State Consumer Disputes Redressal Commission
Dr Vineet Sharma vs Ms. Anu Bala on 22 August, 2023
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STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
(Additional Bench)
Appeal No. : 63 of 2023
Date of Institution : 17.04.2023
Date of Decision : 22.08.2023
Dr.Vineet Sharma, M/s Advance Hip & Knee Clinic, SCO No.82, Sector
47-D, Chandigarh. .
---Appellant.
Versus
Ms.Anu Bala wife of Sh.Sawtantar Kumar, resident of #605, Tower C-3,
(4,5,6), Nirmal Chhayya, VIP Road, Zirakpur, District SAS Nagar, Mohali,
Punjab 140603
----Respondent
Appeal under Section 41 of the Consumer Protection Act,
2019 against order dated 06.03.2023 passed by District
Consumer Disputes Redressal Commission-II, U.T.
Chandigarh in Consumer Complaint No.299/2022.
BEFORE: MRS. PADMA PANDEY, PRESIDING MEMBER
Mr.PREETINDER SINGH,MEMBER For the appellant: Sh.Navneet Jindal,Advocate For the respondent: Sh.Tikesh Kumar, Advocate PER PADMA PANDEY,PRESIDING MEMBER This appeal is directed against the order dated 06.03.2023, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (hereinafter to be referred as "the Ld. Lower Commission"), vide which, it allowed the complaint bearing No.CC/299/2022 and directed the Opposite Party in the following terms;-
"Taking into consideration the discussion above, we are of the opinion that OP doctor in the present case is found to be deficient/negligent in providing due services, which resultantly caused immense physical & mental harassment to the complainant and landed her up into the situation where she has no other option but to undergo for revision surgery to get the deformity set-right, which was developed after the operation being conducted by the OP doctor.2
Hence, the present complaint is allowed with directions to the Opposite Party to pay a compensation amount of Rs.Three lacs to the complainant for causing her immense mental, physical harassment & financial loss, along with litigation cost of Rs.20,000/-.
The above said order shall be complied with by the Opposite Party within a period of 45 days from the date of receipt of its certified copy, failing which he shall be liable to pay additional cost of Rs.25000/- apart from above relief."
2. Before the Ld. Lower Commission, it was case of the complainant (respondent herein) that she visited OP doctor(appellant herein) on 1.9.2020 with the complaint of pain in right knee and little bit pain in left knee since few months and after check-up, OP doctor told the complainant for replacement of both knees through operation costing Rs.2,70,000/-. On the assurance given by the OP doctor that after replacement of both knees, she will be alright, the complainant paid an amount of Rs.2,70,000/- by cash as well as through bank transaction (Annexure C-3). Accordingly, OP doctor got admitted the complainant in Cosmo Hospital, Sector 62, Phase 8, Mohali, Punjab on 2.9.2020 and after operation on 3.9.2020, the complainant was discharged on 7.9.2020 (Annexure C-4). After discharge from the Hospital, the Complainant strictly followed the advice of doctor and also took the medicines, as prescribed by him. It was alleged that the Complainant started having problem in her Left Knee from day one though she purchased Gym Cycle on the advice of OP doctor for doing exercise but there was no relief. It was further alleged that the complainant visited the clinic of OP many times and the O.P. on 13.11.2020, 11.12.2020 prescribed certain medicines, GYM Cycle and did X-ray which were 3 shown to the Complainant on Computer Screen and explained that her operation was perfect and the problem of pain would be solved through medicines. For about one year, the OP tried to pacify the Complainant but there was no improvement. The Complainant was suffering from continuous pain, heaviness and stiffness. The Complainant's husband sent Whatsapp messages on various dates i.e. 03.09.2021, 08.09.2021, 03.10.2021, 12.10.2021 (along with two photos) to the OP doctor but he replied once only on 08.09.2021 and blocked Whatsapp account on 19.10.2021. The OP was informed many times that Left Knee was creating problem for her and she was still suffering from Swelling & Heaviness.
