State Consumer Disputes Redressal Commission
Dr. Harpreet Singh vs Harkanwar Singh @ Robin on 12 January, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.626 of 2014
Date of Institution: 27.05.2014
Order reserved on:10.01.2017
Date of Decision : 12.01.2017
1. Dr. Harpreet Singh, Orthonova Hospital, Orthonova Joint &
Taruma Hospital (P) Ltd., Nakodar Road, Near Nari Niketan
Jalandhar City.
2. Orthonova Hospital, Orthonova Joint & Taruma Hospital (P)
Ltd., Nakodar Road, Near Nari Niketan Jalandhar City through
its Principal Officer.
.....Appellants/opposite party nos.1 & 2
Versus
1. Harkanwar Singh @ Robin son of S. Nanak Singh Passport
No.G2508385 R/o 41, Raja Garden, Basti Bawa Khel,
Jalandhar city presently at 18 Mayo Street SUNSHINE, VIC
3020 Australia through Special Power of Attorney Holder and
father S. Nanak Singh S/o S. Tarlok Singh R/o 41, Raja
Garden, Basti Bawa Khel, Jalandhar City.
.....Respondent no.1/complainant
2. The New India Assurance Co. Ltd., Building 87, Mahatma
Gandhi Road Fort, Mumbai.
.....Respondent no.2/opposite party no.3
First appeal against order dated
17.04.2014 passed by the District
Consumer Disputes Redressal
Forum, Jalandhar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri J.S. Gill, Member Shri H.S. Guram, Member Present:-
For the appellants : Sh. Sandeep Suri, Advocate For respondent no.1 : Sh. Parminder Singh, Advocate For respondent no.2 : Sh. R.K. Sharma, Advocate .................................................
AND 2) First Appeal No.744 of 2014 Date of Institution: 16.06.2014 Order reserved on:10.01.2017 First Appeal No.626 of 2014 2 Date of Decision : 12.01.2017 The New India Assurance Company Limited, Building 87, Mahatma Gandhi Road Fort, Mumbai.
Through authorized officer Sh. A.L. Madan, Manager (Legal), New India Assurance Company Limited, Regional Office, SCO 36-37, Sector 17-A, Chandigarh.
.....Appellant/opposite no.3 Versus
1. Harkanwar Singh @ Robin son of S. Nanak Singh Passport No.G2508385 R/o 41, Raja Garden, Basti Bawa Khel, Jalandhar city presently at 18 Mayo Street SUNSHINE, VIC 3020 Australia through Special Power of Attorney Holder and father S. Nanak Singh S/o S. Tarlok Singh R/o 41, Raja Garden, Basti Bawa Khel, Jalandhar City.
.....Respondent no.1/complainant
2. Dr. Harpreet Singh, Orthonova Hospital, Orthonova Joint & Taruma Hospital (P) Ltd., Nakodar Road, Near Nari Niketan Jalandhar City.
3. Orthonova Hospital, Orthonova Joint & Taruma Hospital (P) Ltd., Nakodar Road, Near Nari Niketan Jalandhar City through its Principal Officer..
.....Respondent nos.2-3/opposite party nos.1-2 First appeal against order dated 17.04.2014 passed by the District Consumer Disputes Redressal Forum, Jalandhar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member Shri. J.S. Gill, Member Shri H.S. Guram, Member Present:-
For the appellant : Sh. R.K. Sharma, Advocate For respondent no.1 : Sh. Parminder Singh, Advocate For respondent no.2&3 : Sh. Sandeep Suri, Advocate First Appeal No.626 of 2014 3 J.S KLAR, PRESIDING JUDICIAL MEMBER :-
By this common order, we intend to dispose of the above referred two first appeals, as they have arisen out of the same order of the District Consumer Disputes Redressal Forum, Jalandhar (in short 'the District Forum') dated 17.04.2014, vide which, the complaint of the complainant was accepted by directing OPs to pay Rs.2,50,000/- to the complainant, as compensation within one month from the date of receipt of copy of the order, besides Rs.3000/- as litigation expenses. The order shall be pronounced by us in first appeal no.626 of 2014 titled as "Dr. Harpreet Singh & another Vs. Harkanwar Singh" which has been filed by the appellants/opposite party nos.1 & 2.
