R.P.DAHIYA vs PARDEEP AGGARWAL

SHRI R.P. Dahiya, who is a practising Lawyer, has invoked the original jurisdiction of this Commission under Section 12 of the Consumer Protection Act by filing the present complaint seeking a direction for compensation of Rs. 12,48,000/- from the opposite party, i.e. Dr. Pardeep Aggarwal, on account of alleged deficiency of service and rash and negligent conduct.

THE case, as set up by the complainant in the complaint, is that on 19th February, 1996, while he had gone for evening walk, he slipped-away on road at Panchkula and suffered a fracture of neck femur. THE complainant contacted Dr. P.L. Jindal, Director General, Health Services, Haryana, who after examining him, asked Dr. Pardeep Aggarwal for taking X-ray of the complainant. Dr. Pardeep Aggarwal, opposite party No. 1, took X-ray at his clinic and it was found that left neck of femur of the complainant is fractured. THE said doctor advised that operation is the only treatment for the fracture suffered by the complainant and told that he being an Ex-Orthopaedic Surgeon of Saket Hospital, Chandimandir, is an experienced and expert surgeon for performing such surgery. Dr. Pardeep Aggarwal opined that total hip replacement of left side is to be done and gave a list of medicines/articles required for the operation. THE son of the complainant purchased the medicines/articles, as asked for by Dr. Pardeep Aggarwal. In the evening of 20.2.1996, Dr. Pardeep Aggarwal performed the surgery in Verma Maternity and Nursing Home, Sector 6, Panchkula. Dr. Pardeep Aggarwal on the next date of surgery told the complainant that instead of total hip replacement of neck femur, he had inserted screws and one of the screws inserted was of over size and the same was to be removed after a lapse of some time, otherwise it would create problem to him. THE complainant remained as indoor patient in Verma Maternity and Nursing Home, Sector 6, Panchkula upto 23.2.1996. After discharge from nursing home, the complainant kept on visiting the clinic of Dr. Pardeep Aggarwal on account of acute pain. Dr. Pardeep Aggarwal always kept on saying that he is alright and after some time the pain will subside and he even issued a fitness certificate to the complainant, copy of which is annexed as Annexure A-2 to the complaint. THE complainant further states that though fitness certificate was issued to him but he was unable to walk even on crutches and he could not resume his routine duties due to pain, which was increasing day-by-day. It was on 17.6.1996 that the second surgery was performed for the removal of the screws. Dr. Pardeep Aggarwal removed all screws for the reasons best known to him. On an enquiry, Dr. Aggarwal told the complainant that all screws had been removed, as everything was normal and he issued a fitness certificate to the complainant on 7.7.1996 with an advice to walk with stick. The complainant alleges that though all screws were removed but there was no relief and he had continuous pain. The complainant kept on visiting the clinic of Dr. Aggarwal. On 7.8.1996, Dr. Pardeep Aggarwal assured the complainant that the fracture had been completely united and he can walk even without the help of stick. Copy of certificate dated 7.8.1996 is annexed as Annexure A-5 to the complainant.

On 2.9.1996, Dr. Pardeep Aggarwal advised the complainant to meet Dr. M.S. Gupta, an Ex-Orthopaedic Surgeon of Saket Hospital, who is running his own clinic in Sector 2, Panchkula. Dr. Gupta on examination of the complainant, opined that the fracture has not been united and there was shortening of leg also. This fact was conveyed to Dr. Aggarwal also.

ON 3.9.1996, Dr. Aggarwal told the complainant that he should be prepared for operation for total hip replacement and the operation will be performed by Dr. M.S. Gupta in Verma Maternity and Nursing Home. The complainant realised that there is some nexus between the two. Thereafter, he went to Government Medical College and Hospital, Sector 32, Chandigarh for treatment. Prof. (Dr.) Raj Bahadur, Head of Orthopaedic Department, examined the complainant, who opined that it being an old case of fracture, there is no option but to go for total replacement of the hip. The complainant was kept on traction for about 12 days and total hip replacement was performed on 27.9.1996 in the Government Medical College and Hospital, Sector 32, Chandigarh and he was discharged from the hospital on 5.10.1996. The stitches were removed on 11.10.1999. The doctor said that after the surgery the complainant will be able to walk easily with the help of stick. Dr. Raj Bahadur advised the complainant to walk with the help of stick as a precautionary measure and he should never sit or squat on the floor. He further said that the life of these artificial limbs is limited one for the period from 3 to 6 years maximum and it has shortened the life span of the complainant. The complainant further alleges that all these sufferings and financial losses suffered by him are due to negligence of Dr. Pardeep Aggarwal, opposite party 1, who had falsely opined that bone has been properly united, whereas screws were not fixed properly right from the beginning. The complainant has claimed relief on account of various heads, the detail of which has been given in the complaint.

