State Consumer Disputes Redressal Commission
Goldy Trehan vs Paarvti Devi Hospital on 5 January, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.83 of 2011
Date of Institution: 20.10.2011.
Date of Decision: 05.01.2016.
Mrs. Goldy Trehan wife of Munish Trehan age 25 years, resident of
5- Hira Nagar, Ferozepur City.
.....Complainant.
Versus
1. Smt. Paarvati Devi Hospital, A-Block, Ranjit Avenue, Amritsar
through its Director/Administrator.
2. Dr. Guriqbal Singh Chinna, Chhina Orthopaedics, 436, Green
Avenue, Amritsar-143001.
3. Reliance General Insurance Co. Ltd., SCO 122, Ranjit Avenue,
Opp. Amritsar Improvement Trust Complex, Amritsar, through
its Branch Manager.
4. The New India Assurance Co. Ltd., 80, Court Road, Amritsar,
through its Branch Manager.
5. United India Insurance Co. Ltd., 54 Janpath, Cannaught Place,
New Delhi, through its Branch Manager.
....Opposite Parties
Consumer complaint under Section
17(1)(a)(i) of Consumer Protection Act,
1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri H.S. Guram, Member Present:-
For the complainant : Ms. Goldy Trehan, in person For opposite parties no.1&2 : Sh. J.S. Dhaliwal, Advocate For opposite party no.3 : Sh. R.S. Joshi, Advocate For opposite party no.4 : Sh. Vinod Chaudhri, Advocate For opposite party no.5 : Ex-parte ................................................ J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Complainant Mrs. Goldy Trehan has instituted this complaint under Section 17(1) (a) (i) of Consumer Protection Act Consumer Complaint No.83 of 2011 2 1986 (in short "the Act") against the opposite parties (to be referred as OPs) on the averments that she experienced slight pain while walking on account of restricted movement of her left ankle. She approached the clinic of OP no.3 on 02.04.2011, who has been running his clinic under the name of Chhina Orthopedics, where she was examined by Dr. Joginder Pal Singh Chhina since dead and OP no.2 and it was clearly mentioned in the prescription slip that there was problem in left ankle and certain medicines were prescribed therefor, besides certain tests like ESR & total Leucocytes Count. The tests got conducted by her and X-ray of left ankle was got conducted by her on 02.04.2011 from Nijjar Scan and Diagnostic Centre, Amritsar, showed both views of the left ankle of the complainant. On examining of her X-ray reports dated 02.04.2011, the above OPs advised the complainant for operation for 'Ankle Arthrodesis' (Joint fusion) and insisted for her hospitalization therefor. She was admitted in the hospital of OP no.1 and her history sheet was prepared recording pain and swelling in her left ankle, besides difficulty in walking and restricted movement of it. The complainant was 35 years female at that time and was non-diabetic and non-tensive. It is further averred by her that she and her husband were directed to deposit of Rs.15,000/- with OP no.1 and her history sheet was prepared on 22.04.2011 by the OPs. The consent of her husband was obtained after her admission in the hospital OP no.1 wherein the relevant columns i.e. operation's title and column no.5 were left blank. On 23.04.2011, Anaesthesia was Consumer Complaint No.83 of 2011 3 administered to her and she was operated upon and on account of negligence of Dr. Joginder Pal Singh Chhina since dead and OP no.2, instead of her left ankle, which was required to be operated upon, operation was conducted on her right ankle as well and the Schanz Pins were inserted on her right ankle as well. OP no.2 was the main surgeon and Dr. Joginder Pal Singh Chhina since dead assisted him, as per the operation note dated 23.04.2011 recording that ankle arthrodesis has been operated on right ankle of the complainant also. The husband of the complainant and her relatives came to know about negligence of OP no.2 and above Dr. Joginder Pal Singh Chhina in performing operation on the right ankle and insertion of Schanz Pins therein. They protested over this matter whereupon the attending doctors tendered their apology stating that they would operate her left ankle also. OP no.2 operated upon her right ankle and inserted Schanz Pins therein. OP no.2 undertook in writing to take full responsibility for the treatment of complainant and to take future care and expenses of the treatment of complainant on 23.04.2011. The complainant was kept in the hospital of OP no.1 uptill 27.04.2011 and was discharged on 27.04.2011. Even, it was admitted in the discharge card in the column Diagnosis that problem was in her left ankle, whereas the operation has been mentioned as B/L Ankle Arthrodesis meaning thereby that both the ankles were operated upon, by the above OPs. It is further averred that Ankle Arthrodesis is performed in the cases of ankle arthritis where the patient feels pain in the ankle joint, while moving and ankle Consumer Complaint No.83 of 2011 4 arthrodesis is the procedure where the ankle joint is internally fixed with help of the nails to take the movements from the ankle joint and the same is fixed permanently. At the time of discharge, Dr. Joginder Pal Singh Chhina since dead and OP no.2 stated that surgery was performed by mistake and hence complainant needed not to make the payment of two surgeries and they would charge only for one surgery and no other amount was got deposited other than the amount which was deposited on 22.04.2011 for the operation of left ankle of the complainant. On 15.07.2011, the Schanz Pins were removed and again plaster of paris was applied and she was discharged on 16.07.2011. The complainant became completely disabled due to operation of both the ankles and insertion of plates and nails. The complainant is unable to walk, unable to climb stairs and can walk only with the help of walker or wheel chair and her ankles are unable to bear