2. The appellant of first appeal no.744 of 2014 has filed this appeal, challenging order dated 17.04.2014 of District Forum Jalandhar, vide which, the complaint of the complainant was accepted as referred to above. The appellant of this appeal is OP no.3 and respondent no.1 of this appeal is complainant and respondent nos.2 and 3 are the opposite party nos.1 & 2 in the original complaint before the District Forum below and they be referred as such hereinafter for the sake of convenience.
3. The complainant instituted the complaint against OPs through his father, special power of attorney holder. It was averred that OP no.1 conducted the operation upon the complainant at OP no.2 hospital, carried on by OP no.1. It was further averred that after First Appeal No.626 of 2014 4 completing his 10+2, he went to Australia on study visa on 24.09.2007. The complainant has been working in security agency MLD Security PTY Limited, 37, Parkes Way, Burnside Heights, VIC 3023 and was a senior soccer team player and was playing soccer since September 2010 for Singh Sabha Sports Club Melbourne. The complainant was hopeful for selection in the International team of the soccer tournament before wrongful operation conducted by OP no.1.
On 24.01.2012, the complainant visited at Jalandhar and he was feeling pain in right knee. He contacted OPs for check up and was referred to Super Scanning & Diagnostics (P) Ltd., Anuj Tower, Kapurthala Chowk, Jalandhar for the purpose of MRI of right knee. The report of the same was given on the same day i.e. 25.01.2012. The complainant approached OPs with MRI report for advice and further treatment. OP no.1 stated that there was nothing serious after examining the MRI report and represented that the problem could be cured with physiotherapy. Since, he was soccer player and could not wait for long time, hence OP no.1 advised him for knee operation by holding that it would be a small surgical operation to be conducted in 15-20 minutes and thereafter he could walk for the next day and it would also cost about Rs.15,000/- only. The complainant was admitted on the advice of OP no.1 for operation on 13.02.2012. OP no.1 took time of 45 minutes for conducting the said surgical operation. OP no.1 told the father of the complainant that wrong surgical procedure was conducted for treatment of complainant, as he wrongly operated Anterior Cruciate Ligament (in short 'ACL') at First Appeal No.626 of 2014 5 the place of lateral meniscus. It was further averred that ACL was normal in the MRI scan report and there was problem in lateral meniscus. OP no.1 felt jittery in this regard by stating that he had wrongly operated ACL in place of lateral meniscus. When the MRI scan report was in hands of OP no.1, he mentioned ACL and encircled it. When the father of the complainant was miffed with OP no.1, he replied that he had done the right operation. OP no.1 asked the complainant to take rest for a period of about one month or more. The complainant remained in the hospital of OP no.1 for the period from 13.02.2012 to 15.02.2012 and he incurred Rs.45,000/- for this procedure. The complainant remained confined to bed rest of the period in India till 02.04.2012 and thereafter returned to Australia. The complainant was disabled to join his duty till July 2012. The OPs had not told to complainant about any such surgical operation, expenses involved or repercussions thereon. No consent of the complainant or his father was ever sought by the OPs. The ACL procedure was not required and it was only lateral meniscus. Capital Radiology, Western Private Hospita, Marion Street, Footscray VIC 3011, Australia examined the complainant and they told him that wrong operation has been performed upon him. Due to wrong surgical procedure done by OPs, the complainant suffered losses in his job and also became incapable of playing soccer game for time to come. The complainant still needs to be surgically operated for both the above referred problems, one was in existence i.e. lateral meniscus before wrong surgical operation was performed by OPs First Appeal No.626 of 2014 6 and another was caused by OPs by doing wrong surgical operation of ACL. The complainant, thus, prayed that OP be directed to pay medical expenses of Rs.45,000/-; to pay Rs.9,50,000/- for loss of salary for 4 months period; to pay Rs.4 lakhs for surgical operations; and to pay Rs.5 lakhs as compensation for mental harassment.