3. It was further alleged that the Complainant was having continuous pain in her left knee due to Technical Error committed at the time of operation and the operation of left knee was not successful but the OP doctor did not take it seriously and again advised the Complainant to do exercise and go up & downstairs two/ three times and also to take advice of another Expert doctor. Thereafter, the complainant went to Landmark Hospital and met Dr.Vikas Goyal who personally went to Physiotherapist for checking and in his opinion, left leg seemed to be Curved to the left side little bit and advised for Doppler Test and various blood tests (Annexure C-11). Thus, in the Second opinion, it was confirmed that there was some mistake from the side of O.P doctor in planting Metal Joint in the Complainant's Left Knee and that is why she was suffering from pain since then. The Complainant also suffered huge financial loss on the part of OP, but still she did not get any relief from her left knee and has become disabled and could not do her routine work and even she could not walk and stand for a long 4 time. When this fact was brought to the notice of the OP, he did not admit his fault nor gave any response. On 14.02.2022, the Complainant went to Dr.Jatinder Singla, Sector 19-A, Chandigarh who examined her left knee and opined that her Left Knee had Valgus and advised her for Revision Operation (Annexure C-12). Even Dr.Harinder Bath, Sector 44, Chandigarh advised the Complainant for Revision Operation after 3-4 months(Annexure C-13). The Complainant also went to Dr.Atul Malhotra, ARV Hospital, Sector 21, Chandigarh for taking another opinion, who stated that the patient's Left Knee had Valgus but advised not to go for revision operation as it was complicated. However, he advised for Silicon Medical Arch Support for Left & Right Feet (Annexure C-14). The complainant also went to Orthomax Hospital, Sector 15, Panchkula (Haryana) where Dr.Shardaindu Sharma & Dr.Vivek Bhatia examined the left knee problem of the Complainant and advised for many tests. On 4.3.2022, the complainant went to Dr.Dhananjay at Aggarsain Health Care, Sector 20, Panchkula, who after examining her Left Knee opined it as 10 degree Valgus in the left Knee (Annexure C-
17). Thus, the complainant suffered pain, mental tension, physical harassment and financial loss due to the act & conduct of the OP. Hence, alleging deficiency in service and negligence on the part of the OP doctor, the complainant preferred a complaint before the Ld. Lower Commission.
4. Pursuant to issuance of notice, OP appeared and contested the complaint. In his reply, while admitting the factual matrix of the case about the performing of surgery in question , stated that he is qualified to conduct surgeries as has been done in the present case. The OP is stated to be M.S. (Ortho) from KEM Hospital, Mumbai, Fellowship 5 Trained in Joint Replacement from University of Minnesota, Minneapolis and Lenox Hill Hospital, New York (FRHKS) (USA). OP Doctor is stated to be registered with Punjab Medical Council having Regd. No.37592 issued by Authority (Annexure OP-1 & OP-2) and further stated that he had performed about 3000 knee replacements which included total knee replacements of both the knees or single knee apart from other surgeries and having total experience of many years and thus, he is competent as per law as well as is master of his own field. The complaint was stated to be bad for non-joinder of necessary party i.e. Hospital where the surgery took place i.e. COSMO Hospital, Phase-8, Mohali. It was also stated that the present complaint was liable to be dismissed for want of territorial jurisdiction as the complainant's address on Aadhaar card was of Mohali, the surgery was conducted at Cosmo Hospital Mohali and payment was also made at Cosmo Hospital Mohali, so no cause of action arose within the territorial jurisdiction of the District Commission at Chandigarh. It was asserted that the complainant/patient came to the clinic of the OP with problem in her knees; she was advised total knee replacements in both the legs; the surgery was conducted as per settled practice and both the knees were replaced completely; the patient was discharged after 4 days without any complications and she was advised physiotherapy and follow-ups. The complainant went home walking comfortably without any complaints and she followed up till May, 2021 and at that time she was walking comfortably. It was further asserted that the complainant's husband never complained of any knee pain or any such problem, rather he wrote a Google review on 18.2.2018 i.e. after 6 months of surgery where her husband clearly mentioned that 6 she had no complaints and was fully recovered and was satisfied with the treatment (Annexure OP-3).
5. It was further stated in the reply that in total knee replacement, the whole knee is replaced which causes little discomfort in the starting but when the body gets used to it, the patient forgets about it. It was further stated that after total knee replacement is done, the patient is advised to go through exercises on regular basis to adjust the external fixture with day to day exercise. The patient was advised to avoid heavy loads for few months and that there was initial discomfort in some patients but that gradually goes with time. The complainant has concealed her x-rays done post treatment and other test reports which would show that her knees were as per medical standards when she was discharged. It was further asserted that the complainant visited many doctors and placed on record their respective medical advices but none of the medical opinions supported the version of the complainant that the operation was not done in correct manner and none of the reports suggested that the method used in operation was not correct or some other method not acceptable in medical jurisprudence was used.