NOTICE of the complaint was issued and in pursuance of which the opposite parties have put in appearance and filed their respective written reply to the complaint denying the allegations made in the complaint. Dr. Pardeep Aggarwal took up a stand that the complication in the case of the complainant has arisen on account of location and kind of injury suffered by him. The fracture suffered by the complainant was on the neck of femur bone and such type of fracture could be treated by reduction, internal fixation and total hip replacement. Dr. Pardeep Aggarwal took up specific plea that proper treatment was given to the complainant and there is no lapse on this part. The complainant filed replication to the written statements and reiterated the contents of the complaint. The parties led their evidence. The complainant, in order to substantiate his case, entered into witness box and reiterated the contents of the complaint. Dr. Raj Bahadur, who is Professor and Head of Orthopaedic Department, Government Medical College and Hospital, Sector 32, Chandigarh, appeared as an expert witness (C.W. 1). The complainant examined Shri Narinder son of Shri Bhagwana as C.W. 2, who is alleged to have been cultivating the land of the complainant. The complainant also examined his son Shri Ajay Dahiya as C.W. 4, who stated that he had purchased the medicines/articles from the market. The opposite party examined Shri Jugal Kishore as OPW-1, Dr. M.S. Gupta, as OPW-2 and Dr. D.S. Verma, in whose Maternity and Nursing Home surgery of the complainant was performed, as OPW-3. Dr. Pardeep Aggarwal appeared as his own witness as OPW-4.

THE main thrust of the arguments advanced by the complainant is that Dr. Pardeep Aggarwal had failed to give proper treatment, which was required to be given. Had proper treatment been given to the complainant at the initial stage, he would have not gone for second and third surgery. It was argued that Dr. Pardeep Aggarwal has inserted over size screws, which had created pain due to non-union of bone. He has further argued that Dr. Pardeep Aggarwal asked the complainant to purchase certain material which was required for hip replacement but the hip replacement was not done, as Dr. Pardeep Aggarwal was neither competent nor expert for hip replacement and for this reason, he chose to operate the complainant by technique of reduction and internal fixation by using cannulated screws and one screw of over-size was inserted, which had caused pain. Had screws of proper size been inserted, there was no need to remove the same. THE Counsel for the complainant also invited this Commission''s attention to certain documents issued by Dr. Pardeep Aggarwal.

DR. Pardeep Aggarwal, on the other side, admitted that he had performed surgery by technique of open reduction and had given best treatment to the complainant. DR. Pardeep Aggarwal also admitted that over-size screw was inserted and he had himself taken X-rays. He also admitted that total hip replacement was must. Total hip replacement was performed to salvage such complications of femoral neck fracture, as there was non-union. Dr. D.S. Verma, OPW-3, deposed in his affidavit that he alongwith his wife Dr. Geeta is running a Maternity Centre and Nursing Home in Sector 6, Panchkula. Dr. Pardeep Aggarwal had conducted some operation in his Nursing Home and he being an Anaesthetist assisted Dr. Pardeep Aggarwal. This witness also deposed that a sum of Rs. 2,850/- was charged from the complainant under receipt No. 154. Dr. Verma also stated that two types of table are being used for conducting operations. Table manufactured by M/s. ORKO is a specialised table, which is a very sophisticated one and he is having both the tables in his Nursing Home. The surgery on Mr. R.P. Dahiya was performed on a specialised table. It was also come in his statement that there is a portable X-ray machine in his operation theatre and there is no image intensifier in his Nursing Home. This witness also stated that Dr. Lalit Kaushal had assisted Dr. Pardeep Aggarwal in the case of the complainant.

Dr. M.S. Gupta, OPW-2, in his affidavit stated that method of close reduction and screw fixation was best and the same was done in the case of the complainant. He also opined that exact result cannot be achieved during the surgery inspite of best efforts. This witness was also cross-examined and stated that he advised total replacement of hip of the left side and till total hip replacement is done, Mr. R.P. Dahiya should walk with the help of stick.

THE submissions of the Counsel of both sides have been considered by the Commission and the documents placed on record perused. It is pertinent to mention here that Dr. Pardeep Aggarwal, in his certificate dated 8.5.1996, has declared the complainant fit to resume his duties but there is nothing in his report to suffest that before issuing this certificate, he had taken X-ray. It appears that though some X-ray was taken on 7.7.1996 (Annexure A-4), which showed no residual channel of screws and the complainant was advised to walk with the help of crutches. Certificate dated 7.8.1996 (Annexure A-5) reveals the screws removed and the fracture united. Certificate dated 27.8.1996 (Annexure A-6) reveals fracture of neck femur united but there is no mention that this report was given after taking the X-ray.

