entitled for the expenses incurred, on treatment of Rs. 1,45,280/- + 1650/- as per the bills issued by opp.no.1 hospital, and amount spent towards further treatment of Rs.2,250/- as per bill issued by MIT Hospital and Rs.2,700/- towards the bill issued by Dr. Prajakta Deshmukh. The complainant has pleaded that he has also incurred expenses towards the fees of other doctors for Rs.36,750/. However, no bills of said amount are produced on record. However, It cannot be ignored that the complainant has incurred expenses towards physiotherapy and judicial note can be taken that he is also required to spend for conveyance. It has come on record in the letter addressed to Dr. Malpani (at page 93)that he was required to spend Rs.750/- per day towards shock treatment and physiotherapy for 2 months. From this it can be gathered that the complainant must have spent Rs.750/- per day for about 2 months. However, he could not produce the bills regarding those expenses of physiotherapy and conveyance. He has mentioned in particulars of the claim that he has incurred Rs. 36,750/- towards fees of other Doctors and Rs 10,000/- misc expenses. Therefore in addition to bills on record, it will be just and proper to award Rs.40,000/- towards treatment of physiotherapy and misc. expenses and conveyance, the complainant is entitled to claim aforesaid amount with interest at the rate of 9 % p.a. from the date of complaint. In addition to that the complainant is entitled for Rs.2 Lakh towards the compensation for 18 CC/27/2017 medical negligence and deficiency in service, in not giving any attention towards the grievances of complainant in spite of his personal request made to opponent no.2. He is also entitled for Rs. 50,000/- towards mental agony and Rs. 25,000/- towards cost of proceeding from opponent no.1&2. So far as opponent no.3 hospital is concerned, Dr.Malpani was also attached to their hospital, the opponent no.2 called the complainant in the said hospital for follow up. Dr. Malpani referred the complainant to Dr.Anand Soni, attached to MIT hospital, for NCV test. The complainant thus treated on OPD basis T.H.R. (Right) surgery. Dr.Anand Soni referred the complainant to Dr.Deshmukh for further test. There is no allegation or any relief claimed against opponent no.3.
44. The opponent no.4 insurance company is made party as the opponent no.3 has disclosed in their written statement, that opponent no.3 hospital obtained professional indemnity policy from opponent no.4 insurance company. However, the T.H.R. surgery carried by opponent no.2, in the hospital of opponent no.1, and therefore, for grievances against opponent no.1&2 no directions can be issued against opponent no.3&4. Hence, in the circumstances no relief can be granted against opponent no.3&4.
45. With the aforesaid discussion we answer the points accordingly and pass following order.
ORDER
1. The complaint No.27/2017 is partly allowed against opponent no.1&2.
2. The opponent no.1&2 shall pay jointly & severally amount of Rs.1,45,280+1,650=1,46,930 towards expenses of surgery & OPD bills paid to opponent no.1.
3. The opponent no.1&2, shall also pay expenses of Rs.2,250/- paid to opponent no.3 for treatment in OPD and test advised by opponent no.2 and Rs. 2,700/- paid to Dr.Deshmukh, for post operation treatment and NCV test . And Rs.40,000/- towards physiotherapy and misc. expenses towards conveyance. Thus, total 19 CC/27/2017 amount of RS.1,91,880./-towards expenses, with interest at the rate of 9 % p.a. from the date of complaint i.e. 27.10.2017 till realisation of entire amount.
4. The opponent no.1&2 shall pay Rs.2,00,000/- towards compensation to complainant for negligence & deficiency in service.
5. The opponent No.1&2 shall pay jointly & severally Rs. 50,000/- towards mental and physical agony and Rs.25,000/- towards cost of proceeding.
6. The opponent No.1&2 shall pay the aforesaid amount within 30 days from receipt of this order.
Mr.K.M.Lawande Smt.S.T.Barne, Member Judicial Member UNK