STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,

CHANDIGARH.

Misc. Application No.1491 of 2018

In/and
Consumer Complaint No.65 of 2013

Date of institution : 14.06.2013

Reserved on : 03.10.2018
Date of decision : 25.10.2018

Mrs. Urmil Chopra w/o Mr. K.R. Chopra, r/o 1327, Sector-21,
Panchkula, Haryana.
…….Complainant
Versus

1. Fortis Healthcare (India) Limited through Executive Chairman,

Escorts Heart Institute & Research Centre, Okhla Road, New
Delhi-110025.
2. Fortis Healthcare (India) Limited through Executive Director,
Escorts Heart Institute & Research Centre, Okhla Road, New
Delhi-110025
3. Fortis Hospital, Sector 62, Phase-VIII, Mohali, Punjab-160062
4. Dr. Harsimran Singh, Fortis Hospital, Sector 62, Phase-VIII,

Mohali, Punjab-160062

5. Dr. Atul Joshi, General Surgeon, Fortis Hospital, Sector 62,

Phase-VIII, Mohali, Punjab-160062.
……..Opposite Parties

Consumer Complaint under Section

17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon’ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member

Present:-

For the complainant : Shri Mayank Wadhwa, Advocate

and Shri K.R. Chopra, Authorised
Representative.
For the opposite parties: Shri Munish Kapila, Advocate.
Consumer Complaint No.65 of 2013 2

JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:

M.A. No.1491 of 2018:

This is an application for placing on record laboratory reports of

cultures and blood tests, which is supported by an affidavit of Dr.

Harsimran Singh, opposite party No.4. Reply to the same has also

been filed by the complainant.

2. Allowed as prayed for subject to all just exceptions in the

interest of justice.

Main Case:

3. The complainant, Urmil Chopra, who is a 76 years old lady,

has filed this complaint under Section 17(1)(a)(i) of the Consumer

Protection Act, 1986 (in short, “C.P. Act”) for issuance of following

directions to the opposite parties:-

a) to award `17,13,729/- to the complainant, as

compensation by way of medical expenses;

b) to award `70,00,000/- to the complainant, as

compensation, by way of pain, suffering, mental agony and

harassment;

c) to award `5,00,000/-, as compensation, by way of

dearness allowance for the inconvenience and expenses

caused to the family and relatives of the complainant;

d) to award cost of present complaint to the complainant; and

e) to pass such order as this Commission may deem fit and

proper in the facts and circumstances of the present case.

4. “We have not lost faith, but we have transferred it from God to

medical profession.” …George Bernard Shaw.

Consumer Complaint No.65 of 2013 3

5. A common man treats doctor as God on the earth. One has

tremendous faith in one’s heart in the doctor. When one approaches

a doctor, he completely surrenders to him/her. For this reason,

medical professionals should shoulder their responsibilities with all

care and caution to strengthen the doctor-patient relationship.

Facts of the Complaint:

6. Brief facts, as averred in the complaint, are that the

complainant after consulting Dr. Harsimran Singh-opposite party

No.4 with regard to her knee problem got admitted on 19.5.2011 in

opposite parties Nos.1 to 3-Hospital for knee replacement operation

of both her knees, which was conducted on 20.5.2011 by opposite

party No.4 in opposite parties Nos.1 to 3-Hospital. The total cost of

the entire operation and other miscellaneous costs was about

`3,80,250/-. The complainant also spent an additional amount of

`2,000/- on her medicines and the follow up treatment. The

complainant was kept under observation for one week and was

discharged on 26.5.2011. As per the advice of opposite party No.4

the complainant continued regular follow-ups with the opposite

parties. It is further averred that the complainant was suffering from

continuous severe and acute pain after the above said operation was

conducted. She repeatedly complained of the same to opposite

parties Nos.4 and 5, who informed her that since the operation was

done recently, the pain was normal and she should bear the pain for

some time. After a few weeks, the pain in the left knee of the

complainant subsided gradually but the pain in the right knee

Consumer Complaint No.65 of 2013 4

continued and escalated since the operation. In the month of August

2011 redness was seen on the right knee of the complainant and

she was suffering with acute pain in the same. Immediately on

13.8.2011 the complainant visited opposite parties Nos.1 to 3-

Hospital and consulted opposite party No.4, who asked her to

consult Dr. Atul Joshi, General Surgeon-opposite party No.5. After

consultation it was discovered to the utter surprise and dismay of the

complainant that infection had developed in her right knee. After test

reports, it was observed that there was abscess/pus formation in the

right knee, which was removed three times. However, even after the

removal of abscess/pus thrice from the right knee of the

complainant, it sill continued to form and there was a lot of swelling

in the right knee. The complainant was on complete rest due to the

severity of pain and infection. It is further averred that on 2.9.2011

the complainant again consulted opposite parties Nos.4 and 5 and

she was immediately admitted in opposite parties Nos.1 to 3-

Hospital on the same day, where she was operated on 3.9.2011.

During that operation abscess/pus was flushed out from the right

knee of the complainant and she was discharged on 8.9.2011. An

amount of `81,017/- was charged by the opposite parties from the

complainant; besides additional amount of `12,870/- was spent on

medicines. The infection continued to grow in the right knee of the

complainant even after second operation and had spread to the

bone of the complainant. The abscess/pus formation in the right

knee continued and the complainant had no choice but to have

Consumer Complaint No.65 of 2013 5

regular follow-ups with the opposite parties. It is further averred that

since the condition of right knee kept on deteriorating and since the

pain, redness and abscess/pus continued to grow in her right knee,

the complainant was again admitted in opposite parties Nos.1 to 3-

Hospital on 19.10.2011. The complainant was operated for the third

time on 20.10.2011 and the artificial knee was removed after five

months of the first operation due to negligence and carelessness of

the opposite parties during first operation. Due to gross negligence,

professional misconduct and non-expertise of the opposite parties in

the common medical procedures the opposite parties failed to

perform the first operation on the complainant properly due to which

infection cropped up in her right knee in the first phase and

subsequently after five months of pain and vigour, the right knee had

to be removed. The opposite parties not only failed to treat the

infection but worsened her condition; as a result the complainant

remained completely bed ridden during all that period and suffered

acute pain, mental agony and trauma. The complainant remained

admitted in opposite parties Nos.1 to 3-Hospital for about 8-9 days

for that operation and was discharged on 28.10.2011. She was

again charged a sum of `1,78,818/- by the opposite parties and

she further spent additional amount of `1,10,752/- towards various

medicines and tests. It is further averred that in spite of the third

operation performed by the opposite parties on 20.10.2011 the

infection had still not healed and continued to spread in the right

knee even after removal of the artificial knee. After consultation,

Consumer Complaint No.65 of 2013 6

opposite party No.4 asked the complainant to consult a Plastic

Surgeon for the continuing infection. It is further averred that on

20.12.2011 i.e. after almost 7 months of the first operation, the

complainant got admitted in Sir Ganga Ram Hospital where surgery

was performed on 21.12.2011 and she was discharged on

30.12.2011. Admission slip of the complainant categorically states

that she came with excessive infection in her right knee due to knee

replacement surgery and the infection along with abscess was

flushed out of the right knee during that operation. Even in the

opinion of the experts of the said Hospital they had never seen such

a spoilt case in a routine procedure that the complainant underwent

and suffered. The complainant had to spend another amount of

`2,15,775/- for that operation and additional amount of

`2,37,428/- on the follow up treatment and medicines. It is further

averred that after the aforesaid operation where the infection was

flushed out, the complainant had to undergo one more operation

during which the artificial knee removed by the opposite parties, was

transplanted again in the right leg of the complainant. Instead of

having just one surgery, the complainant had to undergo five

operations and also had to suffer the pain and mental agony for

more than year, whereas had the opposite parties performed their

duties and provided the service with utmost care and

professionalism which reflects in their billing, the complainant would

have recovered and would have been leading a normal life after

undergoing the operation. It is further averred that on 24.4.2012 the

Consumer Complaint No.65 of 2013 7

complainant was admitted to Sir Ganga Ram Hospital for the final

surgery whereby the right knee was again transplanted and after that

operation the complainant’s one year long ordeal came to an end.