ON the discharge summary, which was issued by the Medical College and Hospital, Sector 32, Chandigarh, on 5.10.1996 (Annexure A-7), it is mentioned that fracture of neck femur is un-united. As mentioned in the earlier part of the order, Dr. Pardeep Aggarwal himself has taken X-ray and it is an admitted case that one oversize screw was inserted and the X-ray was taken by the doctor at the time of inserting the screws. Had the X-rays been taken by the Radiologist at the time of surgery when the screws were the inserted and thereafter, it would have been detected that some oversize screws have been inserted, which itself is a deficiency on the part of Dr. Pardeep Aggarwal. It is in the statement of Dr. Raj Bahadur that X-rays are to be taken by Radiologist and not by the Surgeon himself. It has also come in the evidence of Dr. Raj Bahadur that to confirm the reduction of fracture during operation, X-ray should be taken both in front and side views and it is difficult to take side view on the operation table unless a good table and a good X-ray machine is available, may be image intensifier. In the Nursing Home of Dr. Verma, in which surgery was performed, there was no image intensifier and there was only a portable X-ray machine. It is pertinent to note here that the procedure of reduction and internal fixation should have been adopted only where X-ray facility is available at the operation table and X-rays are developed by the Radiologist in the absence of image intensifier. Dr. Raj Bahadur has categorically stated that X-ray was to be taken by a Radiologist and not by the Surgeon. Had the X-rays been taken by the Radiologist at the time of first surgery, inaccuracy in the close reduction and fixation could have come to the notice of the Surgeon that there is no alignment and over size screws have been inserted. Dr. Raj Bahadur has also deposed that open reduction'' means exposing fracture site by surgical intervention, reducing both the fragments i.e. to close before your eyes and fixing them together. This witness has further stated that open reduction was not done in the present case and this could be due to lack of professional skill on the part of Dr. Pardeep Aggarwal. Dr. Raj Bahadur has further opined that this being an old case of un-united fracture of neck femur, total hip replacement was the only alternative. He further stated, on the patient''s enquiry that total replacement could be very well saved in case the first operation was done properly. Dr. Raj Bahadur has found the following four major defects in the first operation performed by Dr. Pardeep Aggarwal : (i) Reduction is not good. (ii) Screws are not properly placed. (iii) Thus chances of union from day one are least. (iv) Fracture did not unite.

In view of the above discussions, this Commission has no option but to accept the testimony of expert witness Dr. Raj Bahadur and we hold that there was deficiency in service on the part of Dr. Pardeep Aggarwal in performing first surgery, as he himself had taken X-rays. Had the operation been performed properly, defects could have been detected. As far as awarding of compensation is concerned, Mr. Jugal Kishore has stated that a gentleman had deposited a sum of Rs. 5,000/- for the purchase of material/articles for operation of the complainant and he had supplied the implants to the said person. This witness has denied the suggestion that a sum of Rs. 20,000/- was paid to him, out of which he had returned Rs. 8,000/-. The question for determination is whether the complainant is entitled to the amount spent by him for the purchase of material/articles for hip replacement. To this the answer is in negative for the reason that had the first operation been successful even then the complainant would have incurred expenses on the purchase of the said material/articles. In this view of the matter, the Commission is of the opinion that the complainant is not entitled to the reimbursement of the expenses incurred on hip replacement. The complainant has examined Narinder son of Bhagwana as C.W. 2, who has stated that the complainant has about 20 acres land and the complainant has given one acre land to him for his self cultivation and for that reason, he is also cultivating the remaining land to the benefit of the complainant for the last two years. To this, this witness has not been able to produce any receipt for the wages paid to him by the complainant. Since the complainant has given one acre land to Narinder, he cannot say that he had suffered loss of his earnings from the remaining 19 acres of land. In absence of any proof of loss of agricultural income, we are not inclined to award any compensation to the complainant on this account. The complainant has also not been able to produce any document on record to show that he had suffered professional loss. The compensation sought by the complainant is exaggerated, which is not supported by any documentary evidence. However, we are of the view that the complainant remained under treatment and he must have suffered some professional loss on account of non-attending of his professional duty. In view of the above discussion, we award a total compensation of Rs. 1,25,000/- to the complainant with interest at the rate of 12% per annum from the date of filing of the complaint till its payment on account of pain, sufferings, mental agony, deficiency in service and professional loss. However, there shall be no order as to costs. Since opposite party No. 1 Dr. Pardeep Aggarwal had taken insurance policy from opposite party No. 2-National Insurance Company for professional indemnity, the opposite party Nos. 1 and 2 are jointly and severally liable to pay the amount of compensation to the complainant within one month from the date of receipt of copy of the order. Complaint allowed.