National Consumer Disputes Redressal
Sandeep Kumar Srivastava vs Narayan Sewa Sansthan & Ors. on 16 February, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 192 OF 2002 1. SANDEEP KUMAR SRIVASTAVA S/O. LATE SRI OM PRAKSH SRIVASTAVA R/O. 121 THERI BAZAR RAKABGANJ LUCKNOW - 226 003 ...........Complainant(s) Versus 1. NARAYAN SEWA SANSTHAN & ORS. 481 HIRAN MAGRI SECTOR NO. 04 UDAIPUR RAJASTAN THROUGH ITS SECRETARY N/A ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Ms. Sakshi Kakkar, Advocate For the Opp.Party : Mr. Chetan Lokur, Advocate
Dated : 16 Feb 2016 ORDER
DR. S.M. KANTIKAR, MEMBER
Alexander Pope's words- "Hope springs eternal in the human breast" does not just encompass one single individual but instead is a concise treatise on the human condition. People will always be optimistic and think that something better is coming. We normally mean it is human nature to Top of Form
be hopeful, believe in eternal life, fear for the worst.
Complaint:
1.The complainant, Mr. Sandeep Kumar Srivastava (in short referred as Sandeep/patient) is a patient of poliomyelitis, since the age of 11 months. Due to his handicapped condition, he was having crouching gate, sitting crossed legs and squatting position. He completed his education in electronics repairs, started the shop in December, 1999 and was earning more than Rs. 10,000/- per month, before undergoing his operation. Prior to operation, he had adequate flexion in both knees by which he used to manage his daily activities. He was leading a satisfied and comfortable life, despite his handicapped position. In 1993, he was certified as permanent disability of 60%. On 15.11.1999, the complainant approached OP1- Sansthan, after seeing alluring advertisements in the newspaper and TV. Therefore, the complainant was tempted to approach Narayan Sewa Sansthan for improvement in his polio status. He underwent two operations on 17.11.1999 and 30.12.1999 at Narayan Sewa Sansthan, Udaipur (OP1) (herein referred to as Sansthan). It was referred by Dr. Vipin Bakshi, OP2. Prior to that, the patient consulted an Orthopedician, in Lucknow, who cautioned him against undergoing any surgical treatment for his handicapped status. Complainant approached Dr. Vipin C. Bakshi (OP2) for his treatment. After examination, OP 2 assured of fruitful and positive results in his case. It was also assured to the complainant, that he will be able to stand and walk on both his legs, with the help of crutches and callipers, initially during the treatment and, thereafter, he will be able to walk on his own legs without any support. (Annexure 2, 3 and 4).
2. The complainant also submitted that instead of offering him pre medical aid as earlier promised, he was charged for everything, excluding meals. It was unethical whereby the receipts were given as a donation to the Sansthan. (Annexure No. 7 to 13). On 17.11.1999, 1st operation was performed. That time two surgeries were carried on, one on the left knee and one on left hip. Thereafter, second surgery was performed on 30.12.1999, during that two major surgeries were conducted on both knees. OP performed Medial Supracondylar Osteotomy. Thereafter, till 27.03.2000, patient was under treatment at OP1. The POP (Plaster of Paris) cast was removed from both the legs. OP 2 suggested various exercises, including wax bath for regaining flexion in both knees. Patient took treatment and did regular exercise from 28.03.2000 to 30.05.2000. Shockingly, there was no improvement in the flexion of right knee. Therefore, complainant alleged that in spite of conducting two major surgeries on the right knee, it was remained in bent position. On the other hand, OP2 straightened the left knee by three major operations, including osteotomy, the patient lost complete flexion of left knee. Therefore, the complainant suffered painful episodes during walking on crutches and callipers i.e. right lower limb remaining bent at the knee and the left lower limb go straightened loosing flexion at knee. It was not possible even after discharge. Therefore, complainant alleged that Dr. Bakshi (OP2) committed gross negligence during the surgery, he made false assurances for making him walk like a normal person. It is further submitted that after removal of plaster, it was brought to the notice of OP3 about the loss of flexion in his left knee, but OP did not attempt any corrected steps to restore the lost flexion. He advised him to go home and exercise for at least one year and promised to conduct a minor operation, again, if flexion is not restored. In this way, OP2 consoled him. The complainant returned back to Lucknow in June, 2000, continued the exercises as suggested, but there was, no improvement. He approached few orthopaedic surgeons in Lucknow. They opined that his case has been totally