The complainant had to spend another amount of `4,75,635/- and

additional amount of `19,200/- on medicines and follow up. It is

further averred that the opposite parties did not take proper care at

the time of operating the complainant and due to their carelessness

and negligence a fungal infection developed in the complainant’s

right leg. Not only this, the opposite parties were also unable to

detect the kind of infection that the complainant had developed in her

leg. In spite of the fact that the complainant was under constant

supervision of opposite party No.4 and later opposite party No.5,

they could not treat the infection and further not even bothered to

inform her that if the infection did not heal, it would have led to

amputation or permanent straightening of the leg. The complainant

in total had 5 operations due to the negligence of the opposite

parties in the first place and had to incur a total expense of

`17,13,729/- on the medical treatment besides other miscellaneous

expenses incurred by her under various other heads. She also

suffered pain, suffering, mental agony and harassment for which no

monetary amount can be affixed. The complainant served a legal

notice dated 21.7.2012 upon the opposite parties for reimbursement

of the medical bills and compensation under various heads but they

did not reply it. Hence the present complaint alleging deficiency in
Consumer Complaint No.65 of 2013 8

service and medical negligence on the part of the opposite parties

for issuance of above mentioned directions to them.

Defence of Opposite Parties:

7. Upon notice opposite parties appeared and filed joint written

statement taking preliminary objections to the effect that the

complaint is a flagrant abuse of the process of law and has been

filed in order to harass, malign and blackmail the opposite parties.

The complainant has not produced any documentary or expert

evidence to prove that there was any negligence on the part of the

opposite parties. The complaint is bad for non-joinder of necessary

parties inasmuch as Sir Ganga Ram Hospital has not been

impleaded as a party in the complaint. The complainant has not

approached this Commission with clean hands and has distorted the

material facts with a view to mislead this Commission, which would

show that the complainant had always been promptly attended to in

line with the standard practice. With regard to the facts of the case it

is averred that the complainant had come to opposite party No.4 on

12.4.2011 and 9.5.2011 with pain and swelling in both knees since

10 years which was associated with difficulty in walking and climbing

stairs. She was having osteoarthritis of both knees and was advised

Bilateral Total Knee Replacement (in short, “TKR”). Osteoarthritis

results into wear and tear of joints with age, which further results in

pain, stiffness and deformity. In TKR worn out surfaces of knee joint

are removed and replaced with implants called prosthesis resulting

improving quality of life and decreasing pain. The complainant was

Consumer Complaint No.65 of 2013 9

admitted in opposite parties Nos.1 to 3-Hospital on 19.5.2011 for

undergoing TKR and after having been explained everything

including risks and complication of TKR including risk of infection, a

written consent was obtained from her. On 20.5.2011 the

complainant underwent TKR surgery conducted by opposite party

No.4 as per standard norms. The Orthopaedic Operation Theatres

are equipped with laminar flow apparatus and are subjected to

regular disinfection and routine cultures. Moreover, same set of

instruments were used for both the knees which were duly sterilized

and the knee implant came in a pre-sterilized kit. After surgery the

complainant was kept in the Ortho ICU for two days and then in the

Ward for four days wherein complete protocols pertaining to infection

control were followed till she was finally discharged. It is further

averred that post operative the complainant had normal wound

healing with no signs of soakage/discharge or fever was noted. The

complainant started walking with a walker within 48 hours of her

surgery. The walking distance was increasing as expected. The

complainant complained of pain and stiffness especially at night but

never had more than mild pain on walking. Her symptoms were

similar on both the knees and were in accordance with the usual

recovery period required for healing and while walking the patient

took equal weight on both knees. She was discharged on 26.5.2011

in a stable condition. Thereafter her sutures were removed at

routine time of 2 weeks. The wounds of both knees had healed

normally by that time. The healing was similar in both knees and
Consumer Complaint No.65 of 2013 10

there was no evidence of any infection or delay in healing of either

knee. It is further averred that more than 2 months after surgery on

13.8.2011 the complainant approached opposite party No.4 with

sudden onset of a small (2cm x 2cm) erythematous (reddish)

swelling on the inner aspect of right knee distal to the joint line. The

complainant at that time had no noticeable effusion (diffuse,

generalized swelling) of the joint. She was walking with a stick. She

did not have any fever and the swelling was only at one side and that

too distal to the joint line, which pointed that the swelling was

superficial. The patient (complainant) was informed that clinically

there was nothing to suggest that underlying joint was infected.

However, superficial infections may spread and for that reason

immediately opposite party No.5 was consulted, who clinically

diagnosed it as cellulitis just below the right knee and promptly put

the complainant on anti-biotic. USG done on both knees on

20.8.2011 showed similar amount of joint fluid in both the knees and

in addition 3.00 cm x 1.2 cm localized fluid collection deep to the

subcutaneous tissue on the anteromedial aspect of upper tibia (inner

side of knee distal to the joint line), which corroborated the clinical

diagnosis of a soft tissue infection. In the meantime the complainant

was managed with dressings and antibiotic. She had been followed

up regularly in the OPD. It is further averred that treatment of

superficial infections in the setting of knee replacement consists of

antibiotic therapy with or without a localized incision and drainage

(I&D). However, the treatment approach is different in deep

Consumer Complaint No.65 of 2013 11

infections (deep to the joint capsule including those involving the

metallic prosthesis) wherein the treatment consists of removal of the

knee implant and debridement in the first stage and re-implantation

of the prosthesis in the second stage after the infection had

subsided. Since in the case of the complainant the clinical picture

and USG were suggestive of a superficial infection, there was no

need for a radical surgery in the form of 2-stage revision knee

replacement at that stage. In the ensuing days, the soft tissue

abscess developed a pus point superficially. Immediately aspiration

of the pus was done and pus was sent for culture sensitivity, which

later reported sterile. Notably the swelling and redness were still

confined to small area. Opposite party No.5 came in contact with the

complainant when she was sent for a general surgery consultation

by opposite party No.4 and not prior to it, as is being conveyed in the

complaint. Opposite party No.5 was not part of the team, who

performed TKR. It is further averred that since complainant’s

localized abscess was not resolving with over two weeks of anti-

biotic therapy and dressings, opposite party No.4 decided to perform

an incision and drainage in OT. I & D is a surgery wherein an

incision of 2 cm was given over the soft tissue abscess and it was

drained and washed. The surgery was performed by opposite party

No.4 and the same lasted 15 minutes. Intra-operatively it was found

that the abscess extended till the underlying leg bone. However,

there was no communication with the underlying knee joint and the

knee joint was never opened in that surgery. Post operatively broad
Consumer Complaint No.65 of 2013 12

spectrum IV antibiotic was given followed by oral antibiotic on

discharge. C-reactive protein levels in blood tests (markers of

inflammation/infection) started decreasing after I & D, which has

been documented in the Investigation Flow Chart Sheet. After I&D

the wound showed signs of healing and the discharge stopped.

However, about a week after I&D, the discharge reappeared. Serial

bacterial cultures were done but were always sterile. Thereafter the

complainant underwent daily dressings under the supervision of

opposite party No.4. The complainant used to walk around

comfortably from the Hospital entrance to the dressing room. The

complainant was regularly asked about any pain on walking to which

she replied in negative. Hence the allegation that she was

bedridden after surgery is false; rather, she was walking comfortably

after surgery, as is apparent from Annexure C-4 (page 142 of the

complaint), which is as per history given by the complainant to the

Doctors of Sir Ganga Ram Hospital. It is further averred that since

the wound discharge was not resolving despite anti-biotic and

dressings, the complainant was encouraged to take a second

opinion. Opposite party No.4 arranged consultation with Prof.

Ramesh K. Sen at PGIMER, Chandigarh. The complainant was

examined by Dr. Sen and his team, who advised repeating bacterial

cultures after stopping anti-biotic for a week and told that the same

treatment as given by opposite party No.4 should be continued.

However, the wound discharge showed an increase in amount and

also the nature of discharge became thin and watery, which

Consumer Complaint No.65 of 2013 13

suggested that the abscess had eroded into the joint capsule and led

to a communication with the knee joint resulting leakage of synovial

fluid along with discharge. That implied an underlying communication

and infection of the knee plant. Therefore, the decision to remove

the right knee implant was taken. A revision knee replacement in the

setting of infection as in the case of complainant is done in two

stages. In the first stage the main aim is to eradicate infection.

During this stage all the foreign material, which means the implant

and the cement is removed and all visible infective tissue is excised

and cleaned. In place of the implant an anti-biotic spacer is inserted

which can elute anti-biotic to control the infection. Once infection is

controlled the next stage involves insertion of new implant. In order

to undergo debridement and implant removal, the complainant was

admitted in opposite parties Nos.1 to 3-Hospital on 19.10.2011 and

the right knee debridement with implant removal was done on

20.10.2011 and antibiotic loaded cement spacer was inserted. Only

after insertion of the cement spacer the complainant was advised to

do bed rest. Therefore, the impression which the complainant is

trying to convey implying as if she had been on bed rest after her

TKR surgery conducted in May 2011 is absolutely incorrect and on

the contrary she was walking comfortably after TKR. However even

after removing the implants, the wound discharge began after a

period of one week. The complainant was told that more than one

debridement (wound cleaning) is often needed in similar cases and

that a new knee implant could not be inserted till infection subsides
Consumer Complaint No.65 of 2013 14

completely. However by that time the complainant was taking

several other opinions of her own and started getting irregular with

dressings and was not interested in continuing treatment with

opposite parties. Even in Sir Ganga Ram Hospital another

debridement was done on 21.12.2011, which was followed by TKR

revision Stage-II on 25.4.2012. It is further averred that TKR surgery

was conducted in opposite parties Nos.1 to 3-Hospital by opposite

party No.4 and after more than two months of the surgery the

complainant developed cellulitis for which she was immediately put

on antibiotic. As it evolved into a soft tissue abscess I&D procedure

was also conducted. As the knee joint was involved/infected the

prosthesis of complainant was removed and antibiotic spacer was

placed. Therefore, a known and established procedure was

followed. There was no deviation whatsoever in the procedure

conducted and it is also not the case of the complainant that there

was any deviation whatsoever. It is further averred that Dr.

