State Consumer Disputes Redressal Commission
Mahesh Chander vs Satguru Partap Singh Apollo Hospital on 2 February, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 228 of 2014
Date of institution: 10.12.2014
Date of order reserved: 23.01.2017
Date of Decision: 02.02.2017
Mahesh Chander Sharma S/o Sh. Ram Lal, Resident of House No.
Defendant-1293, Parshuram Nagar, Fazilka, Distt. Fazilka (Pb.)
Complainant
Versus
1. Satguru Partap Singh Apollo Hospital, Sherpur Chowk, G.T. Road,
Ludhiana through its Managing Director/Executive Director.
2. Dr. Deepinder Singh, Senior Consultant, Neuro Surgery, Satguru
Partap Singh Apollo Hospital, Sherpur Chowk, G.T. Road, Ludhiana.
Opposite Parties
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the complainant : Sh. Sandeep Jasuja, Advocate
For the opposite party : Sh. Navneet Jindal, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Complainant has filed this complaint against the Opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Complaint No. 228 of 2014 2 Consumer Protection Act, 1986 (for short 'the Act') on the averments that he is retired Ex-Servicemen and is ECHS Card Holder. He met with an accident on 4.2.2013 and was taken to Dayanand Medical College & Hospital, Ludhiana (in short DMC) and remained admitted there for 20 days, during which he had undergone routine investigation CT Scan Head & MRI Cervical Spine. As per MRI dated 21.2.2013, the hospital was reluctant to go for surgery, therefore, he was discharged on 24.2.2013. Then he approached Op No. 1 on 4.3.2013 and was admitted there against I.D. No. 249113 and they opted for surgery, which was conducted by Op No. 2. After conducting the surgery, no MRI and other tests were conducted. At the time of admission, he was feeling weakness of right upper limb. He was diagnosed with acute subluation C-3, C-4 with Cord Oedema and was operated on 8.3.2013 without disclosing the fact that it could cause risk of loosing motor powers in the surgery and he lost motor powers of all the four limbs. However, he was discharged by Ops on 21.4.2013 with the observations that there was improvement in the power lower limb, in a satisfactory condition, whereas there was no improvement in any of the lower limbs. In fact Ops were negligent in deciding the mode of treatment and in giving the treatment. In the present case, there were two options i.e. conservative management and operation. While opting for operation, Ops did not disclose risk involved in the operation. After operation, when MRI was conducted on 8.3.2013, it was found C-3, C-4 to C-6, C-7 post operative and implant related signal and implant related signal abnormality with posterior displacement causing compression on thecal sac and cord Consumer Complaint No. 228 of 2014 3 with relatively more marked posterior displacement of C-6, C-7 disc implant causing focal cord signal change has regressed slightly and another MRI Spine was conducted on 9.3.2013. On account of swelling, complainant had lost power of urine bladder as well as ana Isphiciter. These MRIs further disclosed implant resulted signal abnormality. It was not brought to the notice of Op No. 2 and never conveyed about the future prospects of the said complication but was discharged on 21.4.2013 in order to get rid of the patient, however, the patient was again admitted in the hospital on 23.4.2013 and remained admitted upto 27.6.2013 and another surgery was conducted in March, 2013 through which urine control and stool control was regained but power of lower limb was not regained. Op No. 2 assured that it will be regained with the passage of time and ultimately, he was discharged on 27.6.2013. The complainant again came to Op hospital on 31.7.2013 and was advised admission and remained admitted there upto 4.9.2013 with wrong observations that there was improvement in the patient condition. In fact there was no improvement. After discharge from Op Hospital, complainant was shifted to Indian Spinal Injury Centre on 4.9.2013 and started taking physiotherapy and also came to know about the status with respect to powers of limbs for the first time. They had a well equipped Physiotherapy Centre, which Ops were not having. He took a house on rent in Mahipalpur adjoining to the Centre and continuously got the physiotherapy and to some extent, he was able to recover the limb power and with an assistance he is able to stand but is unable to move. In case Ops were not having proper infrastructure, they should Consumer Complaint No. 228 of 2014 4 not have admitted the complainant or should have referred the patient to another institution for post operative care. The complainant was working as English Teacher in Govt. Middle School, Village Lohke Khurd, Ferozepur. At the time of accident, he was drawing Rs. 18,000/- per month, which was increased to Rs. 31,500/- w.e.f. 1.4.2013. Due to disability, he could not join the duty till date. Alleging deficiency in service on the part of Ops, complainant filed this complaint seeking directions to Ops to pay compensation of Rs. 85,89,731/- on account of charges paid to the Hospital, special diet, loss of earning capacity, cost of attendant, damage of loss for expectation of life, inconvenience, hardship, discomfiture, mental stress.