4. The District Forum served notice upon OPs and they filed written reply and contested the complaint. It was averred that complaint is without cause of action and without specific allegations regarding negligence or deficiency in service. OP no.1 is a qualified and reputed orthopaedic surgeon with degrees of MBBS, M.S. (Ortho). It was further averred that OP no.1 examined the complainant and diagnosed him properly and treated as per the standard medical protocol and as per medical text books and journals of the subject. The complainant was recovered significantly from his ailment and was discharged in satisfactory and stable condition. The complaint has been filed on the basis of after thought story. The complainant invented false and frivolous allegations against the OPs in the complaint. The matter is highly technical in nature, which cannot be adjudicated in summary manner by Consumer Forum and needs to be relegated to Civil Court. It was further pleaded that MRI report does not always correlate to the actual findings, which are seen during surgery. This fact can be confirmed by the numerous studies. OP no.1 treated the patient with due care and diligence, as per prescribed norms and general practice of medical protocol. MRI report is not the final diagnosis. In First Appeal No.626 of 2014 7 all the reports, it is written that 'please correlate clinically'. The MRI report is to help the doctor for reaching a final diagnosis. It was further averred that MRI report depends on the physician looking at the pictures, the type of machine, the experience of the reporting doctor, the imaging window made by the technician. MRI report was done on a single patient by the different centres and gave different reports. It was further averred that no surgery is small surgery and arthroscopy is a major operation. The OPs clearly explained to patient that the meniscal reception would take 15-20 minutes and any other defect seen during the arthroscopy would be dealt with therein, because the surgery cannot be closed up and opened again, if more than one defect is seen. It was further pleaded that PCL tear isolated without ACL tear is not possible. There was misreporting as confirmed by the II MRI, which stated PCL is normal. (A ligament would never heal by itself, it has to be reconstructed). Without surgery, the PCL would never be healed and it clearly depicts different reporting. The MRI was got done by complainant without physical examination of patient by the concerned doctor. The patient is trying to get his MRI report treated, but in medical science, it is patient who has to be treated and not the report. The complainant had not got himself examined from any arthroscopic surgeon. It was further averred that surgical cost of meniscal treatment is Rs.18,000/- in OP's hospital and for ACL is Rs.26,000/-. On a arthroscopy and careful examination, there was tear-post horn of medical meniscus, which was trimmed carefully and the free piece First Appeal No.626 of 2014 8 removed, extra trimming was avoided as the cushioning effect would be lost and meniscus would become loose. ACL was found ruptured and was reconstructed successfully by bone patient tendon bone implant salvage from the knee itself (The post MRI shows the harvested graft and the interference screws). Even a plain X-ray would show the bony graft and the screws. A cartilage defect was seen in the medical condyle of femur, which would further required mosaic plasty which was not available in OP's centre at that time. This was the first time, mosaic plasty was required during a routine operation. During arthroscopy, it is never the principle of any surgeon to leave any surgery half done. Whatever repair has to be done, is done in the 1st operation, and trauma to the knee may injure it more. The OPs denied the allegations leveled by the complainant. It was averred that there was no ACL tears and there was no need to reconstruct it. No surgeon would cut normal ACL and then put a new ACL for only Rs.8000/-. ACL construction would not affect the new functions in any case, it would only help the patient in his game. The patient was told in MRI report that was ACL and not PCL, because PCL never ruptures without rupture of ACL and the second MRI shows a good strong PCL. On arthroscopy also, no PCL injury was seen. PCL injury makes the knee so unstable that a person cannot walk. It was denied that OP no.1 conducted wrong surgical operation upon complainant. Whatever was done, was done for the well being of the patient without any financial constraints in mind and the patient himself was apprised of the condition during surgery. On First Appeal No.626 of 2014 9 arthroscopy, there was no tear of the lateral meniscus; the cyst was removed and derided. The medical meniscal tear posteriorly was dealt with, no anterior tear was seen. No surgery was required for LM tear, as there was no tear seen during arthroscopy. ACL graft if ruptured might have to be operated, if there was instability. OP nos.1 and 2 denied the other averments of the complainant and prayed for dismissal of the complaint.