Harsimran Singh-opposite party No.4 is a Graduate of All India

Institute of Medical Sciences and he has done his Post Graduation in

MS Ortho from PGIMER, Chandigarh. He has done his M.Ch.

(Ortho) from University of Dundee, Scotlant, U.K. He has performed

over 4300 joint replacement surgeries in Fortis Hospital, Mohali over

the past five and a half years. Dr. Atual Joshi-opposite party No.5 is

MS (PGI) and Fellow Minimal Access Surgery. Thus, both opposite

parties Nos.4 and 5 are well qualified in their respective fields.

Reference to a number of judgments of Hon’ble Supreme Court and

Consumer Complaint No.65 of 2013 15

Hon’ble National Commission has been made. On merits, the

admission of the complainant in opposite parties Nos.1 to 3-Hospital

and her treatment by opposite parties Nos.4 and 5 has been

admitted. It is averred that a knee replacement surgery is amongst

the most successful of all orthopaedic procedures. It has proven to

significantly enhance the quality of an arthritis patient. However, a

number of possible complications have been well defined in the

medical literature including but not limited to infection. The metallic

implant that is inserted can become a focus of infection either soon

after surgery or within period of months or years thereafter for any

reason. The risk of such an event varies between 0.5% and 2% in

most medical series. Therefore, TKR comes with its own set of

complications. Opposite parties Nos.4 and 5 did everything that

would be expected from a medical professional in trying to contain

the soft tissue infection. Even in the most developed countries of the

West which have inherently low bacterial flora in the environment,

infection after TKR is a well known and well accepted complication.

In own series of over 4300 joint replacements performed by opposite

party No.4 over the period of 5 years infection rate has been less

than 1%. Merely occurrence of a known complication after knee

replacement cannot be construed as negligence. All the averments

made in the preliminary objections have been reiterated. Denying

the other averments of the complaint and denying any deficiency in

service and medical negligence on the part of the opposite parties a

prayer for dismissal of the complaint was made.

Consumer Complaint No.65 of 2013 16

Evidence of the Parties:

8. In order to prove her complaint, the complainant filed her own

affidavit as Ex.C/A and affidavit of her husband; namely, Shri K.R.