2. Complaint was contested by Ops, who filed their written reply taking preliminary objections that the complaint is not maintainable as there is no deficiency in service on the part of Op; the allegations in the complaint are wholly false, fabricated, frivolous, fake and untenable. In fact the complainant met with an accident on 4.2.2013 and was taken to DMC & Hospital, Ludhiana as per MRI cervical spine dated 21.2.2013. He had injury in the spine. Complainant and his relative insisted to get a much advance treatment from a renowned Neurosurgeon, got him discharged from DMC on 24.2.2013 and was admitted with Ops. Whereas Op No. 2 is a well known Neurosurgeon and the hospital was also enrolled under the ECHS scheme. As per MRI, he was suffering from C-3, C-4 Anterior Dislocation alongwith C-5, C-6 disc with an underlying spinal cord oedema. He was also having complaint of worsening of Motor Consumer Complaint No. 228 of 2014 5 Power alongwith weakness of all four limbs as chartered in the emergency record. Further examination of MRI revealed, dislocation of C-3, C-4 alongwith C-5, C-6 disc with cord compression and code oedema. MRI was recent i.e. 10 days back only, therefore, no fresh MRI was conducted as the patient should be avoided from such exposure as far as possible. The consent was taken from the relative of the complainant and operation was conducted successfully. On 8.3.2013 and during operation, it was found that there was marked dislocation at C-3, C-4 with cord compression and myelopathy and there was PIVD at C-6, C-7 level alongwith cord impingement. In such a condition, operation procedure was best possible curative operation procedure and was done by qualified and experienced Neurosurgeon-Op No. 2. After the operation, when MRI was conducted, MRI showed increase in cord oedema with mild compression of spinal cord due to the implant. To remove the said complication Methyl Prednisolone was started. Treatment was given as per NASCIS-3 Protocol, which is standard form of treatment recommended for all patients with spine injury. However, very slow improvement was seen in the complainant, therefore, it was decided to remove implant and complainant was put to conservative treatment procedure like physiotherapy and when there was some improvement, he was discharged on 21.4.2013 in a satisfactory condition. During the period of his admission from 4.3.2013 to 21.4.2013, complainant suffered the problem of loose stools with increased frequency of motions for which qualified gastro-enterologist was consulted and was treated. However, the complainant was again Consumer Complaint No. 228 of 2014 6 admitted on 21.4.2013 and remained admitted upto 23.4.2013 during which period number of medicines were advised as a part of treatment and was discharged on 23.4.2013. Complainant was again admitted for the 3rd time on 23.4.2013 with problem of hypertension, COPD, Type-2 diabetes alognwith complaints of weakness in right upper limb and was thoroughly investigated. The complainant underwent C-3, C-4 Laminectomy and posterior fixation using lateral mass screw on 27.4.2013 with conservative treatment alongwith Physiotherapy and various consent forms were taken to undergo further surgery and patient was discharged on 27.6.2013 in a satisfactory condition. The complainant was again got admitted for the 4th time on 31.7.2013 with problem of high grade fever, COPD, Type-2 Diabetes Mellitus alongwith complaints of difficulty and pain during urination. He was thoroughly investigated and was managed with antibiotics and supportive treatment. Alonwith Physiotherapy on examination through Ultrasound, vesicle calculus (Stones) were found in the urinary bladder, which was treated by expert Surgeons led by Dr. Vikas Kumar. Requisite consents were taken from the patient/attendants. Improvement was slow but relatives of the complainant insisted Op Hospital for discharge so that he could be taken to Indian Spinal Injury Hospital. Accordingly, he was discharged on 4.9.2013. Neurological deterioration after surgery and implant failure and misplaced implants have been reported in 20% cases, therefore, in case any problem was caused to the complainant during the treatment, it was a known complication of the procedure but no deficiency in service on the part of Ops. With regard to the medical Consumer Complaint No. 228 of 2014 7 record as and when the complainant applied for the record, the same was supplied to him and it was further advised to him that in case some more record is required, it can be collected from the MRD after contacting the Senior Executive. It was stated that there was no negligence on the part of Ops and complaint is without basis. On merits, the averments referred above in the preliminary objections were reiterated. It was again reiterated that the treatment was given as per the medical protocol as referred above. There was no negligence on the part of Ops. Complaint is without merit, it should be dismissed with costs.