spoiled beyond repair (Annexure 25-29). Thereafter, on 11.09.2001 with great efforts, the patient got appointment of OP2 Dr. Bakshi. The OP-2 did not pay any attention to the X-Rays and deformities which patient suffered along with non-bending of left knee. On perusal of X-Ray, he gave a false report (Annexure 15 & 16) that there is "0 to 70o" flexion in his left knee. X-Ray shows good joint space and is a symptomatic. The OP2 expressed his inability to do anything because he removed 1cm bone from the left knee. He also advised the complainant to believe on God, for his welfare. Thus, it was an inhuman treatment. The patient informed about it to Mr. K.C. Aggarwal at OP-1, but instead of helping him, he rebuffed. K.C.Agrawal threatened him about not to take any legal action, otherwise, he would have to face dire consequences and even threat to his life. Therefore, feeling unsafe, the patient lodged a complaint, seeking protection, to the District Magistrate, Udaipur (Annexure 17). Thereafter, the complainant made several complaints with Senior Government Authority, Human Right Commission for seeking justice (Annexure 18 to 22). The Disability Board at Lucknow reported that, his disability increased, he became permanently physically handicapped with disability more than 90% (Annexure 24) which was only 60 % before the operation. Therefore, those deformities are due to the faulty surgeries performed by OP2. He consulted few orthopaedic surgeons at Lucknow viz Dr. S.K. Singh, Dr. S.A.Kidwai, Dr. Sunil Malhotra Rehabilitation Centre, Balram Hospital etc. for his further treatment but everyone opined that, no hopes for correction or improvement. (Annexure No. 25 to 32). The complainant received directions from the Government of Rajasthan to file a suit for compensation before appropriate Court. Therefore, the complainant filed this complaint in May, 2002 before this Commission and prayed for total compensation of Rs. 50,01,000/- under different heads.
Defense:
3. OP 1 and 2 filed their reply and respective affidavits of evidence. Whenever the complainant approached the opposite parties, he was duly attended to by the OPs. Complainant was examined by OP-2 at K.D.M. Hospital, on five occasions, without demanding consultation fee, but once only, on his own, paid the fee and obtained a receipt. It was his malicious and mala fide intention to use it against the opposite parties.
4. The OP-2 submitted that, on examination, it was diagnosed that the Complainant had a severe lumber lordosis, fixed flexion, and abduction deformity of hips, lefts, hips 60o, right hip 60o, fixed flexion deformity of left knee 140o, with valgus 30o and fixed external rotation of left leg. Gross multiplaner instability of the left knee, right knee, fixed flexion deformity 90o, further flexion full, both ankles and feet flail. X-ray of the left knee showed lateral and posterior sub-luxation of tibia on femur, with totally dislocated patella, laterally. Large medial femoral condyle. Lower limb muscle power was 0o to grade 1. A copy of the muscle chart of the patient is marked as Exhibit RW1/2. Complete posterior soft tissue release of left knee & steinmanpin skeletal traction was first performed on 17/11/1999. In 6 weeks' time with traction and surgery significant improvement of residual deformity of left knee and no neurovascular complication. Hence , the patient was informed about the operation of left medical suporacondylar osteotomy with removal skeletal traction for residual deformity of left knee. The complainant was informed about the procedures that were to be carried out, at every stage.
5. On 30.12.1999, Left medial superacondylar wedge Osteotomy was performed for residual deformity and full length padded plaster in corrected position was applied. Complainant's left knee achieved stable, painless movement from 0 to 70o, with centralized kneecap (Patella) and fully weight bearing joint. This was in contrast to totally dislocated kneecap, and left knee joint with fixed Flexion 140o to 180o which was laboriously crouching prior to the operation. The complainant could walk painlessly for three hours with crutches and callipers. Therefore, it was a baseless allegation that the complainant's knee stopped bending after the operation which was fully flexible prior to the said operation. The Complainant however did not exercise regularly, as per advice.
6. The OP-2 submitted further, that the Complainant, insisted for the surgery, accordingly "Special Consent" letter was taken, wherein it was stated that;
No guarantee can be given for anything, including failure of surgeries and complications of surgeries.
You will have to walk on two crutched and two full length calliper for the rest of the life.
A copy of the said consent letter is marked as Exhibit RW1/3.