Chopra as Ex.C/B. She also tendered documents i.e. copies of bills

along with discharge summary pertaining to operation on 20.5.2011

as Ex.C/1 (Colly), copies of bills along with discharge summary

pertaining to operation on 3.9.2011 as Ex.C/2 (Colly), copy of bill

dated 28.10.2011 as Ex.C/3, copy of bill dated 29.10.2011 as

Ex.C/4, copy of bill dated 5.11.2011 as Ex.C/5, copy of bill dated

6.11.2011 as Ex.C/6, copy of bill dated 8.11.2011 as Ex.C/7, copy of

bill dated 9.11.2011 as Ex.C/8, copy of bill dated 11.11.2011 as

Ex.C/9, copy of bill dated 13.11.2011 as Ex.C/10, copy of bill dated

14.11.2011 as Ex.C/11, copy of bill dated 16.11.2011 as Ex.C/12,

copy of bill dated 18.11.2011 as Ex.C/13, copy of bill dated

28.10.2011 as Ex.C/14, copy of bill dated 29.11.2011 as Ex.C/15,

copy of discharge summary dated 28.10.2011 as Ex.C/16, copy of

bill dated 28.10.2011 as Ex.C/17, copy of receipt dated 28.10.2011

as Ex.C/18, copy of bill dated 28.10.2011 as Ex.C/19, copy of bill

dated 28.10.2011 as Ex.C/20, copy of complete summary of the bills

and expenses as Ex.C/21 (Colly), copy of bill dated 30.4.2012 as

Ex.C/22, copy of bill dated 1.5.2012 as Ex.C/23, copy of bill dated

5.5.2012 as Ex.C/24, copy of bill dated 5.5.2012 as Ex.C/25, copy of

bill dated 5.5.2012 as Ex.C/26, copy of bill dated 29.12.2011 as

Ex.C/27, copy of bill dated 31.12.2011 as Ex.C/28, copy of bill dated

2.1.2012 as Ex.C/29, copy of bill dated 5.1.2012 as Ex.C/30, copy of

Consumer Complaint No.65 of 2013 17

bill dated 6.1.2012 as Ex.C/31, copy of bill dated 7.1.2012 as

Ex.C/32, copy of bill dated 9.1.2012 as Ex.C/33, copy of bill dated

10.1.2012 as Ex.C/34, copy of bill dated 11.1.2012 as Ex.C/35, copy

of bill dated 17.1.2012 as Ex.C/36, copy of bill dated 13.1.2012 as

Ex.C/37, copy of bill dated 14.1.2012 as Ex.C/38, copy of bill dated

14.1.2012 Ex.C/39, copy of bill dated 15.1.2012 as Ex.C/40, copy of

bill dated 18.1.2012 as Ex.C/41, copy of bill dated 17.1.2012 as

Ex.C/42, copy of bill dated 17.1.2012 as Ex.C/43, copy of bill dated

18.1.2012 as Ex.C/44, copy of bill dated 20.1.2012 as Ex.C/45, copy

of bill dated 20.1.2012 as Ex.C/46, copy of bill dated 21.1.2012 as

Ex.C/47, copy of bill dated 21.1.2012 as Ex.C/48, copy of bill dated

21.1.2012 as Ex.C/49, copy of bill dated 30.1.2012 as Ex.C/50, copy

of bill dated 4.2.2012 as Ex.C/51, copy of bill dated 10.2.2012 as

Ex.C/52, copy of bill dated10.2.2012 as Ex.C/53, copy of bill dated

10.3.2012 as Ex.C/54, copy of bill dated11.3.2012 as Ex.C/55, copy

of bill dated 13.3.2012 as Ex.C/56, copy of bill dated 8.4.2012 as

Ex.C/57, copy of bill dated 12.4.2012 as Ex.C/58, copy of bill dated

21.4.2012 as Ex.C/59, copy of summary of bills as Ex.C/60 (Colly),

copy of bill dated 20.11.2011 as Ex.C/61, copy of bill dated

1.10.2011 as Ex.C/62, copy of bill dated 5.10.2011 as Ex.C/63, copy

of bill dated 12.10.2011 as Ex.C/64, copy of bill dated 18.10.2011 as

Ex.C/65, copy of bill dated 19.11.2011 as Ex.C/66, copy of bill dated

19.11.2011 as Ex.C/67, copy of bill dated 24.11.2011 as Ex.C/68,

copy of bill dated 26.11.2011 as Ex.C/69, copy of bill dated

24.11.2011 as Ex.C/70, copy of bill dated 25.11.2011 as Ex.C/71,

Consumer Complaint No.65 of 2013 18

copy of bill dated 25.11.2011 as Ex.C/72, copy of total summary as

Ex.C/73, copy of bill dated 30.4.2012 as Ex.C/74, copy of bill dated

1.5.2012 as Ex.C/75, copy of bill dated 5.5.2012 as Ex.C/76, copy of

bill dated 5.5.2012 as Ex.C/77, copy of bill amounting to Rs.4,473/-

as Ex.C/78, copy of discharge summary dated 30.12.2011 as

Ex.C/79, copy of bill dated 30.12.2011 as Ex.C/80, copy of discharge

summary dated 5.5.2012 as Ex.C/81, copy of bill dated 5.5.2012 as

Ex.C/82, copy of bill dated 24.4.2012 as Ex.C/83, copy of legal

notice dated 21.7.2012 as Ex.C/84, copy of receipts as Ex.C/85,

copy of proof of delivery as Ex.C/86, copy of the certificate of fungal

infection by Dr. O.N. Nagi as Ex.C/87, copy of discharge summary

dated 30.12.2011 as Ex.C/88, copy of test results dated 5.1.2012 as

Ex.C/89, copy of investigation results dated 20.12.2011 as Ex.C/90

(Colly). On the other hand, the opposite parties tendered in

evidence affidavits of Dr. Harsimran Singh, Director, Orthopedics-

opposite party No.4 as Ex.OPA, Abhijit Singh, Facility Director, Fortis

Hospital, Mohali as Ex.OPB and Dr. Atul Joshi-opposite party No.5

as Ex.OP-C. They also tendered documents i.e. copy of

authorization for and consent to operation, administration of

anaesthesia and environmental monitoring as Ex.OP-1/1, copyof

operation notes as Ex.OP-1/2, copy of environmental monitoring as

Ex.OP-1/3, copy of sterilization record as Ex.OP-1/3A, ultrasound

report as Ex.OP-1/4, copy of report dated 29.8.2011 as Ex.OP-1/5,

copy of operation notes as Ex.OP-1/5A, copy of investigation flow

chart as Ex.OP-1/6, copy of report dated 5.9.2011 as Ex.OP-1/7

Consumer Complaint No.65 of 2013 19

(nine sheets) (colly), copy of operation notes as Ex.OP-1/8, copy of

authorization for and consent to operation, administration of

anaesthesia and procedures as Ex.OP-1/9, copy Campbell’s

Operative Orthopedics as Ex.OP-1/9A, copy of medical literature as

Ex.OP-1/10, copy of incidence of deep prosthetic infections in a

specialist orthopedic hospital as Ex.OP-1/10-A, copy of report of

PGI, MR, Ex.OP-1/11, copy of letter dated 8.1.2016 as Ex.OP-1/11A,

copy of opinion of GMCH as Ex.OP-1/11B (with envelop forwarding

letter and expert medical report and letter No.GMCH/Ortho/16/228

dated 5.2.2016, copy of stickers as Ex.OP-1/12.

9. We have carefully gone through the averments of both the

parties and the evidence produced by them in support of their

respective averments. We have also heard learned counsel for both

the sides.

Contentions of the Parties:

Complainant:

10. The learned counsel for the complainant vehemently

contended that the complainant visited the opposite parties in April,

2011 with knee pain and was advised with total knee replacement

surgery. The complainant under the advice and treatment of

opposite parties and particularly opposite party No.4 got admitted in

opposite parties Nos.1 to 3-Hospital on 19.5.2011. The total knee

replacement surgery was performed on the complainant-patient on

20.5.2011 by the opposite parties and the complainant was

discharged from the said Hospital on 26.5.2011. The total cost of the
Consumer Complaint No.65 of 2013 20

said operation was `3,80,250/-. Apart from the same, the

complainant further spent money on the follow up medication, as

was advised and prescribed by the opposite parties. Thereafter, the

complainant felt severe discomfort and swelling in her right knee and

visited the opposite parties on 13.8.2011. The complainant had

been following up with the opposite parties after the aforesaid

surgery.

11. The learned counsel further contented that no action was taken

by the opposite parties upon the visit of the complainant and it was

only as late as 29.8.2011 (i.e. after 15 days), the opposite parties

chose to conduct tests to examine the swelling wherein abscess had

formed. The opposite parties at that time simply drained the abscess

from the right knee without examining it any further. Another

procedure was conducted on the complainant on 2.9.2011 whereby

the abscess was again drained out from the right knee of the

complainant. The complainant was informed by the opposite parties

that even though there was abscess formation and the same was

even drained from the knee however, no infection has been found by

the opposite parties and there was nothing serious and the

complainant should not worry.

12. Learned counsel for the complainant further contended that the

complainant though remained in severe pain since August, 2011 and

still believed the assurances given by the opposite parties. She had

been under their treatment for long and continued with the advice

and treatment of the opposite parties including opposite party No.4.

Consumer Complaint No.65 of 2013 21

The complainant continued to suffer severe discomfort, swelling and

redness in her right knee. The abscess formation continuously

persisted and recurred. The said fact has been admitted by opposite

party No.4 in his cross examination that the abscess was recurring.

The complainant was charged nearly `1,00,000/- for that procedure

apart from the follow up expenses and medicines. It continued till

October, 2011. The opposite parties always gave assurance that

there was no infection in the knee despite the fact that the abscess

formation was recurring time and again. There were no signs of

healing. The complainant was in the hands of the opposite parties

and had been diligently perusing the follow up treatment. In October,

2011 the complainant was again admitted in the hospital for removal

of abscess from the right knee, however, during the procedure

opposite party No.4 came out of the O.T. and sought a waiver (NOC)

from the family of the complainant to remove the implant from the

right knee, as it was found that the abscess had gone deep into the

bone of the complainant. The complainant was again operated on

20.10.2011 and the implant was removed from her right knee where

the infection had occurred. The complainant and the family had no

option but to give the consent as she was on operation table in OT.

Opposite Party No.4 had informed that the implant had to be

removed.

13. It was further contended that the opposite parties even after

the said surgery maintained that there was no infection

found/detected in the right knee, at that stage, the complainant and

Consumer Complaint No.65 of 2013 22

her family had lost complete faith in the working ethics and efforts of

the opposite parties. The opposite parties charged nearly `3,00,000/-

from the complainant for the removal of implant and follow up

treatment and medicines cost.

14. It was further contended that the complainant continued her

follow up with the opposite parties, but also started seeking second

opinion from other hospitals/doctors. It was only then discovered that

there were several lapses on the part of the opposite parties, as

proper tests were not carried out. There was infection since the

abscess formation was recurring and repeatedly drained off by the

opposite parties. It is an admitted fact and also admitted in cross

examination. However, the opposite parties maintained that there

was no infection even though the condition of the patient was

deteriorating in front of their eyes every single day.

15. It was further contended that if there would have been no

infection, there was no cause or occasion for the abscess to recur

and further the swelling would have also improved however, the

condition of the patient had been worsening with the passage of time

till she remained with the opposite parties. The complainant was also

made to spend a substantial amount on every follow up and alleged

mode of treatment which was evidently a sham by the opposite

parties, as they continued to maintain that there was no infection up

until the end of November, 2011.

16. It was further contended that the complainant finally shifted to

Sir Ganga Ram Hospital, New Delhi, in December, 2011 after

Consumer Complaint No.65 of 2013 23

seeking opinion in the end of November, 2011. Another surgery was

performed at Sir Ganga Ram Hospital, New Delhi, on 20.12.2011 on

the right knee and the infection was flushed out. On examination of

the flushed out material it was found that it was fungal infection. The

opposite parties had specifically stated the fact that similar

procedure was conducted by them, as it was done at Sir Ganga Ram

Hospital which itself determines and establishes the fact that the

infection was very much present and the entire defence of the

opposite parties is a cover up in the matter. However, due to

negligent and improper recourse to cure the patient opposite parties

failed to detect infection. As the opposite parties could not detect the

infection which was present due to negligence and deficiency in

service on their part.

17. It was further contended that the opposite parties have stated

that only one test was repeatedly done by them to identify the

infection, however, even after repeated tests the infection was not

detected by them. The said fact again shows negligence and

deficiency in service on their part, as the infection existed in the knee

of the complainant. The infection was detected and cured in the

surgery conducted at Sir Ganga Ram Hospital, New Delhi, within a

span of 2 weeks. The complainant remained under treatment of the

opposite parties from August, 2011 to November, 2011 and

admittedly the opposite parties could not detect the infection which

was recurring time and again.

Consumer Complaint No.65 of 2013 24

18. It was further contended that the expert report on record of

complaint would show that the same is biased to say the least. The

medical evidence on record of the present case has not been

considered. The patient remained under the treatment of the

opposite parties for over a period of 6 months but infection could not

be detected. The opposite parties have failed to explain, how

immediately after leaving opposite parties Nos.1 to 3-Hospital the

infection was detected and cured. Thus, the same creates serious

doubts on the veracity of the report submitted.

19. It was further contended that opposite party No.4 has

specifically stated that the said infection normally occurs near an

open wound. It is for the Doctor and the Hospital to treat the

complainant and explain why they could not detect the infection?

Who were responsible for it? The wound was opened up by them

and even the implant was subsequently removed by them after

conducting the surgery. The opposite parties in order to cover up

their gross negligence and deficiency are now raising frivolous pleas

and are further trying to delay the issue.

20. The learned counsel for the complainant further contended that

abundance literature is available about the Candida fungal infection

and made reference to the same and the effect of delayed treatment

of infection of knee. It can lead to permanent deformity in cases

where there is a delay in detection and treatment. The complainant

at the right time was shifted from opposite parties Nos.1 to 3-

Hospital and was treated in time for the said infection. The causes
Consumer Complaint No.65 of 2013 25

for the said infection are normally due to accidental implantations of

fungus during surgeries. He prayed that this complaint may kindly

be allowed as prayed for.