6. As regards to the allegation of stiffness, it was further stated in the reply that there could not be any stiffness and false allegations have been levelled. The prescription Annexure C-15- a finding given by the competent doctor says that there was movement of 0 degree to 120 degree which could not be there in case of stiffness. Regarding pain, it was stated that in the WhatsApp Chat complainant's husband wrote in message (Annexure C-7 at page 27) that there was no pain. In various medical advices sought, there was no history of pain 7 recorded by any doctor except Annexure C-14 where it was mentioned so. It was further stated that even if there was element of pain then that also could be caused due to disk (as there is finding in MRI "Left traversing nerve root impingement is seen") which was major cause of pain in leg. The complainant was having low vitamin D levels which could cause stiffness and bone pain. There could be other factors which may be attributed to old age, some stress or something hit on the knee. As regards Valgus, there are again different versions placed on record without any conclusion as in Annexure C-14 Valgus Stress Test shown Positive (for Medial Collateral Ligament (MCL)) and Anterior Drawer Test (for Anterior Cruciate ligament (ACL)) which is negative; these tests are done manually for checking the ligament supporting the knees. Test report positive means there was issue with regard to ligament and negative means there was no such issue. It was further stated that the positive valgus stress test pointed that one of the ligaments supporting the knee was having problem and this finding was unrelated to the knee replacement and that the problem may be due to rupture of ligament which might be result of some over stress or fall or hit on the knee. It was pleaded that the MCL ligament was absolutely fine at the time of surgery and discharge and till the last follow up with OP. It is further pleaded that the patient was perfectly fine till May, 2021 when she followed up with OP and the possibility of subsequent fall or some other reasons for valgus could not be ruled out. It was further stated that the complainant has concealed her previous X-rays and reports which were done after the operation. It was further stated that it was obligatory on the part of the complainant to prove specific instances of medical negligence but in the present case none of the documents or assertions 8 in the complaint proves that there was negligence on the part of the OP and that various studies suggest that after Knee replacement operations people remain dissatisfied (between 15-20 %) for one reason or the other and there are various facts which includes old age as well; the subsequent events like proper exercise and due care plays an important role post operation. Thus, it was pleaded that there was no deficiency in service or negligence on the part of the OP and a prayer was made for dismissal of the complaint.
7. On appraisal of the complaint, and the evidence adduced on record, Ld. Lower Commission allowed the complaint of the respondent/ Complainant, as noted in the opening para of this order.
8. Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant /Opposite Party.
9. We have heard Counsel for parties, and have gone through the evidence and record of the case with utmost care and circumspection.
10. It is case of the appellant in appeal that the Ld. Lower Commission did not appreciate Annexure OP -3, Google review given by the husband of the complainant after about six months of the surgery showing no problem by that time and appreciating the service provided by the appellant and his team during and after surgery on the respondent. The deformity shown in the pictures is quite obvious and cannot be missed by anyone and the patient never complained about it or noticed or mentioned about it till May,2021 nor it is mentioned in discharge summary or any follow up notes. This was actually never 9 presented after surgery or till the patient followed up with the appellant. This was a late development due to MCL Ligament issue which was also observed by doctors to whom the respondent consulted after 1.5 years. It was contended that the medical negligence has to be seen on the date when the surgery was done. The photographs cannot be relied upon to relate back to the surgery conducted a year back especially when the Varus position existed. The Valgus position was due to ligament supporting the knee. Thus, the finding of the Ld. Lower Commission by giving comparison of Varus position which was pathological and was present before surgery with Valgus position, holding that it was due to positioning of the artificial knee was totally unfounded. Such a comparison of two different terminologies used in medical field which has totally opposite meaning is liable to be set aside. It was also contended on behalf of the appellant that there was no expert evidence to prove medical negligence on the part of the appellant and that the compensation granted to the respondent is on the higher side
11. A perusal of the discharge summary placed on record by the respondent reveals that the respondent visited the appellant with history of pain in both the knees since 15 years & upon local examination by the appellant , it was recorded as under:-
"B/L knees 10 degree varus, synovitis+, PF- Crepitus+"
This diagnosis by the appellant depicts that the condition of the knees of the complainant was of 10 degree varus which means that besides pain, some deformity was also there, for the correction of which the surgery was suggested by the appellant, to which the respondent 10 agreed with the understanding & assurance given by the doctor that her knees problem would be resolved after TKR (total knee replacement)of both the knees.