7. The OP-2 denied about negligence in the treatment of said patient. Regarding the certificate of disability (60%) produced by the Complainant dates back to 27.12.1989, whereas, the Complainant visited the OPs in 1999. In a span of 10 years, the deformities gradually worsened and his mobility came to the stage, where his life was totally bound to wheel chair. Therefore, at the time, when he approached and got himself operated at the Sansthan by OP-2, is of no consequence and highly misleading.
Submissions and findings:
8. The learned counsel for OPs Mr. Chetan Lokur, vehemently argued and submitted that on 17.11.99, under anaesthesia, two operations were performed by OP-2, on the Complainant, first one, there was a complete posterior lateral release of the left knee and the Sauters release of the left hip, thereafter the two were straightened with the help of Steinman pin traction. Gradually, an increase in weight and adjustment of skeletal traction was made for about 6 weeks. 60o of fixed flexion of left hip and 140o of fixed flexion of left knee was corrected; complete correction of left hip, 110o correction of left knee and external rotation deformity was practically corrected. On 30.12.1999, complete posterior-medial and lateral release of right knee was performed and two-pin skeletal traction applied. Right hip contracture was 30o under anaesthesia, hence only traction was kept. On the same day itself, left medial superacondylar wedge osteotomy was performed and full length padded plaster in corrected position was applied, after removal of skeletal traction pins. It is further stated that no operative and post-operative complications were faced after these procedures. There was no vascular insult, neuralgias and pin and wound sepsis. The gradual increase in traction and adjustments fully corrected the right knee and right hip contractures.
9. The counsel for OP brought our attention to the medical literature from Campbell's Operative Orthopaedics, that the orthopaedic treatment in the case of poliomyelitis, includes osteotomies to correct deformity or transfer the range of motion to a more useful, are beneficial, but only at or near skeletal maturity, or the deformity will promptly recur with growth.
Counsel further explained about Soutters release. The relevant para from the literature is reproduced as below;
"Prevention of Correction of Deformities: The main emphasis is on prevention of deformity. This is done by splinting the paralysed part in such a way that the effect of muscle imbalance and gravity is negated (details in Chapter - 11). An operation may sometimes be required to prevent the deformity. For example, in a foot with severe muscle imbalance between opposite group of muscles, a tendon-transfer operation is done. This produces a more balanced foot, hence less possibility of deformity. Commonly performed operation for correction of deformities are as follows:
For hip (flex.-abd.-ext. rot.) deformity - Soutters' release For knee flexion deformity - Wilson's release.
For equinus deformity of the ankle -- tendo-achilles lengthening.
For cavus deformity of the foot - Steindler's release."
10. After thoughtful consideration, we need to find out "Whether Surgery was necessary for this neglected polio patient?"
We have perused the physical disability evaluation made by the Medical Board at department of Orthopaedic surgery "ERA's Lucknow Medical College & Hospital". The opinion is reproduced as below:
"We feel the surgery of both lower limbs was inappropriately planned, improperly explained with inadvertent overestimation of expected results. He was a patient of Post Polio Residual Paralysis of both lower limbs, who was having practically no power in both lower limbs since early childhood. He had compensated for his deformity by a crouching gait.
The Surgery was not required and not indicated. The patient cannot revert to his crouching gait like before operation."
11. We further perused a book titled "POLIOMYELITIS-A GUIDE FOR DEVELOPING COUNTRIES" authored by Dr. L. Huckstep, describes the procedures for corrective surgery of poliomyelitis. It is known as Bible for polio treatment and is followed worldwide. The operations performed on the complainant were in complete accord with the procedure described in the said book. The contraindications for operations are discussed. The relevant extracts from the said book (Exhibit RW 1/5) are reproduced as below:
Contraindications to Operation in Adults
1. Where one or both arms are weak in addition to both legs being severely paralysed, i.e. the use of crutches will be difficult or impossible. Fairly strong arms, particularly the triceps, are important if the patient is to progress upright. Again, as in the case of children, a patient with determination may manage surprisingly well with limited weakness in one or both arms provided his trunk is strong.
2. When there is only a minimal degree of contracture and the patient is managing to walk well.
3. When there is severe contracture of both knees and the patient earns his livelihood on the ground and is happy to continue doing so.
4. Where operative facilities are poor and contractures severe.
In an adult with polio contractures it is essential to consider the patient as a whole and not only the contracture. An adult patient who can crawl fast on the ground and earn his own living is often better off than one who can only progress very slowly upright with stiff knees and two crutches. The latter may look better, and almost certainly feels better. He may have difficulty in planting crops in an agricultural community, which may be his only means of livelihood. He may therefore die of starvation and neglect following well-meaning operative intervention.
