J.S. Klar, Presiding Judicial Member:-
1. The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that he being an ex-army officer and sportsman was afflicted with knee problem. He consulted with Senior Orthopedic Surgeon of ECHS/Army Authorities, who advised him for special implant and custom knee solutions. He discussed the matter with the Consultant at the Fortis Hospital Mohali about his above knee problem. Dr. Manuj Wadhwa Orthopedic Surgeon, Director & Head Joint Replacement Unit Fortis Hospital advised him for TRUMATCH (custom knee solution and special implant) which would be more suitable for him, being a sportsman. He was advised by Dr. Manuj Wadhwa that special implants would be custom-built for his knees and imported from abroad in accordance with exact measurements of his knees. He was assured by above Orthopedic Surgeon that such implants were capable of correcting his knees deformities and would improve his mobility by improving his walking movement. OPs introduced the 4th Generation Knee Joint Implant (custom knee solution and special implant) in North India by giving publicity in newspapers. OP no.3 induced him on the basis of newspaper reports that 4th generation knee plant was the most advanced design available for sportsman. The complainant was impressed with above statement and assertion and he underwent the surgery for replacement of both his knee joint with TRUMATCH (custom knee solution and special implant) at Fortis Hospital Mohali, which was an empanelled hospital with ECHS regarding knee problems. He was also assured that such implants had life more than 20 to 25 years and they would be good bone stock for subsequent surgery, if any. Total cost of the said surgery was Rs.4,19,830/-, vide letter dated 23.02.2011, out of which Rs.3,48,212/- would be paid by ECHS and balance amount of Rs.1,17,330/- was to be paid by the complainant from his own source. The complainant agreed to pay extra amount of Rs.1,17,330/- from his own source after obtaining necessary approval from Army Headquarter New Delhi about above knee surgery. He obtained the necessary approval from the concerned Army Authorities, vide letter dated 04.06.2011. He deposited Rs. 1,10,000/- as advance extra payment with OPs, vide receipt no. FHM/11-12/Do/9051 dated 16.06.2011 and receipt no. FHM/11-12/0/CS/00016199 dated 02.05.2011. He was admitted in Fortis Hospital on 11.08.2011 as per the advice of Dr. Manuj Wadhwa, who did the joint replacement surgery/operation upon him. He was discharged on 18.08.2011 therefrom. OPs demanded extra amount of Rs.30,000/- from him instead of balance amount of Rs. 7,330/-. The OPs were paid Rs. 3,48,212/- by ECHS for the said knee surgery, vide bill no. FHM/11/-12/1/CR/00003265 dated 18.08.2011. He observed that his right leg joint alignment was not correct after surgery and he immediately complained about it to Dr. Manuj Wadhwa, who examined his right leg and advised him to continue with physiotherapy and exercises for the same and they would set it right and his burning sensation of left leg would also disappear therewith. He underwent post operation physiotherapy for about six months by the Physiotherapist on payment of Rs. 300/- per visit and had experienced that his left leg joint was still giving pain and his right leg alignment has not shown any improvement. Dr. Manuj Wadhwa advised him to continue with physiotherapy and exercises. Fortis Hospital has failed to rectify his problem despite his treatment for a long time. He has continuing cause of action to file the complaint against OPs. On 05.07.2014, he went to OPs/Hospital and consulted Dr. Harsimran Singh Orthopedic Surgeon, who advised him medicines for 60 days. His problem was not removed and he visited Fortis Hospital on 13.03.2015 and above Dr. Harsimran Singh informed him verbally that his second surgery was required for his left leg to be corrected of the defective surgery. He alleged medical negligence by operating Dr. Manuj Wadhwa and other OPs in this case, besides them being guilty of unfair trade practice. He alleged that he suffered due to negligence and deficient service of OPs in this case. He further averred that Fortis Hospital authorities admitted their lapse and thereafter from 07.05.2014 to 13.03.2015, he remained under the treatment of Dr. Harsimran Singh Senior Orthopedic Surgeon of Fortis Hospital and finally on 13.03.2015 Dr. Harsimran Singh advised him that alignment of his right knee would remain the same. His left knee joint replacement surgery was not properly done and he advised him for fresh surgery thereof. He hass, thus, filed the complaint praying that OPs be directed to refund the amount of Rs.3,48,212/- received by them from ECHS and to refund the amount of Rs.1,40,000/- paid by him to Fortis Hospital Mohali as extra amount. OPs be further directed to pay Rs.3000/- as other expenses and Rs.1 lac for physical support by escort etc, besides Rs. 90,00,000/- for medical negligence and unfair trade practice and Rs.50,000/- as cost of litigation to him.