12. In Google review, husband of the respondent only shared his experience about the treatment given by the Doctor. He also made mention that the doctor called his wife at his clinic many times. It was also written that after 5 ½ months of the operation, still the patient was visiting the doctor till 18.2.2021. It is contended on behalf of the respondent that after surgery, the patient has to visit repeatedly and the husband of the respondent was appreciating the work of the appellant under the impression that she will get fully recovered under his care. Even otherwise, Google review given by the husband of the respondent does not exonerate the appellant from the allegation of deficiency in service and negligence in performing the surgery on the respondent.
13. For holding the appellant deficient in providing service, the Ld. Lower Commission rightly observed as under ;
"As per the medical literature placed on record by the OP doctor, even if the complainant's left leg/knee was aligned to Valgus position electively while surgery, the patient/complainant should not have suffered any difficulty due to that positioning which is not the case. The patient/complainant suffered a lot and is still in pain & crippled for life, if not given the corrective surgery.
Also the medical literature placed on record by the OP doctor nowhere suggests/hints that after knee replacement, deformity, as developed in the present case in left knee of the complainant, is a known or rare complication, which may occur in the patient having rheumatoid arthritis within such short span 11 of time. There is also no recording on the file that the patient/complainant ever suffered any fall or hit. Had it been the position, it would have been recorded by the OP doctor during the prolonged follow-up period and by any other orthopaedic doctors to whom the complainant visited after the operation.
It is thus quite evident on record & reiterated that due to the mal-alignment of the left knee/leg during the surgery, the patient/complainant has suffered immensely and is crippled for life unless she undergoes revision/correction surgery. We are of the concerted view that deficient 'service' has been rendered by the OP doctor, which duly falls under the purview of The Consumer Protection Act."
14. As regards expert opinion, the Ld. Lower Commission observed that in the given case the principle of Res Ipsa Loquitur is applicable. Thus, while placing reliance upon the judgment of The Hon'ble Apex Court in M/S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia, Civil Appeal No.7858 of 1997, decided on 25.3.1998, and V.Kishan Rao V. Nikhil Super Speciality Hospital & Another, Civil Appeal No.2641 of 2010, decided on 8.3.2010, reported [2010] 5 S.C.R. 1, it rightly observed that before forming an opinion that expert evidence is necessary, the Fora under the Act must come to the conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the Members of the Fora without the assistance of expert opinion. However, where negligence is evident & obvious in such cases the principle of Res Ipsa Loquitur is applicable and in that eventuality the complainant does not have to prove anything as the things prove itself and in such cases, it is for the opposite party to prove that he has taken case and done his duty to repeal the charges of negligence.
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15. While granting compensation of Rs.3.00 Lakhs to the respondent, the Ld. Lower Commission observed that due to the mal- alignment of the left knee/leg during the surgery, the patient/complainant has suffered immensely and is crippled for life unless she undergoes revision/correction surgery. Thus, to get the deformity set-right, which was developed after the operation conducted by the appellant, the respondent has no other option but to undergo for revision surgery. Though the mental agony/harassment and physical pain suffered by the respondent cannot be fathom out in monetary terms, yet the amount awarded as compensation appears to be justified and not on the higher side.
16. In view of the above, the order passed by the Ld. Lower Commission, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting interference of this Commission.
17. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the Ld. Lower Commission is upheld.
18. Certified copies of this order be sent to the parties free of charge.
19. The file be consigned to Record Room, after completion.
(PADMA PANDEY) PRESIDING MEMBER PREETINDER SINGH) MEMBER Pronounced 22.08.2023 Js 13 STATE CONSUMER DISPUTES REDRESSAL COMMISSION U.T. CHANDIGARH (Additional Bench) A/63/2023 Dr.Vineet Sharma Vs Ms.Anu Bala BEFORE: MRS. PADMA PANDEY, PRESIDING MEMBER Mr.PREETINDER SINGH,MEMBER For the appellant: Sh.Navneet Jindal,Advocate For the respondent: Sh.Tikesh Kumar, Advocate Dated, the 22nd August,2023 ORDER Vide our detailed order of even date, recorded separately, this Appeal stands dismissed and consequently the impugned order of the Ld. Lower Commission has been upheld.
After compliance, file be consigned to record room.
(PADMA PANDEY) PRESIDING MEMBER (PREETINDER SINGH) MEMBER Js 14