Serious consideration must be given to the future occupation and mobility before bilateral severe contractures are straightened.
A simple wheelchair may be far better method of progression for long distances, while pads on knees and hands may allow fast local progression, and mobility indoors.
Isolated Hip Contractures of less than 30o No treatment is required for these when there are no other contractures. The stability of the hip is often improved, and shortening compensated for, if there is a small degree of abduction / flexion contracture.
Discussion and Comments:
12. Considering Para 9 and10 (supra), it is clear that, patient's condition was not-correctable by surgery. It appears that, the OP-2 performed the operation, unnecessarily, but the OP doctor operated the patient for release of the ,contractures to reduce patient's disability. It is pertinent to note that, for the said surgery, specialized consent was taken; certainly it was informed consent. The pros and cons were made aware to the patient and thereafter only the patient gave specialised consent. Therefore, we are of considered view that, OP-2 acted in the best interest of the patient. The Poliomyelitis itself is a paralytic disease and there are remote chances of cure, but surgical interventions needed and will prevent deformities and co-morbidities in the patient. Therefore, it was neither negligence in surgical procedure nor deficiency.
13. Polio surgery has, since time immemorial, presented inexorable treatment difficulties. Being a complex condition affecting different sufferers to a different depth and width, it causes a wide gamut of complex disability and making it virtually impossible to evolve specific straitjacket formulas for its infinite combinations and presentations. Though there are recommended procedures, they can, at best, be guidelines and cannot, by any stretch, be absolute to be set, in stone. Medicine is an inexact science and often needs modification to suit the existing conditions at hand, in a particular patient. Likewise, though, some outcomes can be safely predicted and clinically achievable, yet every eventuality, cannot always be automatically attributed to negligence on the part of the treating medical personnel.
14. In the instant case, no doubt, that as per chronology, this patient had in the past, approached an orthopaedic surgeon Dr. V.P. Sharma in Lucknow, in regard to his treatment. Even considering that it is true that Dr. Sharma gave clinical advice or opinion against undertaking any surgical procedures, it is an admitted fact that subsequently, the patient went to the Sansthan(OP-1) and got operated from Dr. Vipin Baxi (OP2).
It is pertinent to note that, if the opinion given in Lucknow by Dr. Sharma was final and binding, also it was so firmly believed/ accepted by this patient, there was no reason for the patient to again approach another doctor for another opinion, knowing fully well that a second opinion could be either in agreement, be different or even radically opposite to earlier opinions. The very fact of approaching for a second opinion, confirms the fact that the patient was not fully satisfied with the original recommendation, therefore, he was keen to explore further avenues for improvement of his condition. Such thinking on the part of the patient can hardly be faulted because "Hope springs eternal in human breast", in constant quest for improvement, yet, it is also an admitted fact that the patient subsequently accepted a second opinion from OP-2 and also subjected himself to the recommended surgical procedures. Though, it is unfortunate that his condition did not subsequently improve but in fact, deteriorated, a variance of outcome or an undesirable result, cannot be automatically classed as negligence. It is also well known that some patients seek multiple medical opinions from several doctors - consciously or subconsciously, trying to finally source a doctor, who gives an opinion that the patient wants to hear. A patient so inclined, will seek subsequent opinions, until he gets an opinion resonating with that of his own wish and desire.
15. As such, the pre-operative condition, is clear from the pre-operative disability certificate that the patient was already peaking at 60% and that the post-operative certificate evaluated it at 90 %. Without undermining in any way, the suffering and the disability suffered by this patient, it would be serious and condemning for the doctor if loosely it is termed, that, a doctor by operating on the patient caused 90 % disability, if it is not revealed, that a previous disability of 60% already existed. This changes perception. No doctor will wish that his patient's condition should deteriorate, but a doctor is in constant battle with the elements to improve the patient's life and limb, unless it can be proved beyond doubt that the doctor did something, or omitted to do something in gross violation of medical principles or ethics, which a prudent medical professional would have followed, in a similar setting. Such a situation can hardly be said to exist in the instant case.
