Malposition of Tibial Component after Knee Replacement surgery: Consumer Court Directs Ortho Specialist, Hospital to pay refund, compensation
Jalandhar: Holding the Ortho Specialist and hospital liable for malposition of tibial component of knees after surgery, the District Consumer Disputes Redressal Commission, Jalandhar, Punjab has directed them to pay a refund of the amount spent by the patient for the medical procedure at the treating hospital.
In the judgment dated 20.04.2021, Kuljit Singh, President of the Commission and member Jyotsna further directed the doctor and hospital to pay compensation for mental and physical harassment faced by the complainant including the costs of litigation, within a period of 45 days from the receipt of the order.
"We also observed that in this case principle of res ipsa loquitur is applicable in this case where negligence is evident, principle of res ipsa loquitur operates and complainant does not have to prove anything as the thing prove itself. In this case, no document regarding qualification of the doctor is produced to support of his case that he is qualified to perform his duty," mentioned the Consumer court order.
The case concerned a 78-years-old patient who was suffering from knee problem back in 2016 and consulted the Ortho Specialist at the treating hospital for this purpose. As the treating doctor advised her to undergo knee replacement, she got admitted to the treating hospital and the doctor operated on both her knees on 19.09.2016 and 20.09.2016.
On 25.09.2016, the complainant patient was discharged with advice to exercise for knees at home, which the complainant followed accordingly.
However, as the patient was not feeling well, she again visited the treating hospital and also tried to contact the treating hospital to no avail. Following this, as the pain remained, the patient consulted a second specialist in Amritsar. The second doctor told the complainant that the replacement of her left knee was not proper in angle which was resulting in the tilted shape of the left leg.
Following this, she consulted another doctor in a hospital in Delhi and the doctor told her that her left knee would have to be replaced again. In pursuance, she got admitted to the second hospital and was operated on by the doctor in Delhi on 08.12.2016. The operation was successful and the patient felt relief and became able to walk again. The doctor at the Delhi hospital also informed the complainant that her second knee would also have to be replaced within a short period of time.
Alleging medical negligence against the treating doctor and hospital in Jalandhar, the complainant claimed that due to negligence, the treating doctor had not properly fixed the knee in the bones and they were badly damaged. As a result, the complainant had to undergo another knee transplant costing around Rs 5,70,000 along with Rs 2 lakh- the expenses to travel to Delhi along with attendant.
Thus, the complainant prayed before the Commission to direct the treating doctor to refund Rs.8,70,000/- to the complainant i.e. Rs.3 lakh received from the complainant and Rs.5,70,000/- which she has paid to the Delhi hospital with interest @18%.
On the other hand, the treating doctor and hospital denied all the allegations and submitted that the consent of the complainant was taken for the specialized procedure which was duly signed by the son of the complainant. It was also informed regarding the package information that the package did not include blood or blood products, transfusion fee, VAT and treatment of any other complications arising during the period like cardiac, kidney, infection, bleeding, Neurological, Chest or any reason for stay beyond six days.
Mentioning that proper care of the patient was taken and that the patient was discharged in walking condition, also focusing on the vast experience and success rate of the treating doctor, the counsel for the doctor prayed for the dismissal of the complaint.
The complainant submitted the affidavit by the complainant herself, affidavit of the two other doctors in Amritsar, among other documents. On the other hand, the treating doctor and hospital submitted the affidavit by the treating doctor and a copy of the patient medical record.
After listening to all the contentions by both the sides and by looking at the entire record, the Commission observed that the document issued by the treating hospital mentioned the amount of Rs 3 lakh spent by the patient at the treating hospital.
The Commission also opined that the complainant had to consult a second doctor because the knee replacement by the treating doctor was not successful.
Looking at the affidavit by the Amritsar-based doctor, the Commission observed, "Complainant's knee tibial component was malpositioned due to which she was having pain and problems in walking. After examining the complainant, prescribed some medicines and also adviced her to get further operated upon her knees for permanent solution of her problem."
Another doctor in Amritsar, who is a senior consultant at the Department of Orthopedics & Joint Replacement Surgery, in a Amritsar-based Private hospital. The doctor mentioned that, "upon examining complainant's knee, came to know that her knees tibial component was malpositioned due to which she was having pain and problems in walking. After examining the complainant, prescribed some medicines and also advised her to get further operated upon her knees for the permanent solution of her problem."
The Commission referred to several judgments by the Apex Court to determine the medical negligence against a doctor. The judgments included Nizam Institute of Medical Sciences vs. Parasnath S. Dhananka & Ors, Savita Garg vs. Director National Heart Institute reported, etc.
After perusing the definition of medical negligence from the above mentioned judgments, the Commission stated,
"Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do."
"The treatment given to patient by doctor based on liability of medical practitioner. There is an unwritten contract between the two. Patient entrust himself to doctor that doctor agrees to do his best at all times for patient. Such doctor-patient contract is almost always an implied contract except when written informed consent is obtained," observed the Commission.
Further referring to the Supreme Court judgment in Dr. P.B Desai vs. State of Maharashtra, and V. Krishnakumar versus State of T.N, the Commission mentioned,
"This citation proves that the patient taken the treatment from doctor on good faith that he has done his duty in a very good manner and to do his best, at all times for patient. If doctor fails to perform his duty during treatment then he is liable for medical negligence."
Further applying the principle of res ipsa loquitur, the judgement mentioned,
"We also observed that in this case principle of res ipsa loquitur is applicable in this case where negligence is evident, principle of res ipsa loquitur operates and complainant does not have to prove anything as the thing prove itself. In this case, no document regarding qualification of the doctor is produced to support of his case that he is qualified to perform his duty."
Thus, finding the treating Ortho Specialist and hospital guilty of medical negligence, the Commission directed them to make a refund of the Rs 3 lakh spent by the Complainant for knee replacement and pay Rs 7000 as compensation for mental harassment and physical harassment faced by the complainant including the cost of litigation. The treating doctor and hospital have been directed to further deposit Rs 3,000 as costs in the Consumer Legal Aid Account maintained by the Commission.
To view the original order, click on the link below.
https://medicaldialogues.in/pdf_upload/medico-legal-new-151808.pdf