3. The parties were allowed to tender their respective evidence.
4. The complainant had tendered into evidence affidavit of Sh.Mahesh Chander Sharma , S/o Sh. Ram Lal R/o House No.1293, Purshuram Nagar, Fazilka as Ex.CW/1, copy of medical record/bills as Ex .C-1 (Colly), copies of medicine bills pertaining to the treatment at Indian Spinal Centre, New Delhi as Ex.C-2 (Colly), copies of treatment bills in respect of treatment at Indian Spinal Centre, New Delhi as Ex.C-3 (Colly), copy of lease deed regarding accommodation taken at Mahipal Pur as Ex .C-4, copies of electricity bills as Ex.C-5 (Colly), photographs of the physiotherapy centre at Satguru Partap Apollo Hospital, Ludhiana as Ex.C-6 (Colly), photographs of the physiotherapy centre at Indian Spinal Centre, New Delhi as Ex.C-7 (Colly), copy of disability certificate of complainant as Ex.C-8, copy of certificate issued by Government Middle School as Ex.C-9, copy of notice dated 21.10.2014 as Ex.C- Consumer Complaint No. 228 of 2014 8 10, copy of letter of resignation as Ex.C-11, copy of certificate of BPEO, Zira as Ex.C-12, CD containing the recording of discussions with respondent No.2 as Ex.C-13 and copy of transcript of the said discussion as Ex.C-14. On the other hand, Ops had tendered into evidence affidavit of Dr. Deepinder Singh Ex. Op-A, admission and declaration form Ex. Op-1, consent forms Ex. Op-2 & Op-3, physiotherapy record Ex. Op-4, discharge summary Exs. Op-5 & Op- 6, physiotherapy record Ex. Op-7, consent form Ex. Op-8, discharge summary Ex. Op-9, physiotherapy record Ex. Op-10, consent form Ex. Op-11, discharge summary Ex. Op-12, demand letter Ex. Op-13, reply Ex. Op-14, demand letter Ex. Op-15, reply Ex. Op-16, retail invoices Ex. Op-17.
5. We have heard the learned counsel for the complainant Sh. Sandeep Jasuja, Advocate and learned counsel for the Ops Sh. Navneet Jindal, Advocate and have gone through the averments made in the complaint, written reply filed by Ops, written submissions made by the counsel for the parties and their submissions.
6. Whether there is any negligence on the part of Ops in giving treatment to the complainant(hereinafter referred as patient)?
7. As per the pleaded case of the complainant, he met with an accident on 4.2.2013 and was taken to DMC where basic investigation, CT Head and MRI Cervical Spine was done. On the basis of MRI Cervical Spine, DMC & H was reluctant to go for surgery and he was discharged from that hospital on 24.2.2013 and was taken to Op No. 1 on 4.3.2013 with patient ID No. 249113. They recommended for conducting the surgery. What was the position of Consumer Complaint No. 228 of 2014 9 the complainant at the time of his admission in the hospital can be taken from the discharge summary from 4.3.2013 to 21.4.2013, otherwise, day to day medical record of the patient has not been produced by Ops. As per the diagnosis in Op file, it has been mentioned as under:-
"Operation/Procedure Done:
- C3-4 dissectomy and reduction of dislocation and plating + C6-7 dissectomy and decompression & fixation done on
08.03.2013.