5. OP no.3 filed separate written reply stating that no scientific, justified and specific allegations have been raised proving any negligence or deficiency in service on the part of OP nos.1 and
2. There is no pleading as to how the OPs are negligent. OP no.1 prayed for dismissal of the complaint.
6. The complainant tendered in evidence affidavit Ex.CW- 1/A along with documents Ex.C-1 to C-27 and closed the evidence. As against it, OP nos.1 and 2 tendered in evidence affidavit Ex.OP-A along with documents Ex.OP-1 and closed the evidence. OP no.3 tendered in evidence affidavit Ex.OP-A and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant, as referred to above. Aggrieved by the order of the District Forum, the OPs have filed above referred two separate appeals.
7. We have heard the learned counsel for the parties and have also examined the record of the case. Evidence on the record is required to be examined by us to come to the correct conclusion with regard to the allegations of medical negligence against OPs by First Appeal No.626 of 2014 10 complainant. The complainant based his case on MRI report Ex.C-3 dated 25.01.2012, which reproduced as under:-
"Study reveals normal alignment of bones forming knee joint. Normal narrow signal intensity is maintained. No bony fracture seen.
Complex grade III tear of body of lateral meniscus is noted involving the inferior surface and peripheral lateral attachment of the meniscus. Associated small intrameniscal and a multi septated parameniscal cyst formation is also seen. Grade II tear of anterior horn of lateral meniscus is also seen. Anterior horn of medical meniscus is partially extruded and shows a small minimally displaced grade III tear involving its free margin.
Partial thickness tear of posterior cruciate ligament is also seen.
Minimal free fluid is noted in joint space. Anterior cruciate ligament and both collateral ligaments are normal.
Articular cartilage is normal.
Patellar tendon/ligament & patellar retinaculum are normal. Muscles and tendons around knee joint are normal. No subcutaneous abnormality seen.
Conclusion :-First Appeal No.626 of 2014 11
* Complete Grae III tear involving body of lateral meniscus with associated small intrameniscal and multi septated parameniscal cyst formation.
* Partially extruded anterior horn of medical meniscus with small grade III tear of its free margin.
* Partial thickness tear of posterior cruciate ligament. The conclusion of MRI report Ex.C-3 records that "complete Grade III tear involving body of lateral meniscus with associated small intrameniscal and multi septated parameniscal cyst formation. Partially extruded anterior horn of medical meniscus with small grade III tear of its free margin. Partial thickness tear of posterior cruciate ligament." MRI report Ex.C-3 has, thus, made it clear that there was complete Grade III tear involving body of lateral meniscus with associated small intrameniscal and multi septated parameniscal cyst formation. As per MRI report, patellar tendon/ligament & patellar retinaculum were normal, muscles and tendons around knee joint were normal. The version of the complainant is that instead of reconstructing lateral meniscus (LM), OP no.1 wrongly operated upon ACL of complainant.
8. The submissions of OPs is that as per MRI report there was complex grade II tear involving body of lateral meniscus, which was not found during arthroscopy, which was cleared during operation and ACL was found defective during arthroscopy and was required to be reconstructed, which was performed. The emphatic First Appeal No.626 of 2014 12 submission of counsel for OPs that MRI report was not correct report because there was a cartilage defect, seen during arthroscopy, but this defect was not mentioned in MRI report, which would further require mosaic plasty, which was not available in the hospital of OP no.1 at that time. The MRI report is not stated to be 100% correct as per medical literature. This is the main state of the case of OPs now appellants.
9. As argued before us by counsel for the parties, the position of lateral meniscus and anterior cruciate ligament depicted in the picture of torn meniscus as below:
It is evident from perusal of above picture of knee that lateral meniscus (LM) and anterior cruciate ligament (ACL) are quite distinct one. It is version of OPs now appellants that MRI report was incorrect and hence surgery was performed to repair the ACL. The ACL and both collateral ligament were reported to be normal in MRI report Ex.C-3 and there was only tear involving the LM.