Opposite Parties:

21. Per contra, learned counsel for the opposite parties

vehemently contended that the complainant is seeking

compensation towards the medical expenses incurred by her due to

the prolonged treatment on account of the negligence on the part of

the opposite parties in not being able to detect and treat the infection

in her right knee. Further compensation is being sought on account

of notional loss and mental agony and damages as stated in the

prayer clause of the complaint.

22. The learned counsel further contended that the complainant

underwent bilateral knee replacement surgery on 20/05/2011. All

protocols of OT disinfection, instrument sterility and post-operative

care, as per requisite medical standards were followed in the present

case and the patient was recovering well in the first 3 months after

surgery and she was walking comfortably as mentioned in the history

of the complainant in the Discharge Summary of Sir Ganga Ram

Charitable Hospital, New Delhi, Ex. C-79.

23. It was further contended by the learned counsel that on

13.8.2011 after about 3 months (85 days) of the surgery, the

complainant-patient presented with sudden onset of reddish swelling

2 cm x 2 cm, present at a short distance from knee joint line on inner

aspect of right upper leg. The margins of the swelling were well
Consumer Complaint No.65 of 2013 26

defined, and the joint capsule was not swollen, meaning thereby that

the swelling was superficial and it did not involve the knee joint. A

General Surgeon i.e. Dr. Atul Joshi-opposite party No.5 was

consulted to confirm the diagnosis. He concurred with the impression

of the swelling being superficial and diagnosed it as cellulitis. As per

recommended medical guidelines, the patient was put on oral

antibiotic by Dr. Atul Joshi and complainant was told to follow up

after 5 days. The patient visited him again on 18.8.2011, wherein

opposite party No. 5 after discussing with opposite party No.4

advised for an ultrasound of knee to confirm the diagnosis. The

ultrasound conducted on 20.8.2011 corroborated the clinical

diagnosis that the swelling was localized outside the knee joint

capsule and there was no difference in the amount of knee joint fluid

between the two knees Ex.OP-1/4. Thereafter, Dr. Atul Joshi

aspirated the pus point that had developed over the swelling on

27.8.2011 and he sent sample for gram stain and routine culture.

The result showed sample to have 30-50 pus cells / HPF proving it to

be an abscess, but no organism. The report is Ex. OP-1/5.

24. It was further contended by the learned counsel for the

opposite parties that the diagnosis of superficial infection was based

on medically sound reasons and in the interest of

complainant/patient’s safety. Opposite party No. 4 took opinion of

opposite Party No.5 too, since he is a General Surgeon, whose

routine practice includes skin and superficial infections. Therefore,

the allegation that the diagnosis of superficial infection was wrong or

Consumer Complaint No.65 of 2013 27

was made casually is untrue. As pus re-appeared both the Doctors

decided that a formal incision and drainage should be done to

decrease the infection load and minimize the chance of infection

spreading deep into knee joint.

25. It was further contended that the complainant/patient was

admitted for I&D and I&D procedure was done on 3.9.2011. Dr. Atul

Joshi (Opposite Party No.5) was present along with Dr. Harsimran

Singh (Opposite Party No.4) in the operating room. The swelling was

drained and thoroughly washed according to the satisfaction of both

opposite Parties Nos. 4 & 5. Opposite Party No.4 had separately

sent the samples of I&D tissue and a sample taken from synovial

fluid of the right knee joint at the location distant to the site of I&D for

diagnosis. While taking sample from knee joint, it was confirmed

that the knee joint was not communicating with the site of swelling

(I&D) and this fact is also written in the operating notes Ex.OP-1/5A.

The lab. reports show negative culture growth for both the samples.

Subsequently, the infection markers (CRP) started decreasing till

12.9.2011 after which they showed rise. In the coming few weeks

the discharge became more watery indicating leakage of synovial

fluid and spread of infection deep into the knee capsule and referred

to the lab report. At this point a working diagnosis of culture-negative

knee joint infection was kept. As per medical literature this was not

unusual, as in 5 to 34% of all knee infections, the causative

organism cannot be identified primarily due to inherent slow growing

nature of the organisms. Learned counsel referred to article:

Consumer Complaint No.65 of 2013 28

Prosthetic Joint Infections published in Clinical Microbiology Reviews

in 2014 and contended that it is one of the most exhaustive reviews

covering data from over 461 international articles and includes over

2435 joint infection cases.

26. It was further contended that opposite party No.4 thoroughly

searched the medical literature and had informal discussions with

several colleagues to look for recommendations as to how to

proceed in that scenario. In addition to it opposite party No.4

arranged complainant’s consult with Dr. Ramesh K. Sen, who at that

time was working as a Professor in the Orthopaedics Department at

PGIMER, Chandigarh and had been treating knee joint infections for

several years. The reason was that Dr. Ramesh Sen and his team

could have a fresh look at the patient’s clinical picture and suggest if

any change in treatment plan and/or new investigations was

warranted. Dr. Sen concurred with the line of treatment being given

and told the patient to stop antibiotic for a week and repeat gram

stain and routine culture which the patient got done at a private lab.

Results were again negative for any pathogenic growth. This part is

clearly mentioned in the reply and the affidavit of Dr. Harsimran

Singh-opposite party No.4. This fact stands admitted as the

complainant has neither denied the same nor cross-examined Dr.

Harsimran Singh-opposite party No.4 upon this point.

27. It was further contended that after this opposite party No.4

planned for two staged revision. In the 1st stage infected tissue is

excised and the infected implant is removed and an antibiotic spacer

Consumer Complaint No.65 of 2013 29

is inserted which elutes anti-biotic. This is usually followed by one or

more debridement before it is followed by 2nd stage TKR wherein a

new implant is inserted. The complainant was admitted to opposite

parties Nos.1 to 3-Hospital on 19.10.2011 and was discharged on

28.10.2011 after right knee debridement with implant removal was

done on 20.10.2011. Operation theatre notes are Ex. OP-1/8 and the

discharge summary is Ex.C-16. After insertion of spacer the

complainant was advised bed rest.

28. It was further contended that thereafter complainant became

irregular with her dressings and was not keen on following up with

opposite party No.4 and as per complainant’s own admission she

was consulting other doctors. Thereafter complainant went to Sir

Ganga Ram Hospital, New Delhi and on 20.11.2011 where the

complainant underwent debridement and remained admitted till

30.12.2011 and underwent stage II revision in April 2012. At Sir

Ganga Ram Hospital, New Delhi, same line of treatment was

followed as was conducted by opposite party No.4. The treating

Doctors i.e. opposite Parties Nos.4 & 5 performed their duty to give

complainant best treatment possible and opposite party No.4 in the

interest of complainant/patient’s safety took an expert opinion from

Dr. Ramesh K. Sen at PGIMER, Chandigarh also so that he did not

miss anything critical and that everything possible was done to

alleviate the complainant/patient’s suffering. It also means that had

the complainant/patient been undergoing treatment for the same

condition at a reputed institute like PGIMER, Chandigarh, the same

Consumer Complaint No.65 of 2013 30

treatment would have been followed and probably same results

would have been achieved.

29. The learned counsel further submitted that there are three

modes of occurrences of Prosthetic Joint Infections referred to

“Prosthetic Joint Infection” by Mayo Clinic, Rochester, Minnesota,

USA. First is introduction of microorganisms introduced during the

surgery. Second mechanism is contiguous spread of infection from

an adjacent site (which happened in the present case) and third one

is haematogenous seeding (which means that the infection from the

distal foci may travel via blood and infect the implant). In the present

case the infection was a contiguous spread from an adjacent soft

tissue which despite best treatment transformed into a deep infection

from a subcutaneous infection despite Antibiotic, dressing and I & D

procedure. It is known to occur from a superficial infection.

30. The learned counsel further contended that despite opposite

parties doing their best the complainant out of a misguided and

misplaced sense of retribution instituted the present complaint

levelling allegations against Opposite Parties which are bereft of

medical plausibility. The complainant aims at satisfying only a

layman’s understanding of the complexities and nuances of treating

a problem as perplexing as infection following a knee replacement.

Complainant has tried to set up foundation of her case on the

premise that Candida Albicans detected on routine culture at Sir

Ganga Ram Hospital, New Delhi, was introduced during the first

surgery and secondly that opposite parties could not diagnose and
Consumer Complaint No.65 of 2013 31

treat the patient. It is submitted that the guidelines for diagnosis and

treatment of knee joint infection are still undergoing improvisations

and there is yet to be a consensus in measures to be taken for

prevention and treatment of this malady.