Operative findings:- Dislocation C3-4 with cord compressed and myelopathy
- C3-4 dislocation present
- C6-7 PIVD with Cord impingement.
- Removal of implant and bone was done.
However, Ops in their written reply in para No. 4 have stated that the complainant/patient was brought to the casualty of Op Hospital on 4.3.2013 with complaints of worsening of Motor Power alongwith weakness of all four limbs as chartered in the emergency record. However, this plea taken by the Ops in the written reply does not tally with the chief complaints of the patient and diagnosis diagnosed by Op Hospital, therefore, their pleadings are in contravention of their own medical record perhaps to cover the complaint of weakness of all the four limbs, which happened in their hospital after admission of the patient.
8. The next point taken by the counsel for the complainant is that MRI of cervical spine was done on 21.2.2013 at DMC & H, Consumer Complaint No. 228 of 2014 10 Ludhiana. They did not conduct any MRI and formed the opinion to conduct the surgery. No doubt that Ops did not perform any MRI. They have taken the plea that it was fresh MRI, just 12 days old and the complainant could not be subject to these type of tests time and again and whatever is found in the MRI, has not been contradicted by the counsel for the complainant during the course of arguments, therefore, in case they decided to proceed with the surgery dated 21.2.2013, it was quite a fresh MRI. There was no medical negligence on the part of Ops.
9. What was the outcome of the surgery, it can also be gathered from Ex. Op-5 in which operation/procedure done has been referred as under:-
"Operation/Procedure Done:
- C3-4 dissectomy and reduction of dislocation and plating + C6-7 dissectomy and decompression & fixation done on 08.03.2013.
Operative findings:- Dislocation C3-4 with cord compressed and myelopathy
- C3-4 dislocation present
- C6-7 PIVD with Cord impingement.
- Removal of implant and bone was done.
In case we go through the hospital course giving the details from 4.3.2013 to 21.4.2013, it is referred as under;-
"Hospital Course:
Patient came with h/o RTA one month back with diagnosis of Acute subluxation C3-C4 with cord odema. He is k/c/o COPD Consumer Complaint No. 228 of 2014 11 and hypertension on treatment and now complaint of weakness on right upper limb. Treated outside but referred to SPS Apollo Hospital for further management. Patient was operated on 8.3.2013. Patient had deterioration of motor power of lower limb. Urgent MRI done post operative on 9.3.2013. MRI cervical spine was done which showed C3-4 to C6-7 post operative and implant related signal abnormality with posterior displacement causing. Anesthesia review was made & Inj. Solumedrol was started. Patient had bilateral U/L & LL weakness and was shifted to MICU for close monitoring. Patient had c/o loose stools with increased frequency of motions for which gastro-
enterology consult was made & treated as advised. In ward patient went into hypotension & ABG revealed acidosis & was shifted to ICU for NIV support. He developed fever and urine culture grew ESBLE, Coil and antibiotics were started as per sensitivity. In due course he developed loose stools and work up for clostridium difficle was done which was negative and Vancomycin and probiotics were added. He developed fever and urine culture showed Acinetobacter and antibiotics as per sensitivity were added. Patient had persistent diarrhoea and sigmoidoscopy was done which showed ?Spuriour diarrhoea (Fecolith related) and treated accordingly. Patient is improving with no fever and diarrhoea in the past 2 days. There is also improvement in the power of lower limbs. Patient is now being discharged in a satisfactory condition."