any load even the load of her body. OP no.2 and late Dr. Joginder Pal Singh Chhina wrongly conducted operation on right ankle of the complainant. When the pain persisted in the right ankle, she consulted Fortis Hospital Mohali and she was examined by Orthopedics expert on 23.09.2011 thereat. It was reported by Fortis Hospital that her left side ankle after arthrodesis is satisfactory, but right side ankle arthrodesis has failed and advised arthrodesis or ankle replacement of right ankle. The Fortis Hospital gave the rough estimate of the treatment indicating the procedure cost, anesthesia, room rent and doctors visits and so on. The complainant has been rendered permanently disabled on account of Consumer Complaint No.83 of 2011 5 negligence of OP no.2 and late Dr. Joginder Pal Singh Chhina. The complainant approached Civil Hospital and Medical Board was constituted to assess the permanent disability of the complainant, which submitted the report on 30.09.2011 assessing 65% permanent disability of the complainant, which is non-progressive in nature. The complainant leveled the allegations of negligence against the above doctors, who had not used the standard care. The complainant prayed that OPs be directed to pay Rs.75 lakhs as compensation for operating the right ankle instead of left ankle of the complainant and thereby making the complainant physically disabled. The complainant further sought the compensation of Rs.5 lakhs for future treatment cost for the right ankle arthrodesis or for replacement of right ankle, as advised by Fortis Hospital Mohali. The complainant further prayed for compensation of Rs.50,000/- for expenses spent by her on hospital charges, X-ray charges and medicine charges, besides Rs.55,000/- as costs of litigation. The complainant prayed that 18% interest be awarded on the above referred amounts to her.
2. Upon notice, OP no.1 Smt. Parvati Devi Hospital filed its written reply contending that Sunil Handa is Authorized Representative of OP no.1 on the basis of resolution dated 02.01.2012. It is averred in the written reply by OP no.1 that complainant Goldy Trehan came to OPD of Dr. Joginder Pal Singh Chhina on 02.04.2011 with the complaint of severe pain in left ankle with restricted movement of left ankle. She was examined and investigated by above Dr. Joginder Pal Singh Chhina since dead and Consumer Complaint No.83 of 2011 6 she was diagnosed to be case of degenerative arthritis following malunion of fracture of ankle since 1½ years. The complainant was having severe pain in her left ankle, which was disabling her and, thus, was unable to do her normal daily chores. The complainant was advised arthrodesis of the left ankle (Arthrodesis ankle is gold standard surgical treatment for relief of pain in the ankle having problem due to arthritis), wherein the plan was to fuse ankle joint or tibiotalar surgically. She was explained in detail the advantage and disadvantage of arthrodesis and her husband consented for the same. On investigation, her ESR alongwith TLC/DLC were found to be on higher side indicating generalized arthritis and she was advised medicines including antibiotics for 7 days. She was admitted with OP no.1 on 22.04.2011 and after examination by medical officer, her treatment record was prepared and she was found to be having pain and swelling in her left ankle and complainant gave further history of being suffering from hypertension and she was given medicines for controlling her hypertension. Her pre- anaesthesia check up was done by Dr. R.S. Waan M.D. (Anaesthesia). Her medical fitness was checked up by Dr. Y.P. Mehra, Senior Cardiologist of the hospital. The complainant was operated upon in fully equipped operation theatre of OP no.1 hospital under spinal anaesthesia, by the team of Dr. Joginder Pal Singh Chhina, MBBS, M.S.(Ortho), Senior Orthopedic Surgeon, Chief Surgeon, OP no.2 Dr. Guriqbal Singh Chhina, MBBS, D (Ortho), M.Ch (Ortho) Assistant Surgeon and Dr. R.S. Waan, MBBS, Consumer Complaint No.83 of 2011 7 M.D. (Anaesthesia) alongwith other fully qualified and competent staff. During surgery, though initial plan was for arthrodesis of left ankle, but right ankle too was also operated and its arthrodesis was also done, as it was also found suffering from arthritis and complainant complained of acute pain in her right ankle before administering any Anaesthesia. On examination, in the OT itself under C-arm, it also showed arthritic changes, which would have definitely required surgery in the near future. The complainant gave oral consent therefor in the presence of anaesthetist and OT staff and she was also in full state of conscious at that time. The surgery was done in her right ankle first and then in the left ankle through anterior approach during which anterior tibia sliding was done and was fixed with Schanz Pins and surgery wound was closed in layers and then POP Cast was applied to both the lower limbs, which is a standard line of treatment and then she was shifted to the room where she was treated with proper antibiotics and pain killers and anti-inflammatory and other drugs. As per her condition, she was discharged on 27.04.2011 in satisfactory condition. Since, it was a bilateral arthrodesis and in the initial stage it takes time for the patient to get used to it. Surgery in the right ankle was done on the asking of the complainant when the same was explained to the relatives of the complainant. After shifting her to the room, the relatives of the complainant created uproar in the hospital. Thus as a goodwill gesture, the hospital authorities allowed the complainant to have medicines free of costs from the hospital chemist shop for her Consumer Complaint No.83 of 2011 8 post-operative period and assurance was given to her by OP no.2 in writing for free treatment and to bear all treatment expenses of the complainant. The attendants of the complainant forcibly took away the complainant's treatment file, which was restored to the hospital only after a lot of persuasions and attendants of the complainant got photocopies of the treatment record of the complainant. The complainant came for follow-up on 08.05.2011 and on 15.07.2011, her POP and sutures from surgical wound were removed by OP no.2 and the surgical wound was found to be OK and then POP was reapplied. Nothing was charged for either hospitalization or for medicines from the complainant. OP no.1 further raised preliminary objections that complainant is not the consumer as her treatment was merely complimentary. The complaint is alleged to be a gross abuse of process of the Consumer Forum. Any medical negligence or deficiency in service was vehemently denied by OP no.1 on the part of treating doctors of the hospital. Dr. Joginder Pal Singh Chhina since dead was a renowned orthopedic surgeon and he and Dr. Guriqbal Singh Chhina OP no.2 alongwith team of other doctors, as well as para-medical staff of the hospital treated the complainant, as per requirement and treatment/protocols and as per condition of the complainant. The complaint has been filed after un-explained delay. The complaint is alleged to be bad for misjoinder and non-joinder of the necessary parties. The complaint is alleged to be false and frivolous under Section 26 of the Act. The complaint was also resisted vehemently even on merits by OP no.1. It was denied that Consumer Complaint No.83 of 2011 9 she was having little pain while walking. It was admitted by OP no.1 in para no.1 of the written reply on merits that complainant came to OPD of above Dr. Joginder Pal Singh Chhina on 02.04.2011 with complaint of severe pain in left ankle with restricted movement of it and was having difficulty in walking, which was disabling and rendering her incapable of performing her domestic duties. No previous record of treatment was shown by the patient. The complaint was resisted on the above referred averments even on merits in detail by OP no.1. It was emphatically pleaded by OP no.1 that her right ankle was also operated and its arthrodesis was done as it was also suffering from arthritis and she complained of acute pain in her right ankle before inducing Anaesthesia and on examination in the OT itself under C-arm, it also showed arthritic changes, which would have definitely required surgery in the near future and she gave oral consent. OP no.1 further pleaded that the standard text books describe the failure rate of arthrodesis of ankle joint to 10-20%. It was further pleaded that certificate dated 30.09.2011 regarding her temporary disability is a procured document only. The failed arthrodesis of the ankle joint can be corrected surgically followed by proper physiotherapy. By no stretch of imagination it can be believed that the alleged disability of the patient with one ankle joint having been satisfactorily working on arthrodesis and another with failed arthrodesis can have disability to the extent of 65% even as alleged in the said certificate. OP no.1 prayed for the dismissal of the complaint of the complainant by Consumer Complaint No.83 of 2011 10 controverting her allegations regarding any deficiency in service or medical negligence in this case. OPs no.4, 5 and 6 were impleaded as parties in this case, vide order dated 12.03.2012. Name of OP no.2 Dr. Joginder Pal Singh Chhina since dead was struck off, vide order dated 19.08.2013 of this Commission due to his death and office of the court renumbered the serial numbers of the opposite parties, as per order dated 19.08.2013.
3. Dr. Joginder Pal Singh Chhina (since died during the pendency of the case) filed separate written reply and also contested the complaint of the complainant on the same lines/defences on which it has been contested by OP no.1. It is stated in the written reply by Dr. Joginder Pal Singh Chhina that complainant Goldy Trehan came to his OPD on 02.04.2011 with the complaint of severe pain in left ankle with restricted movement of left ankle. She was examined and investigated by him and she was diagnosed to be case of degenerative arthritis following malunion of fracture of ankle since 1½ years. The complainant was having severe pain in her left ankle, which was disabling her and she was unable to do her normal daily chores. The complainant was advised arthrodesis of the left ankle (Arthrodesis ankle is gold standard surgical treatment for relief of pain in the ankle having problem due to arthritis), wherein the plan was to fuse ankle joint or tibiotalar surgically. She was explained in detail the advantage and disadvantage of arthrodesis and her husband consented for the same. On investigation, her ESR alongwith TLC/DLC were found to be on higher side indicating Consumer Complaint No.83 of 2011 11 generalized arthritis and she was advised medicines including antibiotics for 7 days. During surgery, though initial plan was for arthrodesis of left ankle, but her right ankle too was also operated and its arthrodesis was also done as it was also suffering from arthritis, as at that time the patient complained of acute pain in her right ankle before she was induced with anaesthesia. On examination in the OT itself under C-ram, it also showed arthritis changes which would have definitely required surgery in the near future, thus the patient gave her oral consent for that in the presence of the anesthetist and OT staff and she was in full state of consciousness at that time. Any medical negligence and deficiency in service on the part of OPs was denied by the answering OP. Dr. Joginder Pal Singh Chhina controverted the other averments of the complainant and prayed for the dismissal of the complaint.
4. OP no.2 filed separate written reply and contested the complaint on the same lines as contested by OP no.1. It is averred in written reply by him that complainant Goldy Trehan came to OPD of Dr. Joginder Pal Singh Chhina on 02.04.2011 with the complaint of severe pain in left ankle with restricted movement of left ankle and having difficulty in walking. She was properly examined and got investigated by Dr. Joginder Pal Singh Chhina and was diagnosed to be case of degenerative arthritis following malunion of fracture of ankle since 1½ years (No record of previous treatment and fracture produced). She was advised arthrodesis of the left ankle, wherein the plan was to fuse ankle joint or tibiotalar joint surgically and the Consumer Complaint No.83 of 2011 12 complainant was explained in detail about the merits and demerits of arthrodesis, and after understanding all, the complainant and her husband showed their willingness for the same. The complainant was operated upon by the team of Dr. Joginder Pal Singh Chhina, MBBS, M.S. (Ortho), Senior Orthopaedic Surgeon, Chief Surgeon, OP no.2 Dr. Guriqbal Singh Chhina, MBBS, D (Ortho), M.Ch (Ortho) Assistant Surgeon and Dr. R.S. Waan, MBBS, M.D. (Anaesthesia) alongwith other staff of the operation theatre including nursing staff, who were all fully qualified and competent. During surgery, though initial plan was for arthrodesis of left ankle, but her right ankle too was also operated and its arthrodesis was also done, as it was also found suffering from arthritis and complainant then complained of acute pain in her right ankle before administering Anaesthesia. On examination, in the OT itself under C-arm, it also showed arthritic changes, which would have definitely required surgery in the near future. The complainant gave oral consent therefor in the presence of anaesthetist and OT staff and she was in full state of consciousness at that time. Any medical negligence on the part of doctors or hospital OP no.1 was denied by OP no.2 in his written reply. Dr. Guriqbal Singh Chhina OP no.2 denied the other averments of the complainant and prayed for the dismissal of the complaint.
5. OP no.3, Reliance General Insurance Company Limited filed its separate written reply raising preliminary objections that Parvati Devi Hospital OP no.1 has taken a medical establishment- Consumer Complaint No.83 of 2011 13 professions negligence error & omission insurance policy from the answering OP for the period from 13.05.2010 to 12.05.2011. The terms and conditions of the insurance policy were duly supplied to OP no.1 at the time of insurance and indemnity limit during the policy period was of Rs.7,50,000/- in case of one accident. Any professional negligence, omission or error on the part of OP no.1 was denied by answering OP. It was further averred that answering OP has not received any information about act of negligence of OP no.1 and hence it is not liable to pay any compensation. On merits, OP no.4 denied the averments of the complainants for want of knowledge and prayed for the dismissal of the complaint.
6. OP no.4, The New India Assurance Co. Ltd. filed its separate written reply averring that complaint is not maintainable as the professional indemnity only applies to claims arising out of errors bonafidely committed during the course of treatment. The professional indemnity does not cover cases where the culpable negligence is palpable and is occasioned due to gross negligence and callousness on the part of doctor. It was further pleaded that liability of answering OP is limited to the extent of Rs.10 lakhs only under the policy and complainant has filed the complaint for 81.05 lakhs, which is beyond the terms and conditions of the policy. It was further averred that United India Insurance Company Ltd. Is insurer of OP no.2 and complainant has not impleaded it as a necessary party. It further pleaded that answering OP shall not be liable to pay Consumer Complaint No.83 of 2011 14 any compensation and hence prayed for the dismissal of the complaint.
7. United India Insurance Co. Ltd. OP no.5 was set ex- parte, vide order dated 17.05.2012.
8. The complainant tendered in evidence affidavits Ex.C-A, Ex.C-B and Ex.C-C alongwith documents Ex.C-1 to Ex.C-14 and closed the evidence. New India Assurance Company OP tendered in evidence affidavit of Shri A.L. Madan Manager Ex.OP- 5/1 and closed the evidence. OP no.3 tendered in evidence affidavit Ex.OP-3/A alongwith document Ex.OP-3/1 and closed the evidence. OP no.2 tendered in evidence affidavits Ex.OP-2/C and Ex.OP-2/D and closed the evidence. OP no.1 tendered in evidence affidavits Ex.OP-1/A, Ex.OP-1/B alongwith documents Ex.OP-1/1 to Ex.OP- 1/7 and closed the evidence.
9. We have heard the learned counsel for the parties and have also examined the record of the case. The respective pleadings of the parties have been duly weighed by us. We have also evaluated the evidence on the record consisting of affidavits of complainant Goldy Trehan Ex.C-A and Ex.C-B and affidavit of Munish Trehan husband of complainant Ex.C-C. The above referred affidavits have stated on oath the version of the complainant, as pleaded in the complaint. The complainant in her respective affidavits Ex.C-A and Ex.C-B has stated that she experienced pain in her left ankle only at the time of walking with its restricted Consumer Complaint No.83 of 2011 15 movements. She consulted Dr. Joginder Pal Singh Chhina since dead and OP no.2 in this regard, who advised for operation of her left ankle. She was examined by Dr. Joginder Pal Singh Chhina and OP no.2 and prescription slip dated 02.04.2011 is Ex.C-1 on the record to this effect. She further stated in affidavits that she paid the fee of Rs.200/- as consultation fee at that time and the copy of laboratory report is Ex.C-2 on the record. She got conducted X-ray of her left ankle, as advised by Dr. Joginder Pal Singh Chhina and OP no.2 and X-ray is Ex.C-3 on the record. On examination of her X-ray report dated 02.04.2011, Dr. Joginder Pal Singh Chhina and OP no.2 advised her for surgery (Ankle Arthrodesis) of her left ankle. She was admitted in the hospital of OP no.1 and her husband deposited fee of Rs.15,000/- and her history sheet was prepared by the medical officer, which is Ex.C-4 on the record clearly recording the pain and swelling in her left ankle and difficulty in walking with restricted movement of left ankle. She further testified her admission in the hospital of OP no.1 on 22.04.2011, the consent of her husband was obtained, wherein the relevant columns were deliberately left blank. Ex.C-5 is the copy of consent form on the record. She further stated in her affidavits that on 23.04.2011, anaesthesia was administered to her and she was operated upon and on account of sheer negligence of late Dr. Joginder Pal Singh Chhina and OP no.2, operation was conducted on her right ankle instead of her left ankle and Schanz Pins were inserted in her right ankle. OP no.2 was the surgeon and Dr. Joginder Pal Singh Chhina Consumer Complaint No.83 of 2011 16 since dead assisted him during the operation as per operation note dated 23.04.2011 on the record, vide Ex.C-6. Operation note Ex.C-6 has clearly recorded that ankle anthrodesis has been performed on right ankle instead of left ankle. She further deposed that when it came to the notice of her husband and relatives, they raised hue and cry and attending doctors tendered apology for their lapse. The X-ray films showed the operation on both her left and right ankle vide Ex.C-7 on the record. She further maintained in her affidavit that at the time of operation of left ankle, OP no.2 Dr. Guriqbal Singh Chhina gave in writing taking the full responsibility for her treatment and in case her treatment fails, he would take care of further expenses for the treatment from any other doctor, vide undertaking Ex.C-8 on the record given by OP no.2. It has further appeared in her evidence that she was got admitted in the hospital of OP no.1 on 22.04.2011 and she was discharged on 27.04.2011 and it was recorded in the discharge card that the problem was in the left ankle whereas in the operation/procedure it has been recorded as B/L ankle arthrodesis meaning that both left and right ankles were operated upon by the doctors and discharge card is Ex.C-9 on the record. She further stated that ankle arthrodesis is performed in the cases of ankle arthritis, where the patient feels pain in the ankle joint while moving and ankle arthrodesis is the procedure where the ankle joint is internally fixed with the help of the nails meaning thereby that the movement of the ankle joint is completely eliminated and is fixed meaning thereby that the patient is not able to take the movements Consumer Complaint No.83 of 2011 17 from the ankle joint and the same is fixed permanently. She further stated that late Dr. Joginder Pal Singh Chhina and OP no.2 Dr. Guriqbal Singh Chhina at the time of discharge, both the doctors told the complainant that surgery of her right ankle was performed by mistake and they would not charge for the second surgery. She further deposed in her affidavit that on 15.07.2011 the Schanz Pins were removed and again plaster of paris was applied and she was discharged on 16.07.2011 and the treatment has been proved vide Ex.C-10 on the record. She further deposed that both right and left ankles have been operated upon and plates & nails were inserted rendering her completely disabled. She further stated that prior to her surgery, she was having only little pain in walking and after surgery she was rendered totally disabled in walking and unable to climb stairs and she could walk with the help of walker only. She has proved the surgery on both the ankles vide Ex.C-11 on the record. She has further deposed that after the surgery when the pain persisted in the right ankle, she was advised to consult Fortis Hospital Mohali and she consulted the expert Orthopedics of the Fortis Hospital Mohali on 23.09.2011. After her examination, it has been reported that left side ankle after arthrodesis is satisfactory, but her right side ankle arthrodesis had failed and she was advised for arthrodesis or ankle replacement of right ankle and treatment chart of Fortis Hospital Mohali is proved on the record vide Ex.C-12. She further stated that Fortis Hospital Mohali gave the rough estimate of her treatment vide Ex.C-13 on the record. She further maintained in Consumer Complaint No.83 of 2011 18 her affidavit that she was examined by the Medical Board with regard to her disability and she was reported 65% permanent disability, as per the report of Medical Board and certificate of 65% permanent disability of complainant is Ex.C-14 on the record. She leveled the allegations of gross medical negligence on the part of OPs no.1 & 2 and Dr. Joginder Pal Singh Chhina (since dead) in conducting the operation of right ankle for which there was no need for any additional surgery. Her supplementary affidavit is Ex.C-B on the record wherein she denied the pleadings of the OPs that she was the case of any malunion of fracture of ankle since 1½ years. She categorically denied in her supplementary affidavit Ex.C-B that her right ankle was affected with arthritis and required any such surgery. She further stated that OP took the wrong plea that the right ankle so operated of the complainant was suffering from arthiritis and feeling acute pain. She further deposed that no consent for additional surgery was taken from her and from her husband. She further stated that she was given anaesthesia and rendered unconscious and in that insensate condition how she could give any such consent. She further stated that OPs wrote the words complimentary on certain bills to create defence to take the case out of the purview of the Consumer Forum only. She further deposed that OPs leveled false allegations. She further deposed that her husband never signed any refund voucher and OPs maintained it at their own level only. The affidavit of her husband Munish Trehan Ex.C-C is on the record to the effect that her wife Goldy Trehan had Consumer Complaint No.83 of 2011 19 not suffered from arthritis from right ankle. She was admitted in the hospital of OP no.1 on the recommendation of Dr. Joginder Pal Singh Chhina and OP no.2 for surgery of left ankle only. He further stated that he deposited Rs.15,000/- at the time of admission of his wife with OPs on 22.04.2011.
10. We have heard the learned counsel for the parties and also examined the written submissions placed on record by the OPs.
11. OP no.1 tendered in evidence affidavit of Sunil Handa aurhorised representative of OP no.1 hospital Ex.OP-1/A. Ex.OP-1/B is the affidavit of Dr. Yogeshwar Saini, MBBS, M.S.(Ortho), Professor and Head of Department of Ortho of Sri Guru Ram Das Institute of Medical Education and Research, Vallah, Amritsar. Ex.OP-1/1 is the Resolution dated 02.01.2012 passed by OP no.1 in favour of Shri Sunil Handa. Ex.OP-1/2 is copy of indoor patient's record of complainant bearing admission code 9244 dated 22.04.2011 at 03:10 PM. Ex.OP-1/3 is the copy of indoor patient's record of complainant bearing admission code 9693 dated 15.07.2011. Ex.OP-1/4 is the copy of out-door patient register. Ex.OP-1/5 is the copy of bill dated 27.04.2011 of Rs.29,210/-. Ex.OP-1/6 is the copy of refund voucher of Rs.15,000/- dated 27.04.2011. Ex.OP-1/7 is the copy of death certificate dated 13.06.2013 of Dr. Joginder Pal Singh Chhina. Dr. Guriqbal Singh Chhina OP no.2 tendered his affidavit Ex.OP-2/C. Ex.OP-2/D is the supplementary affidavit of Dr. Guriqbal Singh Chhina on the record. Consumer Complaint No.83 of 2011 20 OP no.3 tendered in evidence affidavit of Vineet Solanki, Assistant Manager Legal of M/s Reliance General Insurance Company Ltd. Ex.OP-3/A on the record. Copy of insurance policy in the name of OP no.1 Ex.OP-3/1 on the record. Affidavit of Sh. A.L. Madan, Manager of N.I.A. Co. Ex.OP-5/1. Dr. Joginder Pal Singh Chhina since died during the pendency of this case stated in his affidavit dated 17.09.2012 that Godly Trehan complainant was suffering from severe pain in left ankle with restricted movement with difficulty in walking. She was properly examined by Dr. Joginder Pal Singh Chhina and diagnosed to be case of degenerative arthritis following malunion of fracture of ankle since 1½ years. He further stated that pre-operative treatment was given to her to control hypertension, then the tests were conducted with X-ray of left ankle of the patient before her required operation. He further stated that husband of the complainant gave written consent. Her Pre-anaesthesia check up was done by Dr. R.S. Waan, M.D. (Anaesthesia), who advised her medical fitness prior to surgery, for which purpose, Dr. Y.P. Mehra, Senior Cardiologist of the Hospital examined the patient. He further stated in his affidavit that he is a qualified surgeon. He further deposed that on examination, in the OT itself under C-arm, it also showed arthritic changes, which would have definitely required surgery in the near future and the complainant gave oral consent therefor in the presence of anaesthetist and OT staff and she was in full state of consciousness at that time. The surgery was done in the right ankle first and then in the left ankle through anterior approach Consumer Complaint No.83 of 2011 21 during which anterior tibia sliding was done and was fixed with Schanz Pins and surgery wound was closed in layers and then POP Cast was applied to both the lower limbs, which is a standard line of treatment and then she shifted to the room, where she was treated with proper antibiotics and pain relieving and anti-inflammatory and other drugs as per her condition. She was discharged on 27.04.2011 in satisfactory condition. He denied any medical negligence or deficiency in service on the part of doctors and hospital OP no.1. Ex.OP-2/D is the supplementary affidavit of Dr. Guriqbal Singh Chhina on the record to the effect that complainant Goldy Trehan came to OPD of Dr. Joginder Pal Singh Chhina, since died with the complaint of severe pain in left ankle with restricted movement of left ankle. She was examined and investigated by Dr. Joginder Pal Singh Chhina and she was diagnosed to be case of degenerative arthritis following malunion of fracture of ankle since 1½ years. He further stated that during the surgery he simply assisted Dr. Joginder Pal Singh Chhina. This supplementary affidavit was sworn by Dr. Guriqbal Singh on 27.01.2014 only during the pendency of the case after the death Dr. Joginder Pal Singh Chhina.
12. Affidavit of Vineet Solanki, Assistant Manager Legal of M/s Reliance General Insurance Company Limited is Ex.OP-3/A on the record stating that it issued the insurance policy to OP no.1 hospital, which was restricted to the extent of 7.5 lakhs only for any one accident during the policy period. Sh. A.L. Madan Manager of New India Assurance Co. Ltd. tendered his affidavit Ex.OP-5/1 on Consumer Complaint No.83 of 2011 22 the record. He stated in his affidavit that liability of New India Assurance Co. Ltd. is restricted to the extent of Rs.10 lakhs only and complainant filed the complaint for compensation to the tune of Rs.81.05 lakhs. The complaint is not maintainable as the professional indemnity only applies to claims arising out of bonafide errors committed during the course of treatment, but the professional indemnity does not cover cases where the culpable negligence is palpable and occasioned due to gross negligence and callousness on the part of the doctor. She further stated that instant case dehors the terms and conditions of the insurance policy issued by New India Assurance Co. Ltd. in favour of Dr. Guriqbal Singh Chinna.
13. From evaluation of above referred evidence on the record and hearing the respective submissions of counsel for the parties and written submissions placed on the record, we proceed to decide the case. The argument of Dr. Guriqbal Singh Chhina is that Dr. Joginder Pal Singh Chhina had died during the pendency of the case and he was the main surgeon and he simply assisted him in this procedure and as such he is not liable. Reference was made by counsel for OP no.2 to law laid down in "Balbir Singh Makol Vs. Chairman, M/s Sir Ganga Ram Hospital and others"
2001/(1)CLT-495 , wherein the National Commission has held that Death of OP no.2, the Senior Surgeon, the complainant cannot proceed any further against OP no.2 due to death of Senior Surgeon. No relief could be accorded to the complainant on account of the death of the Senior Surgeon who was actually consulted and Consumer Complaint No.83 of 2011 23 who took the decision to operate in the manner he did. The junior doctor without specific allegations leveled against him would not be liable. We find that the cited authority would not be of any assistance to OP no.2 in this case, as cited by his counsel. Ex.C-1 is copy of consultation slip, wherein OP no.2 Dr. Guriqbal Singh Chhina equally appears, who gave the consultation. Ex.C-6 the copy of operation notes recording the name of surgeon as Dr. Guriqbal Singh Chhina assisted by Dr. Joginder Pal Singh Chhina since dead in the operation. From Ex.C-6, the operation notes; it is clear that Guriqbal Singh Chhina was the main surgeon, who conducted the surgery on the right ankle of the complainant. Even the undertaking for mistake and for future treatment free of cost was furnished by Dr. Guriqbal Singh Chhina to complainant, vide Ex.C-8 dated 23.04.2011 on the record. There was no question of giving the undertaking by Dr. Guriqbal Singh Chhina OP no.2, if he had not been mainly involved in this case. The undertaking then would have been given by Dr. Joginder Pal Singh Chhina only, but a fortiori, it has been given by Dr. Guriqbal Singh Chhina pointing out his mistake in this regard. Dr. Guriqbal Singh Chhina OP no.2 was also the faculty member of OP no.1 Hospital, vide Ex.C-9 on the record and follow up treatment is duly signed by OP no.2 Dr. Guriqbal Singh Chhina in this case. Even from the document adduced on record by the OPs, vide indoor patient's record of complainant Ex.OP-1/2, it is clear that instead of right ankle, the word 'R' has been over-written and B/L has been interpolated on it. What was the need to overwrite the word 'R' Ankle Consumer Complaint No.83 of 2011 24 and write B/L remained unexplained. Even in the indoor patient's record of complainant Ex.OP-1/3, the name of treating doctor has been recorded as Dr. G.S. Chhina and not Dr. Joginder Pal Singh Chhina. This is the document of OP no.1, which has recorded that treating consultant is Dr. G.S. Chhina. There is positive evidence furnished by the complainant in affidavit that it was Dr. Guriqbal Singh Chhina who participated in the procedure and committed the negligence. Consequently, the said authority, as relied upon by OP no.2, would not be helpful to them in this case.
14. The next submission of counsel for OPs raised before us is that it has been proved in the affidavit of Dr. Joginder Pal Singh Chhina since dead that during surgery, though initial plan was for arthrodesis of left ankle, but right ankle too was also operated and its arthrodesis was also done, as it was also found suffering from arthritis and complainant complained of acute pain in her right ankle before administering Anaesthesia. On examination, in the OT itself under C-arm, it also showed arthritic changes, which would have definitely required surgery in the near future. The complainant gave oral consent therefor in the presence of anaesthetist and OT staff and she was in full state of consciousness at that time. We find no force in this plea of defence raised by the OPs. There is no written consent of the complainant or her husband on the record for any additional surgery as proved on the record. The complainant was suffering from pain in left ankle only and she was operated for right ankle first in this case. The various record as discussed above has Consumer Complaint No.83 of 2011 25 proved that complainant suffered problem in the left ankle and there was no record to prove arthritis of right ankle of the complainant on the file. Now, we confine to this fact whether additional surgery can be resorted to by the surgeon at the time of surgery without the consent of the complainant. The matter has been settled by the Apex Court in "Samira Kohli Vs. Dr. Prabha Manchanda and another"2008(1) CLT-426, wherein it has held that when a patient is a competent adult and not mentally challenged nor incapacitated, there is no question of someone else giving consent on his behalf. The Apex Court categorically held that the doctor has to seek and secure the consent of the patient before commencing a 'treatment'. The consent so obtained should be real and valid, which means that the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to. The adequate information to be furnished by the doctor who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. The doctor should disclose the nature and procedure of the treatment and its purpose, benefits and effect; alternatives if any available, an outline of the substantial risks; and adverse consequences of refusing treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional Consumer Complaint No.83 of 2011 26 surgery is beneficial to the patient, or that it would save considerable time and expense to the patient or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. Unless in a case of emergency situation where the life saving process of the patient is involved, as per the ratio of this judgment; the doctor cannot resort to additional surgery without consent of patient, though beneficial to him irrespective of the fact whether it is beneficial to the patient or not. The doctor cannot perform additional procedure during a scheduled procedure without prior consent of patient on the ground that it was beneficial to patient, except in cases where the life of patient was in danger. We repel the submission of the OPs that complainant gave oral consent before administering anaesthesia to her to operation of her right ankle.