10. Now, we are concerned with this fact whether MRI report Ex.C-3 is to be preferred or the accuracy of clinical examination and MRI taking arthroscopy is to be preferred. As per medical literature, First Appeal No.626 of 2014 13 ACL injuries are more common in women than men. No doubt, MRI report is always not 100% correct. Patients and methods: 60 patients with knee injury were subjected to clinical examination, MRI and then Arthroscopy. The results were compared and analysed using various statistical tests. Results, diagnostic accuracy of MRI was 66.67% for medical meniscus and 90% for lateral meniscus grade II and IV with 88% in the case of ACL tears. Diagnostic accuracy for both clinical examination and MRI examination came out to be 90% conclusion. Diagnostic arthroscopy can avoid in patient with ACL and PCL injuries having equivocal clinical and MRI examination and go on for therapeutic modality. As per medical literature, in case of ACL tears, diagnostic accuracy for both clinical examinations and MRI examination came out to be 90%. So the report of MRI is fairly accurate. In this case, in MRI report Ex.C-3, no tear was found in ACL and only complex grade III tear, involving body of lateral meniscus was detected. We find nothing on record establishing the falsity of the MRI report in this case. The complainant further relied upon Ex.C-10, the Radiological report given in Australia. It is recorded in conclusion of Ex.C-10 that "a horizontal oblique tear through the body of the lateral meniscus and a radial tear through the free margin of the body and anterior horn of the meniscus. As per this report, there was a tear through the body of the lateral meniscus (LM), which corroborate the MRI report Ex.C-3.
11. On hearing the respective submissions of counsel for the parties and record of the case, we rely upon the MRI report Ex.C-3 First Appeal No.626 of 2014 14 and radiological report Ex.C-10 in reaching the conclusion that OP no.1 operated ACL of complainant instead of lateral meniscus. The MRI report is quite accurate than clinical examination. We, thus, agree with the conclusion arrived at by the District Forum that OP no.1 wrongly operated ACL instead of LM. It is certainly deficiency in service on the part of OP nos.1 and 2. The complainant incurred the expenses of Rs.45,000/- on the treatment in the hospital of OP no.1. The complainant suffered undue pain and harassment and District Forum awarded lump-sum amount of Rs.2,50,000/-. We find that the interest of the justice would be fully met in this case as the lump-sum compensation of Rs.2,50,000/- to complainant towards medical negligence and deficiency in service on the part of OP nos.1 and 2 is reasonable one. We also affirm the order of District Forum regarding award of Rs.3000/- as costs of litigation. We find no illegality or material infirmity in the order of the District Forum calling for any interference therein.
12. As a sequitur of our above discussion, we find no merit in first appeal no.626 of 2014, filed by OP nos.1 & 2 and another first appeal no.744 of 2014 directed by OP no.3 and the same are hereby dismissed.
13. The appellants of first appeal no.626 of 2014 had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.1,35,250/- in compliance with order of this Commission. Both these amounts alongwith interest, which accrued thereon, if any, be remitted by the First Appeal No.626 of 2014 15 Registry to respondent no.1 of this appeal by way of a crossed cheque/demand draft after the expiry of 45 days. Remaining amount, if any, due thereafter be also paid by the OPs to the complainant within 30 days from the date of receipt of certified copy of order.
14. The appellants of first appeal no.744 of 2014 had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount alongwith interest, which accrued thereon, if any, be remitted by the Registry to respondent no.1 of this appeal by way of a crossed cheque/demand draft after the expiry of 45 days. Remaining amount, if any, due thereafter be also paid by the OPs to the complainant within 30 days from the date of receipt of certified copy of order.
15. Arguments in above referred appeals were heard on 10.01.2017 and the orders were reserved. Copies of the orders be communicated to the parties as per rules. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J. S. GILL) MEMBER (H.S. GURAM) MEMBER January 12, 2017 (MM)