Consumer Complaint No. 228 of 2014 12The perusal of the Hospital Course will reveal it that at the time of admission, the patient was having a complaint of weakness of right upper limb and patient was operated on 8.3.2013 and patient had deterioration of motor power of lower limb. Here the counsel for the complainant argued that the patient had come for treatment of weakness of right upper limb but after the operation, there was deterioration of motor power of lower limb. It happened due to wrong surgery adopted by the Ops that is why that they had removed the implant as per this discharge slip but it has not been referred on which date removal of implant had done. As per the pleadings on 8.3.2013, after the operation they had done MRI. The MRI record has not been placed on the record and withheld by the Ops for the reasons best known to him. As per their written reply, MRI showed increase in Cord oedema with mild compression of spinal cord due to implant and implant was removed but the record is not clear on which date, it was removed. After that conservative treatment was started. In case anything bad has happened to the patient then it is for the Ops how it happened, firstly for not placing on the record, their medical record from showing day to day progress notes. Even Op No. 2 was personally present before this Commission at the time of arguments and he was also unable to explain how the motor power of the lower limb was deteriorated.
10. The Ops have discharged the patient from time to time but was again admitted on the same day without explaining sufficient reasons. When the patient was discharged on 21.4.2013, in the hospital course, it has been mentioned that the patient is being Consumer Complaint No. 228 of 2014 13 discharged in a satisfactory condition. He was again admitted on 21.4.2013 vide discharge summary Ex. Op-6 and in the chief complaints and brief history, it was mentioned as under:-
"Patient is a k/c/o Hypertension, Type 2 diabetes mellitus, COPD, now presented complaint of weakness on lower limb."
These were already being faced by the patient and the counsel for the Ops as well as Doctor was unable to explain what was level of their satisfaction and what were the reasons to discharge, in case the patient was to be again re-admitted on the same day. On 23.4.2013, it has been again mentioned that the patient is being discharged in a satisfactory condition, however, while discharge summary (Ex. Op-9), the complainant was again admitted on 23.4.2013 with complaints as under:-
"Patient is a k/c/o Hypertension, Type 2 diabetes mellitus, COPD, now presented complaint of weakness on lower limb."
Weakness on the right upper limb and still the patient was suffering from motor power of lower limb and after admission upto 27.6.2013 they had given the treatment for that. They had given the treatment which is clear from the hospital course because on 27.4.2013 they had gone for another surgery and after that they resorted to conservative management, therefore, even the complaint and brief history of the patient was not properly recorded by the Ops and they have not been able to explain what was the reasons of his discharge on 27.6.2014 in a satisfactory condition. In case the patient was to be readmitted on the same day. Apart from the physiotherapy record, again day to day treatment and what steps were taken for day to day Consumer Complaint No. 228 of 2014 14 treatment have not been placed on the record for the reasons best known to the Ops. The patient was again admitted on 31.7.2013 to 4.9.2013 vide discharge summary Ex. Op-12 and during that period similar treatment was given to the patient. The patient could not improve much, therefore, he got discharge from Op Hospital and then he was got admitted with Indian Spinal Injury Centre, New Delhi on 5.9.2013 vide OPD card No. 38559. Apart from the treatment record, he has placed on the record their Physiotherapy System. It has been alleged in the complaint that their main stress was on Physiotherapy and after undergoing Physiotherapy, he was able to gain motor power on lower limbs but even then his disability is upto 75% as per the disability certificate Ex. C-8. In case the hospital was not having specialists/Physiotherapy System then they should have referred the patient to some other hospital. The counsel for the complainant has referred to the judgment of the Hon'ble National Commission reported in 2015(3) CPR 528 "Dr. Kapil Kulshrestha versus Om Prakash & 2 Ors.". In that case, the complainant had three surgeries, despite that his problem remained unsolved and wound did not heel and pus kept coming. The cryptic document does not even mention the surgery performed on the patient and discharge summary does not show condition of the wound at that time. It was held a case of medical negligence. He has referred to another judgment 2007(1) CPJ 125 "Paramjit Singh Grewal (Dr.) and anr. Versus Charanjit Singh Chawla". In