31. The learned counsel further contended that so far as the

complainants’ proposition to the effect that Candida Albicans was

introduced in the first surgery is concerned, it is clear from results of

the culture. It is apparent that the said argument is totally

hypothetical and lacks any medical basis. The Candida Albicans was

detected at Sir Ganga Ram Hospital, New Delhi, was not detected in

any of the cultures conducted at Fortis Hospital and from a private

laboratory. Meaning thereby that Candida Albicans was

subsequently introduced when the complainant/patient stopped

follow up with Fortis Hospital, Mohali and did not undergo aseptic

dressings which were regularly being done by the doctors at Fortis

Hospital, Mohali. Candida albicans is a commensal of human body,

meaning thereby it is fungi which is present on the skin/throughout

the entire GI tract/ expectorated sputum/ female genital tract.

Candida is microbiologically very easy to detect on routine

bacteriological cultures and does not require any special fungal

media for cultivation. The fact that Candida is detected on routine

culture is supported by Mandell, Douglas and Bennett’s “Principles

7th
and Practice of INFECTIOUS DISEASES, edition. For this

reason no one ordered for a specialised fungal stain or culture in

2011. At Fortis Hospital routine cultures were got conducted eight

Consumer Complaint No.65 of 2013 32

times. All the reports were negative. Since Candida Albicans was not

being detected in so many cultures from August to November 2011,

therefore, it is clear that it was not present in the

complainant/patient’s wound/knee at that time. Even at Sir Ganga

Ram Hospital, New Delhi, the treating doctors did not order any

special fungal stain or culture and Candida Albicans was detected on

routine culture. This supports the assertion of Opposite Parties that

no other testing was required, as is being argued by the

complainant.

32. The learned counsel further contended that the

complainant/patient was referred to Dr. Ramesh K Sen at PGIMER,

Chandigarh by opposite party No.4 for second opinion in September

2011 and he did not advise any different investigation or any special

fungal or atypical bacteria culture. Similarly as per patient’s own

statement, she consulted several doctors, none of whom suggested

any different investigation than what was ordered by opposite party

No.4 nor could they diagnose the organism that caused the infection.

The very fact that the complainant has not brought on record any

prescription of any of the doctors whom she claims to have

consulted shows that they had nothing different to offer than what

was being advised by opposite party No.4. Even at Sir Ganga Ram

Hospital, New Delhi, no special culture or test was done. This shows

that complainant/patient never required more testing and whatever

was required was done as per standard practice.

Consumer Complaint No.65 of 2013 33

33. The learned counsel further submitted that the complainant

moved MA No. 168 of 2014 for referring the matter to the medical

board and also moved an application suggesting the names of the

expert doctors to whom the matter be referred to for an expert

opinion. In the application dated 6.5.2014 she specified the names

of doctors. Thereafter, this Commission referred the matter to

Medical Board of the PGIMER, Chandigarh. Even GMCH, Sector 32,

Chandigarh, also revisited the entire treatment record and the case

file to provide its Report. The expert opinions by two Government

institutions also show that the treatment rendered to the complainant

was in line with standard practice and there was no deviation from a

known practice.

34. The learned counsel further submitted that no orthopaedic

surgeon in India had seen a case of true fungal knee implant

infection till 2013. The first case of fungal knee implant infection was

published by Dr. K J Reddy in 2013 (Reference No. 6-FUNGAL

PROSTHETIC JOINT INFECTION AFTER TOTAL KNEE

ARTHROPLASTY). As per an international review article published

in 2017, which stated the incidence of true fungal knee infection

across the world, the case of Dr. K. J. Reddy was still only case

reported from India. Thus, the complainant’s case was not a case of

true fungal infection but where a commensal had colonised the

wound.

35. The learned counsel in alternative submitted that the fungal

infection detected at Sir Ganga Ram Hospital, New Delhi, was not a
Consumer Complaint No.65 of 2013 34

true fungal infection but merely colonization by Candida Albicans.

The medical literature clearly shows that the organisms are normal

human flora, including fungi can colonize open wounds. In this

regard opposite parties referred to articles on the infection. The

complainant/patient stopped getting aseptic dressing of the wound

towards the end of November, 2011 from opposite parties Nos.1 to

3-Hospital. After 3 weeks the complainant/patient underwent surgery

at Sir Ganga Ram Hospital, New Delhi, who sent the sample (for the

same test as sent at Fortis Hospital, Mohali) i.e. a routine culture and

Gram stain. No special fungal culture or any other test was ordered

by them. The sample grew candida albicans proving that this fungus

got introduced later on in the wound. The discharge summary at Sir

Ganga Ram Hospital, New Delhi, shows that after debridement they

advised antifungal injections for 1 week only (a mention of 30

injections in a different document). Only anti bacterial were given by

the Doctors in Sir Ganga Ram Hospital, New Delhi after the second

stage revision in March 2012, whereas the literature for fungal

infection advises a course of around 20 weeks of anti-fungals after

1st stage debridement and implant removal and anti-fungals for 12

weeks after the second stage (definitive implant insertion). The

doctors at Sir Ganga Ram Hospital, New Delhi, also did not treat the

infection as a true fungal infection but as a bacterial infection only.

Therefore, the course of treatment followed by opposite parties

Nos.4 and 5 was correct and was in line with the standard protocol of
Consumer Complaint No.65 of 2013 35

treatment. There is no merit in the present complaint and the same

be dismissed with costs.

Consideration of Contentions:

36. We have given our thoughtful consideration to the contentions

raised before us by the learned counsel for both the sides.

37. Admittedly the complainant was admitted for Bilateral TKR in

opposite parties Nos.1 to 3-Hospital and the TKR surgery was

performed by opposite party No.4 on 20th of May 2011. The

complainant was discharged on 26.5.2011. Thereafter the

complainant visited initially for dressings and follow up check-ups.

The complainant had undergone TKR for both the knees but there

was no complaint with regard to left knee but she complained of

severe pain in her right knee almost after 85 days of the said surgery

in the month of August 2011. The complainant complained of

redness around in the right knee and severe pain in it. On 13.8.2011

the complainant was examined by opposite parties Nos.4 and 5 and

the treatment was provided. Opposite parties Nos.4 and 5

performed I&D procedure and the sample of the drained out material

from the right knee was sent for examination. It appeared that there

was leakage of synovial fluid of right knee joint at a location distant

to I&D site. While taking the sample from right knee joint it was

confirmed that the knee joint was not communicating with the site of

swelling (I&D) and it is so recorded in the operation notes

Ex.OP1/5A. The Laboratory report of both the samples was

negative. Thereafter infection markers started decreasing till 12th of

Consumer Complaint No.65 of 2013 36

September 2011 after which they showed rise. It would be

appropriate to refer to the same in tabulated form as under:-

Hb TLC CRP

21/5 10.6 7.2

22/5 11.1 7.9

25/5 10.8 4.7

4/9 10.8 6.5 60.2

5/9 10.7 5.8 42.2

6/9 11.0 5.2 22.8

7/9 11.1 6.7 15.8

12/9 10.8 6.0 30.2

21/10 10.3 6.4

23/10 11.1 7.3

26/10 19.3

27/10 21.3

The culture was showing negative infection. As per medical literature

i.e. “Prosthetic Joint Infections” published in Clinical Microbiology

Reviews in 2014, it was not unusual as in 5 to 34% of knee

infections, the causative organism cannot be identified primarily due

to inherent slow growing nature of the organisms.

38. Not only this opposite party No.4 has taken all precautions with

regard to infection in the right knee of the complainant. He consulted

Dr. Atul Joshi-opposite party No.5 and also referred the complainant

to Dr. Ramesh K. Sen of PGIMER, Chandigarh, who is a known

Consumer Complaint No.65 of 2013 37

Orthopaedic Surgeon. He found that the protocol followed by

opposite party No.4 is the standard protocol with regard to the knee

infection. When the infection was suspected to be deep inside the

knee joint thereafter debridement was done and appropriate

measures were taken. Various types of pathology tests including

microbiology tests were conducted. The Orthopaedic Surgeon in the

case of infection has to rely upon the findings recorded by the

pathological laboratory of the concerned Hospital. The right knee

debridement was done on 19.10.2011 and the complainant was

discharged on 28.10.2011. Reference can be made to the operation

notes Ex.OP-1/8. As per the standard protocol spacers were

inserted and the patient was advised rest. However, immediately

after sometime the complainant approached Sir Ganga Ram

Hospital, New Delhi on 20.12.2011 where debridement was done

and the complainant underwent Stage-II revision in April 2012. A

perusal of medical record reveals that the line of treatment in Sir

Ganga Ram Hospital, New Delhi was the same, which was at

opposite parties Nos.1 to 3-Hospital. A perusal of medical literature

i.e. “Prosthetic Joint Infection” by Mayo Clinic, Rochester, Minnesota,

USA reveals that infection can spread from the adjacent soft tissues

so has happened in the present case. Dressings were done. I&D

procedure was performed. Antibiotic spectrum of treatment was

given.