16. It would not be out of context here to comment upon those various philanthropic organisations. In the instant case, the OP/Sansthan undertakes to provide medical treatment under various conditions undertaken by using the services of interested doctors by the way of "Camps". The medical camps were popular in the past when resources were low; expertise was limited to select few doctors and the aim being that maximum benefits accrue to the number of patients in the shortest time. The camps are now relics of the past, and now need to be consigned to history books. Even with the noblest of intentions behind such camps, it is well known that quantity destroys quality. It is well-nigh difficult or even impossible to properly evaluate patients or carry out appropriate preoperative evaluation and to obtain satisfactory informed consent from patients. Several camps, in the past, have resulted in well-known disasters with sufferers losing sight, limb and sometimes, even life, due to infection, negligence or a combination of factors. Camp-style medical treatments were the norms, maybe even a necessity, several decades ago, but with changing norms, improvements in healthcare, increased patient awareness, heightened patient expectations and mandatory medico-legal responsibilities for medical professionals, a camp-style surgical approach, has all the ingredients to go, horribly awry. Furthermore, patients flocking to such camps, often have unrealistic expectations about their outcomes, having come from far and wide by word of mouth publicity. There is often lack of security, confidentiality and privacy, during such camps. With due respect to genuine organisations, doing honest work, we are constrained to point out here that not every camp has completely noble ideals. Some organisations/doctors seek instant publicity, while some crave newer patient bases, some earning accolades for its members for grants or elections, yet, others serving to fritter money and resources and not altogether altruistic intent.
17. To opt for surgery, based on a subsequent opinion and then in the event of complications, to cry wolf and point out an earlier contrasting opinion, which the patient has himself disregarded, is inappropriate. It is to be noted that the patient/parents sought a second opinion, subjecting him to surgery, knowing fully well that there might be no improvement or even deterioration. Though this action, in itself, cannot be faulted, yet the action of relying on a particular earlier opinion by hindsight is flawed and cannot be allowed, unless, there, the treatment subsequently given was not in keeping with recommended norms or standards of medicine or ethics. By accepting surgical treatment and consenting for the same, the first medical opinion automatically merges in the last medical opinion and thus the original opinion retains no legal advantage for the prosecution.
18. Therefore, we are of considered view that the complainant was already, a case of neglected polio. The OPs attempted to correct the deformities and contractures to avoid further progression. We do not agree that after operation, the deformity increased. The OP2 is an experienced and competent orthopedician, who can treat such like patients. In this context, we have relied upon few judgments of Hon'ble Supreme Court and from other countries, with respect to medical negligence. In the leading case Achutrao Haribhau Khodwa& Others vs. State of Maharashtra & others, IV (1996) 2SCC 634, Hon'ble Supreme Court held;
"that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession."
In the case Maynard v. West Midlands Regional Health Authority the words of Lord President (Clyde) in Hunter vs. Hanley, 1955LT213, were referred to and quoted as under:
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as not doctor of ordinary skill would be guilty of if acting with ordinary care..."
The Court per Lord Scarman added as under:
"A doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A Court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence."
In our view, the OP2 is an experienced and competent orthopaedic surgeon, he treated the patient with his skills, it was not negligence.
19. It is vital to discuss at first blush, the solution to the problem seemed simple enough but on second thought it transpired that the entire action of OP/Sansthan, particularly that of hospital is below the belt (unfair). The Sansthan tried in vain to make bricks without straw. The Commission is not to be deceived by their lies. The Commission's duty is not to hit the high spots but to delve deep and find out the truth.
20. The Consumer Protection Act is indeed to protect a large number of consumers from exploitation, fame and power driven with the ulterior motive of good leads to devastation. The OP had no qualms (hesitation) to misrepresent that they could cure an incurable disease. It made a vain attempt to lead the gullible / helpless sick persons up the garden path in order to earn money and fame. It was not a free service, complaint paid Rs.15, 000/- . The treatment given by OP 2 was for correction of contracture and to avoid progression of deformity. We do not find negligence on the part of OP2, but, at the same time, we cannot ignore the unfair trade practice adopted by the Sansthan. In the instant case, the patient was already a case of completely neglected polio. It is also supported/ proved by the opinion of Physical disability Board. Therefore, the OP1/Sansthan is liable for unfair trade practice. In this pertinent case, the complainant was an electrician, a disabled person, earning for his livelihood. However, after the treatment from OP-1, his work ability certainly has not been improved. In our view, the complainant deserves for compensation.
21. Therefore, on the basis of forgoing discussion, we partly allow this complaint and direct the OP1 to pay Rs. 5 lacs to the complainant, within 60 days from the date of receipt of copy of this order; otherwise, it will carry interest @ 12% p.a. till its realization. However,there shall be no order as to costs.
List for compliance on 2nd May 2016.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER