State Consumer Disputes Redressal Commission
Swami Permanand (Charitable) Hospital vs Yash Paul Sharma on 13 August, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.941 of 2007.
Date of Institution: 04.07.2007.
Date of Decision: 13.08.2012.
Swami Permanand (Charitable) Hospital, G.T. Road, Mukerian, District
Hoshiarpur, through its President.
.....Appellant.
Versus
1. Yash Paul Sharma S/o Sh. Dina Nath Sharma, Resident of New
Colony, near M.C. Park, Mukerian, District Hoshiarpur.
2. Dr. Rajiv Pangotra, Surgeon, Swami Permanand Hospital, Mukerian, at
present Sanjiwani Hospital, near A.S. Senior Secondary School,
Mukerian, District Hoshiarpur.
...Respondents.
First Appeal against the order dated
01.06.2007 of the District Consumer
Disputes Redressal Forum, Hoshiarpur.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
...................................
Present:- Ms Sarika Gupta, Advocate, counsel for the appellant.
Sh. C.S. Marwaha, Advocate, counsel for respondent no.1. Sh. Parveen Kumar, Advocate, counsel for respondent no.2.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
Swami Permanand (Charitable) Hospital, appellant (In short "the appellant") has filed this appeal against the order dated 01.06.2007 passed by the learned District Consumer Disputes Redressal Forum, Hoshiarpur (in short "the District Forum").
2. Facts in brief are that Sh. Yash Paul Sharma respondent no.1/ complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant and respondent no.2, on the grounds that he suffered severe First Appeal No.941 of 2007 2 pain on 03.06.2003 and consulted Dr. Rajiv Pangotra, respondent no.2, who was working as surgeon with the appellant and he advised surgery i.e. operation of Hernia. Respondent no.1 himself came on 04.06.2003 on his bicycle while his son Vivek Sharma accompanied him and respondent no.1 was asked to deposit Rs.2,000/- and the amount was deposited.
3. Respondent no.2 admitted respondent no.1 in the hospital at about 2.00 p.m. on 04.06.2003 and he was taken to the operation theatre by respondent no.2 at about 2.30 p.m. The respondent no.1 and his son Vivek Sharma inquired from respondent no.2 as to whether any pre-operation tests were required to which respondent no.2 answered in negative. Before surgery, no medical check-up was done to determine the general health of respondent no.1. No fitness certificate was obtained from the Cardiologist or Anesthesiologist before surgery. Essential tests like HB, BP, RBS, ECG were not conducted. No specialist doctor was present to give anesthesia to respondent no.1 and the anesthesia was administered by respondent no.2 himself. Initially, spinal anesthesia in the form of injection was given, but it did not give any effect and thereafter, after 10 minutes, second injection was given which adversely effected the vital parts of the body. When respondent no.1 came out of the affect of anesthesia after about three hours, he realized that lower part of his body i.e. below the abdomen was senseless and there was severe pain in the backbone. Respondent no.2 was informed by the son of respondent no.1, but respondent no.2 came after one hour and gave injection and explained that respondent no.1 will be alright after some time, but it was a false assurance given by respondent no.2. The condition of respondent no.1 remained the same on the next day, rather the pain in the backbone increased and both the legs of respondent no.1 were senseless.
4. Respondent no.1 was suffering from pain despite the treatment given by respondent no.2 and the son of respondent no.1 complained to the officers of the management of the appellant that anesthesia was not given in a proper manner. The members of the management called Dr. Pangotra i.e. First Appeal No.941 of 2007 3 respondent no.2 and asked him to consult some expert doctor. On 06.06.2003, the condition of respondent no.1 started deteriorating. Respondent no.2 repeatedly pricked needles in the legs of respondent no.1, but there was no effect and the legs of respondent no.1 remained senseless. On making complaints by the family members of respondent no.1 to the management of the appellant, respondent no.2 took respondent no.1 accompanying by his family in a Tata Sumo vehicle to his close doctor at Muni Lal Chopra Hospital, Amritsar. The doctor of the said hospital after checking respondent no.1, immediately put a query to respondent no.1 as to who administered the anesthesia to him and before respondent no.1 could reply, respondent no.2 replied that he had administered the anesthesia and the doctor said 'very bad'.
5. As per direction of the doctor of Muni Lal Chopra Hospital, the MRI test of respondent no.1 was conducted at Dhillon Hospital, Amritsar, where it transpired that there was a fracture in the backbone at the time of administering anesthesia which was not before the operation. Respondent no.2 advised respondent no.1 to shift to his house and being hot summer season, respondent no.1 developed bedsore, as he was lying down continuously on the bed and was not able to move. Respondent no.2 visited sometimes and assured that respondent no.1 will be alright, but the bedsore started developing and respondent no.1 was unable to tolerate and ultimately, the family members of respondent no.1 brought him to Ludhiana and consulted a number of doctors, including doctor of Bassi Hospital and the doctor tried to heal-up the bedsore by conducting minor operations and referred respondent no.1 to Sutlej Hospital, Sarabha Nagar, Ludhiana, for plastic surgery. The respondent no.1 remained at Ludhiana from 05.08.2003 to 12.10.2003 and was admitted in Sutlej Hospital on 17.09.2003 and was discharged on 12.10.2003. The said bedsore was the result of spine injury inflicted by respondent no.2 at the time of administering the anesthesia. The respondent no.1 is still getting treatment and both the legs are senseless and First Appeal No.941 of 2007 4 has become handicapped and there was negligence on the part of respondent no.2 and due to gross negligence, the injury was inflicted upon the spinal cord.
6. The respondent no.1 served as a teacher and after retirement was helping his son in running stationery business at Mukerian and from the date of the treatment, the shop is closed and there is no hope in future to restart his business.
7. The respondent no.1 spent Rs.3.00 lacs on his treatment, medicines etc. and has to keep a permanent attendant and suffered lot of mental agony, pain and harassment and is entitled to Rs.18.00 lacs as compensation and prayed that the appellant and respondent no.2 may be directed to compensation of Rs.18.00 lacs to respondent no.1.
8. In the written reply filed on behalf of the appellant, the preliminary objections were raised that the appellant is a charitable hospital and the complaint is not maintainable. No negligence has been alleged against the appellant and the complaint is liable to be dismissed.
9. On merits, it was admitted that the appellant hospital is situated at Mukerian and respondent no.2 is surgeon, working in the appellant and the hospital is being run by its management committee and is a charitable hospital, being run for the benefit of public at large. It was further admitted that respondent no.1 came to the appellant hospital and was properly advised by respondent no.2. Rs.2,000/- were deposited by respondent no.1 and he was admitted on 04.06.2003. It was further pleaded that proper tests were conducted by the doctors of the hospital before the operation of respondent no.1. The appellant hospital has got very qualified staff and medical check-up was done regarding the general health of respondent no.1 before operation. It was for the doctor concerned to prescribe as to which test was necessary for surgery. The appellant was never aware regarding the anesthesia given to respondent no.1. The respondent no.1 was hale and hearty for the surgery. Son of respondent no.1 came to the management and the management did First Appeal No.941 of 2007 5 everything for the betterment of respondent no.1. There is no negligence on the part of the appellant. Denying other allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
10. Respondent no.2 filed separate written reply, taking preliminary objections that the complaint is not maintainable and respondent no.1 is estopped by his act, conduct and admissions to file the present complaint. Respondent no.1 is not a consumer. Complicated questions of law and facts are involved and the compliant cannot be decided in summary manner under the Act. Respondent no.2 is not liable to pay any damages, as the appellant has got vicarious liability to indemnify respondent no.2 in all respects. The answering respondent is not serving in the appellant hospital now. The answering respondent moved an application dated 17.03.2004, asking to produce the complete treatment record of respondent no.1 lying in the office of the appellant, but no record was produced. The answering respondent reserves his right to file amended written statement, if some new facts come to his notice.
11. On merits, it was submitted that the appellant is a charitable hospital and no fee was paid by respondent no.1 on account of operation charges and for treatment. The answering respondent is a qualified M.B.B.S. as well as a qualified M.S. from Govt. Medical College, Amritsar and has got sufficient experience in anesthesia, when he worked as General Duty Medical Officer in Anesthesia in Beas Hospital, Beas, District Amritsar. The answering respondent is having sufficient experience to work as surgeon and anesthetist. The answering respondent working as General Surgeon from 11.10.2002 to 31.07.2003 and the entire work was being done by the answering respondent under the direction of the management of appellant and the appellant is vicariously liable to indemnify respondent no.2.
12. Respondent no.1 came to respondent no.2 on 30.05.2002 with history of swelling of umbilicus for the last five years. The swelling used to disappear while lying down and reappear on standing or while doing some First Appeal No.941 of 2007 6 work. Respondent no.1 gave the history that the swelling was not disappearing for the last one month and there remained occasional mild pain and the same was diagnosed as a case of 'Irreducible Umbilical Hernia' and the treatment was advised and it could lead to death even and, as such, the operation was to be conducted as an emergency. Respondent no.1 was advised to undergo routine tests. On physical examination, respondent no.1 was found to have spine deformity of the Thoracic Region (Kyphosis). Respondent no.1 came to the appellant on 03.06.2003 as a case of severe pain and was advised immediate surgery, as there was fear of obstruction and strangulation which could lead even to death, if neglected, but respondent no.1 did not act upon the advice of the answering respondent.
13. Respondent no.1 again came on 04.06.2003. There was a constant pain and the emergency surgery was required to save his life. The routine tests were done immediately. On physical examination, Respondent no.1 was found to have spine deformity (Kyphosis) for a long time. The entire risk was explained to respondent no.1, but he told that he has no problem with deformity. The answering respondent also told the entire case to the management regarding the emergency operation and the management asked the answering respondent to do the needful immediately and take it as an emergency case.
14. In fact, in Mukerian, no private anesthetist was available and respondent no.1 was given spinal anesthesia which is a type of local anesthesia and is given in the subarachnoid space of spinal canal between L.3 and L.4 vertebrae. As respondent no.1 had Kyphosis, so the effect of anesthesia remained below the operating part. After a period of 10 minutes, when the effect did not appeal, the local anesthesia was given around the operating part and operation was done under local anesthesia.
15. Dr. Meenakshi Sharma was medical officer in the hospital at that time and she was asked to monitor the respondent no.1 during surgery. Dr. Meenakshi Sharma is a qualified M.B.B.S. doctor. During operation, it was First Appeal No.941 of 2007 7 found that omentum was present in sac of Hernia and it was a case of real emergency. Respondent no.1 remained conscious throughout the operation and did not complain of any pain at any side other than the operation side, where he was feeling mild pain during the operation.
16. The answering respondent maintained the entire history of respondent no.1 in the bed head ticket/record file. All the routine tests performed were duly mentioned in the case history file. The tests were within normal limits. The entire treatment given to respondent no.1 was duly referred and mentioned in the file of respondent no.1 and the entire record is in the custody of the appellant. In fact, respondent no.1 had re-gained the power which he lost, again on 05.06.2003. Respondent no.1 complained to the answering respondent that he was unable to move his leg when he was on round of the indoor patient on 05.06.2003. On examination, it was found that there was paralysis of the body of the lower half below the waist and there was no sensation below the waist. On inquiry, the attendants told the answering respondent that they were trying to give side to the patient and they heard a clicking sound and respondent no.1 experienced pain on the upper part of the back. Possibility of the fracture of spine was explained to the attendants and the entire case was discussed with the management. The attendants had committed the mistake while giving side to respondent no.1 and while giving side, the attendants of respondent no.1 lost control of his hands and the patient suffered sudden blow which led to the said injury.
17. For the welfare of respondent no.1, it was decided that he needs MRI and expert management and was referred to Muni Lal Chopra Hospital, as the said hospital was having the facility of Neuro-Surgeon etc. The MRI was done immediately and it showed Anky losing spondylitis with injury dorsal spine D-11 - D-12. The fracture did not occur due to spinal anesthesia and the fracture of the spine occurred due to hypertension, whereas while administering anesthesia, the patient was flexed and never hyper-extended. The fracture was due to negligence of the attendants First Appeal No.941 of 2007 8 themselves. The MRI report has also been withheld by respondent no.1 which shows his malafide and ill-intention. The doctors of Sutlej Hospital never found any fault in the treatment given by respondent no.2 and the frivolous complaint has been filed and there is no negligence on the part of respondent no.2. Other allegations of the complaint were denied and it was prayed that the complaint may be dismissed with costs.
18. Parties led evidence in support of their respective contentions by way of affidavits and documents.
19. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that it was not a case of emergency and respondent no.2- Dr. Rajiv Pangotra was not an expert in administering the anesthesia and there was no emergency to conduct the surgery on the person of respondent no.1 and respondent no.2 was guilty of rendering deficient services. The appellant and respondent no.2 have failed to prove that the injury in question was caused on the person of respondent no.1 due to positioning by his attendants. It is proved on record that the respondent cannot walk throughout the life and suffered 100% disability. The respondent has spent more than Rs.1.70 lacs on his treatment and awarded a global compensation of Rs.6.00 lacs in favour of respondent no.1 and the appellant and respondent no.2 were held liable to pay the same jointly and severally along with litigation expenses of Rs.2,000/-.
20. Aggrieved by the impugned order dated 01.06.2007, the appellant has come up in appeal.
21. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
22. It was admitted that the appellant hospital is situated at Mukerian, District Hoshiarpur and respondent no.2 was working as Surgeon in the appellant hospital. It was also admitted that respondent no.1 came to First Appeal No.941 of 2007 9 the appellant hospital and he was admitted on 04.06.2003. Respondent no.1 was hale and hearty at the time of surgery. The case of respondent no.1 is that no pre-operation tests were carried out, nor any medical check-up was done to determine his general health. No certificate was obtained from the Cardiologist or Anesthetist about the fitness of respondent no.1 to undergo operation. Even the specialist doctor to give anesthesia was also not present and the anesthesia was given by respondent no.2, who is not specialist. He gave two injections which damaged the spine and the lower portion below the abdomen became senseless and he was taken to Muni Lal Chopra Hospital and on conducting MRI test, fracture in the backbone was found which occurred at the time of administering anesthesia, which was not there earlier. Respondent no.1 consulted a number of doctors and took treatment and he has also become disable due to the negligence of respondent no.2.
23. The first question which requires consideration is whether respondent no.2, who is a surgeon, was competent to administer anesthesia to respondent no.1 and was a qualified doctor?
24. To answer this question, the cross-examination of respondent no.2 is very relevant and a decisive factor. Respondent no.2 in his cross- examination admitted that he performed surgery of respondent no.1 and at that time, there was no Cardiologist and Anesthetist available and he performed the surgery upon respondent no.1. He did not obtain fitness certificate from the Cardiologist and Anesthetist prior to performing the surgery of respondent no.1. He gave the anesthesia to respondent himself. He further deposed that he is not having the diploma for anesthesia, nor he did M.D. in the said subject. He gave anesthesia to about 500 patients at Beas Charitable Hospital, Beas, but he has no record with him. He went on to depose that in emergency cases, this can be done. He further admitted that at the time of admission, the complainant was fit for operation. He also admitted that at the time of admission, the complainant (respondent no.1) did not have spinal cord fracture, but he was having the same when he was discharged First Appeal No.941 of 2007 10 from the hospital. Respondent no.1 at the time of admission was having Kyphosis thoracic spine. He further admitted that when respondent no.1 was discharged, his bottom below belly was senseless. He has seen respondent no.1 today in the Forum and he was in same condition on the day when he was discharged from the hospital. He also admitted that the present condition of respondent no.1 occurred in the hospital. He admitted that at the time of admission of the complainant in the hospital, he was not paraplegic. In the cross-examination on behalf of the appellant, he further admitted that it is the decision of the doctor to operate the patient. Voluntarily stated that the facilities were made available by the management. He had sufficient experience to administer anesthesia, therefore, he took the decision to give anesthesia to respondent no.1. Voluntarily stated that he took the decision on the advice of the management.
25. Dr. Gurdeep Singh Kapoor, M.D. (Anesthesia), Civil Hospital, Hoshiarpur is very important and material witness so far as the present case is concerned and he has the requisite qualification and experience and he himself stated that he is an expert in the field of anesthesia. He examined respondent no.1 in the Forum as well as examined the record of respondent no.1 placed on the file of the District Forum as well as the record of appellant hospital, including the MRI and the report of Dr. Tejinder Singh Dhillon. He checked the complete history as well as the treatment given by respondent no.2. His deposition reproduced below is sufficient to clinch the issue in this case:-
"In my expert view, the complainant is suffering because of spinal cord injury. As per the investigations, and M.R.I. report, the spinal cord injury took place due to the fracture vertibera between D-eleven and D- twelve. In my view, this injury is because of the positioning of the patient. This injury can be during the surgery or during shifting the patient to the recovery room or the ward. This injury can also be during anesthesia, positioning of the patient. The positioning of the patient First Appeal No.941 of 2007 11 during anesthesia is to be done by the staff in the operation theatre or by the doctor present. The positioning of the patient mentioned above is meant only in the operation theatre".
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"In my view, general anesthesia should have been given to the complainant in this case. In my view, had general anesthesia being given to the complainant, the complications which have arisen to the complainant in this case could have been avoided".
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"An M.B.B.S. doctor is not competent to give general anesthesia. The doctor should be diploma holder in anesthesia or he should have been M.D. in anesthesia. The complainant present in the Forum Yash Pal Sharma, is suffering from 100% disability on the lower limbs. He can never walk for the whole of the life. The complainant requires treatment and an attendant for the whole of his life".
26. This witness was cross-examined at length, but nothing material against the above deposition could be extracted from him. Dr. Minakshi Sharma and Dr. Ravinder Tah have not stated much, except that Dr. Minakshi Sharma monitored the operation and Dr. Ravinder Tah, who is a plastic surgeon, treated respondent no.1 for bed sores etc.
27. From the above discussion, it is clear that respondent no.2, who was a surgeon, was not competent in administering anesthesia and he was not a qualified doctor to administer anesthesia to respondent no.1.
28. Admittedly, respondent no.1 came to appellant hospital and was examined by respondent no.2 and at that time, he was hale and hearty and there is no evidence or material brought on file by the appellant and respondent no.2 to prove that there was any extreme emergency to operate respondent no.1 immediately. No advice of the management is on the record First Appeal No.941 of 2007 12 to prove that it was a case of emergency and there was no time to call other doctors, particularly, the expert to administer anesthesia. Respondent no.2 himself admitted that at the time of admission or before the operation, respondent no.1 had no spinal injury, but when he was discharged, his bottom below belly became senseless. Respondent no.2 admitted after seeing respondent no.1 before the District Forum that he was in the same condition when he was discharged. He admitted that on the day of discharge, respondent no.1 was not in a position to move and today also he cannot move. The present condition of respondent no.1 occurred in the hospital. It was also admitted that at the time of admission of respondent no.1 in the hospital, he was not paraplegic.
29. From the statement of respondent no.2, it is clear that the condition of respondent no.1 absolutely deteriorated after he was given the anesthesia and due to that, he suffered spinal cord injury and none else, but respondent no.2 gave the anesthesia in the spinal cord and caused injury to it. Respondent no.2 has tried to put the blame on the attendants of respondent no.1 for his condition, but that is not acceptable. It was the duty of respondent no.2 and his staff to see that no damage is caused and respondent no.1, who was hale and hearty and has come of his own to respondent no.2, became 100% disable after the treatment given by respondent no.2. The negligence of respondent no.2 is proved beyond any doubt and respondent no.2 has failed to rebut the evidence led by respondent no.1 in any manner.
30. The plea that the appellant hospital is not charging any fee, is not tenable because Rs.2000/- were got deposited by the appellant and respondent no.2 was the doctor serving with the appellant at the relevant time and, as such, it cannot be said that the treatment of respondent no.1 was done free of charges and the appellant and respondent no.2 cannot be exonerated on this score.
First Appeal No.941 of 2007 13
31. In view of above discussion, the order passed by the District Forum is detailed and speaking one and there is no ground to interfere with the same. However, the appeal is required to be dismissed with special costs.
32. Accordingly, the appeal filed by the appellant being without any merit is dismissed with special costs of Rs.20,000/- (Rupees Twenty Thousand) and the impugned order under appeal dated 01.06.2007 under appeal passed by the District Forum is affirmed and upheld. Payment of costs shall be paid by the appellant to the respondent no.1/complainant within 45 days of receipt of copy of the order.
33. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.2,00,000/- vide receipt dated 15.11.2007 in compliance of the order dated 17.10.2007 passed by this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
34. Remaining amount as per order of the District Forum shall be paid by the appellant and respondent no.2 to respondent no.1/complainant within 45 days of copy of receipt of the order.
35. The arguments in this appeal were heard on 30.07.2012 and the order was reserved. Now the order be communicated to the parties.
36. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member August 13, 2012.
(Gurmeet S)