39. The contention of the learned counsel for the complainant is

that Candida Albicans could have been detected in routine manner

Consumer Complaint No.65 of 2013 38

as it was on the very first day detected at Sir Ganga Ram Hospital,

New Delhi. The same could not be diagnosed by the opposite

parties. It needs to be mentioned that the Surgeons i.e. opposite

parties Nos.4 and 5 cannot be held liable for the same. Ultimately

they have to rely upon the pathological lab. tests reports, which were

carried out and found to be negative. The tests had not pointed out

existence of any fungal infection caused by the organism candida

albicans, which is generally relied upon by the Surgeons. Candida is

microbiologically very easy to detect on routine bacteriological

cultures and does not require any special fungal media for

cultivation. Candida is detected on routine culture is supported by

Mandell, Douglas and Bennett’s “Principles and Practice of

Infectious Diseases” 7th Edition in which it has been stated as

under:-

“They (Candida organisms) grow well in vented

routine blood culture bottles and on agar plates and

do not require special fungal media for cultivation.”

At Fortis Hospital routine cultures were got done eight times and all

the reports were negative, which are reproduced hereunder:-

Date Gram Stain Culture

29/8 30-50 PMN Sterile-48 hours

No organism
5/9 No PMN Sterile-48 hours
(Swab) No organism
5/9 8-10 PMN Sterile-48 hours
Synoial fluid 50-100 RBC
(sample taken on 3/9) No Organism
5/9 5-7 PMN Sterile-48 hours
Soft tissue 0-1 Epithal All
(sample taken on 3/9) No organism
Consumer Complaint No.65 of 2013 39

22/9 No PMN/No organism Sterile-48 hours

Swab-wound
3/10 0-1 PMN Sterile-48 hours
No Organism
20/10 No PMN Sterile-48 hours
Synoial fluid No organism
13/11 wound swab No PMN Sterile-48 hours
No organism

A perusal of the above reproduced culture reports reveals that

steroid grain stain also did not find out presence of any organism.

40. The matter was referred to the PGI, Chandigarh for constituting

a Medical Board and the Medical Board so constituted by the PGI in

its report Ex.OP-1/11 reported as under:-

“Patient Urmil Chopra appeared before the

medical board at 3 pm on 28.7.2014. After

examining the patient and the record submitted

by both the parties, the board is of the opinion

that there is no gross negligence on the part of

the treating surgeon as repeated bacterial

cultures were done by the surgeon as per

standard protocol. Debridement and re-culture

was also done. It may be noted that fungal

cultures are not a routine procedure in Total knee

replacement and it is very difficult to suggest that

the fungal infection which was diagnosed at Delhi

occurred during the first surgery or afterwards.”

Consumer Complaint No.65 of 2013 40

Government Medical College and Hospital, Sector 32, Chandigarh

also revisited the entire treatment record and the case file and

reported as under:-

“The most common pathogens responsible for

infection in TKR are gran positive cocci & gram-

negative bacilli for which culture should be sent

during debridement. Routine use of cultures for

atypical bacilli & fungi are not recommended in

every case.”

The aforesaid expert opinions by two Government institutions also

show that the treatment rendered to the complainant was in line with

standard practice and there was no deviation from a known practice.

No Orthopaedic Surgeon in India had seen a case of true fungal

knee implant infection till 2013. The first case of fungal knee implant

infection was published by Dr. K.J. Reddy in 2013 (Reference No.6-

Fungal Prosthetic Joint Infection after Total Knee Arthroplasty).

Thus, the case of the complainant was not a case of true fungal

infection but it was a case where commensal had colonized the

wound. Thus, both the reports of the abovesaid Hospitals, which are

based on medical record of the case reveal that there is no fault on

the part of the treating Doctor i.e. opposite party No.4, who had

performed the bilateral TKR in both the knees of the complainant

and thereafter gave post surgery treatment to her. Even there is no

allegation against opposite party No.5 because he was called only

as a Consultant; being a General Surgeon. Otherwise no medical

Consumer Complaint No.65 of 2013 41

negligence has been alleged against him. Therefore, it is held that

there is no medical negligence or deficiency in service on the part of

opposite parties Nos.4 and 5 in performing the bilateral TKR of both

the knees of the complainant and in providing the subsequent

treatment to her.

41. In his cross-examination Dr. Harsimran Singh-opposite party

No.4 has categorically stated that the infection has not been

detected in the microbiological laboratory tests of the complainant.

Even the candida albicans was not prevalent in India and it was for

the first time reported in the year 2013 by Dr. K.J. Reddy. Prior to

that, it was not noticed as it is not common organism. Further it is

the own case of the complainant that she complained of redness in

August 2011 after about 85 days of the performance of the surgery

of bilateral TKR meaning thereby that the infection was not in

existence when the complainant was discharged from opposite

parties Nos.1 to 3-Hospital and it appeared after about three months.

The possibility of infection having been acquired from other sources

cannot be ruled out. Hence the Doctors-opposite parties Nos.4 and

5 cannot be held medically negligent in the treatment and the

protocol used for the bilateral TKR of both the knees and the

subsequent treatment given for infection in the right knee of the

complainant. In this manner, the complainant appeared to have

failed to point out that opposite parties Nos.4 and 5 failed to perform

their duties, which were expected from them.

Consumer Complaint No.65 of 2013 42

42. Now, the question which remains to be answered, whether

opposite parties Nos.1 to 3-Hospital and other staff exercised

reasonable skill and care. In other words, whether the medical staff

of opposite parties Nos.1 to 3-Hospital i.e. the Pathological

Laboratory Investigation Department is concerned, it followed the

standard protocol or it fell below the standard protocol? It is

admitted that some tests were carried out with regard to gram stain

and other tests. The complainant came in August 2011 complaining

redness and subsequent infection for draining of which I&D

procedure was carried out, though it was stated by the complainant

as surgeries in the complaint. In fact, the same were minor

operations for draining out and cannot be treated as complete

surgeries. Be that as it may the fact remains that pathological

laboratory of opposite parties Nos.1 to 3-Hospital certainly failed to

find it out that the infection was caused by which organism i.e.

Candida Albicans and the same was immediately found at Sri Ganga

Ram Hospital, New Delhi, as is mentioned in Investigation Summary,

placed on the record as Mark-A. ESR and P.T. tests were carried

out but the results were anti yeast sensitivity (tissues). The tests

were carried out in opposite parties Nos.1 to 3-Hospital, which

resulted into not identifying the Candida Albicans. This clearly

shows that there was some negligence on the part of the

Pathological Laboratory of opposite parties Nos.1 to 3-Hospital,

which could not find out infection in the tests conducted by it. Either

the Staff was not well qualified to identify such organism or there
Consumer Complaint No.65 of 2013 43

was no upto date equipment with it to identify such infection. At least

the complainant remained under treatment of infection in her right

knee in opposite parties Nos.1 to 3-Hospital from 13.8.2011 to

19.12.2011 i.e. for almost about four months and she had to spend

for the repeat surgery; resultant TKR and for the treatment of the

said infection. The conduct of the Doctors and other para medical

staff of Pathological Department of opposite parties Nos.1 to 3-

Hospital clearly shows that appropriate degree of professional skill,

which may be the indicative of reasonable skill and degree, was not

applied in this case so far as microbiological and other laboratory

tests are concerned and this is not expected from a reputed hospital,

like opposite parties Nos.1 to 3-Hospital. Opposite parties Nos.1 to

3-Hospital certainly fell below the standard of a reasonably

competent staff in the concerned field in the said hospital. Principle

of res-ipsa-loquitur (things speak itself) is sufficient to describe the

proof of the fact, which is sufficient to support an inference that

opposite parties Nos.1 to 3-Hospital were negligent, thereby

establishing a prima facie case against them of the negligence.

Hence it is held that there is medical negligence on the part of the

laboratory staff of opposite parties Nos.1 to 3-Hospital particularly

the pathological laboratory staff. It is, now, well settled that Hospital

is vicariously liable for the medical negligence and deficiency in

service on the part of all its Doctors, Nurses, Para-Medical Staff,

Laboratories etc.
Consumer Complaint No.65 of 2013 44

43. Medical negligence cases do sometimes involve questions of

factual complexity and difficulty and may require the evaluation of

technical and conflicting evidence. In the present case the

complainant has been able to discharge the onus of proving on a

balance of probabilities, the negligence averred against opposite

parties Nos.1 to 3-Hospital. The complainant has been able to prove

as discussed in foregoing paras that her case had not been handled

diligently and cautiously in identifying the infection in opposite parties

Nos.1 to 3-Hospital for about four months.