15. The submission of the OPs is that there is no expert doctor's report on the file to prove any medical negligence on the part of OPs. Now the matter has been settled by the Apex Court in "V. Kishan Rao Vs. Nikhil Super Speciality Hospital & another"
2010(4) CLT 256, wherein it has been held that it is not required to have expert evidence in all cases of medical negligence. In most of the cases; the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Even otherwise; the matter was referred to Guru Gobind Singh Medical College and Hospital by this Commission, vide order dated Consumer Complaint No.83 of 2011 27 09.06.2015. The report is dated 24.07.2015, wherein it has been recorded that it is case of bilateral ankle arthrodesis with no movements possible at both the ankles. The complainant was held to be a case of total permanent disability of 66 per cent, which is non-progressive in nature and reasons for her disability is fusion of both the ankles, which has been done in this case by the OPs. In addition to that, consultation slip of Fortis Hospital is Ex.C-12, showing that left side was doing satisfactory and right side is failed anthrodesis and patient felt more pain in right side than left. The further surgery cost was assessed to be Rs.70,000/- vide Ex.C-13 by the Fortis Hospital Mohali. The disability certificate issued by the Medical Board Ferozepur is Ex.C-14 on the record finding the complainant to be a case of 65% permanent physically disability, which is non progressive with no hope of future treatment prognosis.
16. The next submission of the OPs is that the relationship of consumer and service provider is not proved in this case as OPs refunded Rs.15,000/- to the husband of the complainant. This fact has not been admitted by the complainant and her husband in their respective affidavits. The main reliance of OPs is on the refund slip Ex.OP-1/6. We find that the amount of Rs.15,000/- was deposited by the complainant side at the time of admission and Rs.200/- was paid to the surgeon as fee and there is relationship of consumer and service provider, which cannot be taken away later on. It rather points the finger of suspicion on OPs no.1 and 2 in this case. There was no question of giving the undertaking by OP no.2 Dr. Guriqbal Consumer Complaint No.83 of 2011 28 Singh Chhina to complainant, if gross error was not committed by OP no.2 in this case in the operation of right ankle of the complainant which was not required at that time. The consent form filled by husband of the complainant vide Ex.C-5 is incomplete document and most of the columns of this consent form are lying blank and it seems that it was not real informed consent.
17. The next submission of the OPs is that complex facts are involved in this case, hence matter cannot be adjudicated by the Consumer Forum. We find that matter has been examined by the Apex Court in "Dr. J.J. Merchant Vs. Shrinath Chaturvedi" 2002 AIR (SC) 2931, wherein it has been held that delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court. The Consumer Forums are presided over by the experienced Judicial Officers and such type of matter can be examined by them.
18. As a result of our above discussion, we have come to this conclusion that the principle of res ipsa loquitor is applicable in this case. There is no document on the record that complainant was suffering from right ankle arthritis at the time of its operation. There is nothing on the record that complainant gave consent that surgery of her right ankle. Even the record of the OPs proved that complainant complained pain in her left ankle only with restricted movement and sought medical assistance therefor. Conducting operation without any valid and informed consent of complainant of right ankle first Consumer Complaint No.83 of 2011 29 instead of left ankle by OP no.2 and Dr. Joginder Pal Singh Chhina since dead in the hospital of OP no.1 has proved the medical negligence and deficient service in this case. There was no question of insertion of Schanz Pins in the right ankle of the complainant which has been done in this case, vide X-ray Ex.C-7 and Ex.C-8 on the record. The word 'B/L ankle' has been inserted in the record as discussed above by the OPs just to save their skin. There was no question of tendering written apology and giving undertaking by OP no.2, vide Ex.C-8 dated 23.04.2011 in case it was not the gross error on the part of OP no.2. OPs no.1 and Dr. Guriqbal Singh Chhina OP no.2 are held to be medically negligent and deficient in service in conducting the operation on the right ankle of the complainant first without any written consent and without any need therefor. Dr. Joginder Pal Singh Chhina has expired and OP no.4 is the insurer of the same. OP no.1 is hospital and OP no.2 Dr. Guriqbal Singh Chhina the surgeon are thus, held, liable for the medical negligence in this case to the complainant. OP no.5 is the insurer of Dr. Guriqbal Singh Chhina OP no.2.
19. On the point of quantum of compensation, we find that the complainant suffered a lot in this case. On account of failed arthrodesis of right ankle for which there was no need to go in for surgery, we award the compensation of Rs.4,50,000/- (Four Lakh and Fifty Thousand only) to the complainant and in addition to that we also award the compensation of Rs.75,000/- (Seventy Five Thousand only) for mental harassment and loss of amenities to the Consumer Complaint No.83 of 2011 30 complainant. We also award the costs of litigation Rs.25,000/- (Twenty Five Thousand only) to the complainant. OP no.1, the hospital and OP no.2, Dr. Guriqbal Singh Chhina shall pay the above said amounts to the complainant jointly and severely within 45 days from the date of receipt of copy of order and OPs no.1 and 2 can then seek re-imbursement in accordance with the terms and conditions of the policy, if permissible from their respective insurers OPs no.3 to 5 respectively. In case of failure for non-payment of above said amounts to the complainant by OPs no.1 and 2 within 45 days from the date of receipt of certified copy of the order, the awarded amount shall further carry interest @9% per annum from the date of order till actual payment.
20. Arguments in this complaint were heard on 24.12.2015 and the order was reserved. Now the order be communicated to the parties. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S. GURAM) MEMBER January 05, 2016.
(MM)