that case, it was observed by the Hon'ble National Commission that not maintaining proper record of treatment given to the patient, amounts to deficiency in service. Here in this case, the Consumer Complaint No. 228 of 2014 15 complainant had written a letter dated 24.12.2014 to Op Hospital to supply all medical record pertaining to his admission from 4.3.2013 to 21.4.2013, 21.4.2013 to 23.4.2013 and 23.4.2013 to 27.6.2013 and then 31.7.2013 to 4.9.2013 and they replied the letter vide letter dated 2.1.2015 stating that admission record alongwith discharge record has been given to son of the complainant and in case the patient requires more documents then he can have the same from MRD, therefore, despite demanding all the documents, they provided only admission and discharge record and other record was not supplied to him. Patient again wrote a letter dated 17.1.2015 (Ex. Op-
15) and similar reply was given on 30.1.2015, therefore, despite demand the entire medical record was not given by the Ops. Even during the trial before this Commission, Ops have placed on the record, just discharge summaries and Physiotherapy record, otherwise, daily progress notes of the patient given to the patient has not been produced on the record. Withholding of the vital documents gives an adverse inference against Ops and amounts to deficiency in service in view of the judgment relied upon by the counsel for the complainant i.e. "Dr. Kapil Kulshrestha versus Om Prakash & 2 Ors." (supra) and "Paramjit Singh Grewal (Dr.) and anr. Versus Charanjit Singh Chawla" (supra). These judgments were not rebutted by the counsel for the Ops. He has referred to "Martin F.D'Souza Vs. Mohd. Ishfaq" (2009) 2 RCR (Cri.) 64 and "Bolam Vs. Friern Hospital Management Committed", 1957 1 WLR 582 wherein it has been observed how the medical negligence is to be determined. For reference, it is referred as under:-
Consumer Complaint No. 228 of 2014 16
"41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others Vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade."
No doubt that in case two procedures are available then the Doctor could opt for any of them. We do not say that offer of surgery amounts to medical negligence but during the procedure of surgery, the Doctor has caused damage to the motor power of the lower limb, which he has not been explained how it happened and what type of efforts were made by them to overcome it. No doubt in the second surgery, they have been able to control urine bladder and bowel but they were unable to cure the motor power of lower limbs affected in the procedure followed by Op No. 2. No doubt that it takes time to recover the spine problem but atleast Op Hospital are explained how it happened. Then they had been discharging the patient from time to time and readmitting the patient again on the same day as referred above. The notes given in the discharge summary that the patient is being discharged in a satisfactory condition. In case the patient was Consumer Complaint No. 228 of 2014 17 readmitted on the same day then what is the level of satisfaction. The counsel for the Op was unable to tell how the patient was responding satisfactorily in case his readmission was required. Except the discharge summary, other medical record has been withheld by the Ops. Therefore, we are of the opinion that Ops have committed medical negligence in giving the treatment to the patient and deficiency in services by not providing all the treatment record to the patient from the date of admission and not producing the same before this Commission during the trial.
11. With regard to the amount of compensation in para No. 9 of the complaint, it has been referred that a sum of Rs. 10,95,520/- was spent by him on the treatment in Op Hospital, Rs. 2,83,963/- in Spinal Hospital and fee paid to Indian Spinal Injuries Centre Rs. 64,338/-. So far as the treatment of the complainant in Indian Spinal Centre is concerned, he has not alleged any negligence, rather, his health condition had improved after taking treatment in this hospital and he has demanded miscellaneous expenses for transport, diet etc, and compensation, in all Rs. 85,89,731/-, which is on the higher side. Moreover, the compensation is to be determined on the basis of deficiency in service on the part of Ops, therefore, we are of the opinion that in case a sum of Rs. 20,00,000/- is awarded to the complainant, it will meet the justice. Accordingly, we allow the complaint with a direction to the Ops to pay lumpsum compensation of Rs. 20,00,000/- to the complainant within 45 days from the receipt of certified copy of the order, failing which they will be liable to pay Consumer Complaint No. 228 of 2014 18 interest @ 9% p.a. from the date of passing the order till the date of payment.
12. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
13. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
February 02, 2017. (Surinder Pal Kaur)
as Member