44. Thus, keeping in view the evidence on record, preponderance

of probability and inferences, we hold that the complainant has been

able to prove her case of medical negligence against opposite

parties Nos.1 to 3-Hospital. In the present case, complainant has

been able to discharge the onus of proving on a balance of

probabilities, the medical negligence averred against opposite

parties Nos.1 to 3-Hospital. We are of the view that certainly there

was medical negligence on the part of opposite parties Nos.1 to 3-

Hospital in giving post operation treatment to the complainant and in

not identifying the infection during the various tests conducted by

their Pathological Laboratory; as a result of which the complainant

remained bed ridden during all that period and suffered acute pain,

mental agony and trauma besides financial loss on the treatment of

the said infection in opposite parties Nos.1 to 3-Hospital as well as in

Sir Ganga Ram Hospital, New Delhi.

Consumer Complaint No.65 of 2013 45

Quantum of Compensation:

45. It is extremely difficult to decide on the quantum of

compensation in the medical negligence cases, as the quantum is

highly subjective in nature. Different methods are applied to

determine compensation.

46. Hon’ble National Commission in Dr. (Mrs.) Indu Sharma v.

Indraprastha Apollo Hospital & Others Consumer Case No.104 of
2002, decided on 22.04.2015, observed in Paras No.53, 59 & 60 as
follows:
53. A decision in the case of Spring Meadows Hospital & Anr.
v. Harjol Ahluwalia through K.S. Ahluwalia & Anr reported
in (1998) 4 SCC 39. Their Lordships observed as follows:
" Very often in a claim for compensation arising out of
medical negligence a plea is taken that it is a case of bona
fide mistake which under certain circumstances may be
excusable, but a mistake which would tantamount to
negligence cannot be pardoned. In the former case a court
can accept that ordinary human fallibility precludes the
liability while in the latter the conduct of the defendant is
considered to have gone beyond the bounds of what is
expected of the skill of a reasonably competent doctor."
- - - - - - - - - - - - - -- - - - - -
59. Nizam Institute Case- 2009 Indlaw SC 1047:
In the Nizam Institute case 13, the Supreme Court did not
apply the multiplier method. In 1990, twenty-year old
Prasant S. Dhananka, a student of engineering, was
operated upon at the Nizam Institute of Medical Sciences,
Hyderabad. Due to medical negligence of the hospital,
Prasant was completely paralysed. Compensation was
claimed, and the matter finally reached the Supreme Court.
The court did not apply the multiplier method and awarded
a compensation of Rs. 1 crore plus interest. The court
observed:
"Mr. Tandale, the learned counsel for the respondent has,
further, submitted that the proper method for determining
compensation would be the multiplier method. We find
absolutely no merit in this plea. The kind of damage that
the complainant has suffered, the expenditure that he
has incurred and is likely to incur in the future and the
possibility that his rise in his chosen field would now be
restricted, are matters which cannot be taken care of under
the multiplier method.
- - - - - - - - - - - - - -- - - - - -
Consumer Complaint No.65 of 2013 46

60. Kunal Saha's Case (2014) 1 SCC 384 :

The Supreme Court rejected the multiplier method in this
case and provided an illustration to show how useless the
method can be for medical negligence cases. Hon'ble
Justice Mr.V.Gopala Gowda opined that;:
"The multiplier method was provided for convenience and
speedy disposal of no fault motor accident cases.
Therefore, obviously, a "no fault" motor vehicle accident
should not be compared with the case of death from
medical negligence under any condition. The aforesaid
approach in adopting the multiplier method to determine
the just compensation would be damaging for society for
the reason that the rules for using the multiplier method to
the notional income of only Rs.15,000/- per year would be
taken as a multiplicand. In case, the victim has no
income then a multiplier of 18 is the highest multiplier
used under the provision of Ss. 163 A of the Motor
Vehicles Act read with the Second Schedule....
Therefore, if a child, housewife or other non-working person
fall victim to reckless medical treatment by wayward
doctors, the maximum pecuniary damages that the
unfortunate victim may collect would be only Rs.1.8 lakh.
It is stated in view of the aforesaid reasons that in today's
India, Hospitals, Nursing Homes and doctors make lakhs
and crores of rupees on a regular basis. Under such
scenario, allowing the multiplier method to be used to
determine compensation in medical negligence cases
would not have any deterrent effect on them for their
medical negligence but in contrast, this would encourage
more incidents of medical negligence in India bringing even
greater danger for the society at large."

47. Admittedly after the Bilateral TKR of both the knees of the

complainant on 20.5.2011 she was kept under observation for one

week and was discharged on 26.5.2011. The complainant continued

regular follow-ups with the opposite parties. In the month of August

2011 redness was seen on the right knee of the complainant and

there was acute pain in the same. The complainant consulted

opposite parties Nos.4 and 5, who after examination observed that

there was abscess/pus formation in the right knee, which was

removed three times. However, even after the removal of

Consumer Complaint No.65 of 2013 47

abscess/puss thrice from the right knee, it still continued to form and

there was a lot of swelling in it. Ultimately, the complainant was

admitted in opposite parties Nos.1 to 3-Hospital on 2.9.2011, where

she was operated on 3.9.2011 and during that operation

abscess/pus was flushed out from the right knee of the complainant.

She was discharged on 8.9.2011. An amount of `81,017/- was

charged by the opposite parties from the complainant and an

additional amount of `12,870/- was spent by her on medicines.

Thereafter the complainant was again admitted in opposite parties

Nos.1 to 3-Hospital on 19.10.2011, where she was operated on

20.10.2011 and the artificial knee was removed after five months of

the first operation. She remained admitted for about 8-9 days and

was discharged on 28.10.2011. The complainant was again charged

a sum of `1,78,818/- by the opposite parties and she also spent a

sum of `1,10,752/- towards various medicines and tests. However,

the infection had still not healed and continued to spread in the right

knee even after removal of the artificial knee. On 20.12.2011 i.e.

after about 7 months of the first operation, the complainant got

admitted in Sir Ganga Ram Hospital, New Delhi, where surgery was

performed on 21.12.2011 and she was discharged on 30.12.2011.

The complainant spent an amount of `2,15,775/- for that operation

in Sir Ganga Ram Hospital, New Delhi and additional amount of

`2,37,428/- on the follow up treatment and medicines. On 24.4.2012

the complainant was admitted in Sir Ganga Ram Hospital, New Delhi

for final surgery whereby the right knee was again transplanted and
Consumer Complaint No.65 of 2013 48

after that operation the complainant’s one year ordeal came to an

end. The complainant had to spend another amount of `4,75,635/-

and additional amount of `19,200/- on medicines and follow up. As

such, the complainant had spent total amount of `13,31,495/- on

the treatment of infection in her right knee in opposite parties Nos.1

to 3-Hospital as well as in Sir Ganga Ram Hospital, New Delhi

regarding which various bills have been placed on record by her as

Ex.C/2 to Ex.C/15, Ex.C/17 to Ex.C/78, Ex.C/80, Ex.C/82 and

Ex.C/83. Hence the complainant is held entitled to the

reimbursement of `13,31,495/- spent by her on the treatment of

infection of her right knee. Besides this, she is also entitled to

compensation for acute pain, mental tension, trauma and the

continuous ordeal for almost one year. In the peculiar facts and

circumstances of this case we assess the same to the tune of

`3,00,000/-.

48. In view of our above discussion, this complaint is partly

allowed against opposite parties Nos.1 to 3-Hospital and is

dismissed against opposite parties Nos.4 and 5-Doctors. The

following directions are issued to opposite parties Nos.1 to 3-

Hospital:-

i) to pay `13,31,495/- (Rupees Thirteen Lakh Thirty One

Thousand Four Hundred and Ninety Five only) for the

expenses incurred by the complainant on the treatment

of infection on her right knee;

Consumer Complaint No.65 of 2013 49

ii) to pay `3,00,000/- (Rupees Three Lakh only), as

compensation, for acute pain, mental tension, trauma

and the continuous ordeal for almost one year; and

iii) to pay `30,000/- (rupees Thirty Thousands only)

towards litigation costs.

49. The compliance of this order shall be made by opposite party

Nos.1 to 3-Hospital within a period of two months from the date of

receipt of certified copy thereof, failing which the amount of

compensation of `3,00,000/- shall be payable with interest at the

rate of 9% per annum from today till the date of actual payment.

50. The complaint could not be decided within the statutory period

due to heavy pendency of court cases and due to the fact that the

matter remained with the Hon’ble National Commission in First

Appeal No.409 of 2017 (URMIL CHOPRA v. FORTIS

HEALTHCARE (INDIA) LIMITED) from 2017 to 7th of February

2018, vide which cross-examination of witness has been allowed.

(JUSTICE PARAMJEET SINGH DHALIWAL)

PRESIDENT

(RAJINDER KUMAR GOYAL)

MEMBER
October 25, 2018
Bansal
Consumer Complaint No.65 of 2013 50