2. Upon notice, OPs no.1, 2 and 5 filed their joint written reply and contested the complaint of the complainant by raising preliminary objections that complaint is misconceived and is not maintainable. The complaint is alleged to be flagrant abuse of the process of law. It was averred that complainant has undergone bilateral total knee replacement surgery at Fortis Hospital Mohali on 12.08.2011. As per version of the complainant, at the time of removal of stitches, which is usually done after few days of surgery, he observed that alignment of his right leg was not correct. He consulted Dr. Manuj Wadhwa, who assured him for physiotherapy and exercises for alignment of the right leg, as per case of complainant. It was further alleged by complainant that despite six months of physiotherapy, his right knee alignment was not corrected. Answering Ops averred that the complaint is hopelessly time barred and merits dismissal under Section 24-A of CP Act 1986. The cost of surgery was 5,08,383/- total package cost, which was 100% and comes out to Rs.2,18,212/-, which was borne by ECHS. Consumable of implant cost was Rs.2,90,000/- and food and beverages was of Rs.172. So out of Rs.2900171/- consumable plus Rs.130000/- would be share of ECHS, so patient share left therein was Rs.160171/-out of which patient paid Rs.1,30,000/- and balance Rs.30,171/-. On merits, answering OPs pleaded that complainant was advised custom-made knee implant by Senior Orthopedic Surgeon of ECHS itself. The complainant underwent total knee replacement after giving a written consent therefor. It was denied by answering OPs that complainant was induced by such an advertisement to undergo for above surgery. It was also not admitted by answering OPs that doctor at ECHS firstly had not advised him to go in for a special implant and custom knee solution. He was admitted on 11.08.2011 and operation was conducted upon him on 12.08.2011 and he was discharged on 18.08.2011 from the hospital. The total cost of the surgery was Rs. 5,08,383/- and complainant paid the cost without any protest thereto. It was further pleaded by answering OPs that complainant was having burning sensation before his admission to Fortis Hospital Mohali, as per record. It was denied that during physiotherapy, his alignment had not shown any improvement and his joint was still giving him pain. It was also denied that complainant underwent postoperative physiotherapy from physiotherapist of Fortis Hospital Mohali for six months. Dr. Harsimran Singh Orthopedic Surgeon of Fortis Hospital had just given health supplements to him because he was an elderly man and this fact in any way did not denote that the prior surgery was wrong and incorrect. Present advice for TKR revision did not show that prior previous surgery was not correct, as advised for left knee after four years from the time of first surgery. It was denied by answering OPs that complainant was induced to pay heavy amounts without delivering the results. According to last X-ray, radiologically the joint is normal of the complainant. It was denied that Dr. Manuj Wadhwa was negligent in any way in conducting the surgery of the complainant. Dr. Manuj Wadhwa had advised TRUMATCH surgery and there was no selfish interest on the part of hospital authorities in it. The surgery was conducted, strictly as per standard book procedure after obtaining his consent. It was denied that any experimentation was carried out on the complainant, as alleged in the complaint. OPs no. 1, 2 and 5 prayed for dismissal of the complaint.
3. OPs no. 3 and 4 filed their separate written reply and contested the complaint of the complainant vehemently by raising preliminary objections that complainant is not covered under the definition of 'consumer' and complaint is not maintainable in the present form. Any medical negligence by OPs no. 3 and 4 has been forcefully denied. The complaint is alleged to be false and frivolous and merits dismissal under Section 26 of the Consumer Protection Act. There is no deficiency in service on the part of answering OPs. The treatment was given by the treating doctors on standard medical jurisprudence stricto sensu by adopting proper procedure by qualified, experienced and competent medical staff of OP no.1. As per pleaded version of complainant, at the time of stitch removal, which was usually done after few days of surgery, he observed that alignment of his right leg was not correct. OPs no.3 and 4 never intimated about it to him. As a matter of fact, it never happens that a person, who has got operated in 2011 never approached the treating doctor for 4 to 5 years and then suddenly after about four years and eight months therefrom, files a complaint all of his sudden. The complaint is hopelessly time barred and merits dismissal. Mere absence of fruitful results or not succeeding in treatment does not give rise to any cause of action against the treating doctor or hospital. The answering OPs left Fortis Hospital Mohali and joined as Director & Head Max Elite Institute of Orthopedics and Joint Replacement Max Hospital w.e.f. 01.06.2013. The complainant has not produced the complete treatment record with the complaint. Dr. Manuj Wadhwa has to his credit the launch of 30 years Knee Concept & Personal Fit Joint Replacement in India and launch of high flexion knee and hip replacement etc in north India. The complainant was admitted on 11.08.2011 in Fortis Hospital for above surgery and discharged on 18.08.2011 after TKR and advice to follow up. Senior Orthopedic Surgeon of ECHS/Army Authorities advised the complainant firstly to go for special implant and custom knee solutions. After receiving the complaint, the US company , who has manufactured the custom size implants for the patient, was also approached and they have forwarded the record of the patient. The implants were made precisely to the size of the patient, as per his MRI, which was sent to them. The complainant has never consulted OPs from 18.08.2011 to 05.07.2014, which proved this fact that surgery was a success in this case. On merits, OPs no.3 and 4 contested the complaint of the complainant forcefully. It was pleaded that complainant was suffering from knee problem and consulted senior orthopedic surgeon of ECHS/Army Authorities firstly, who had advised him to go in for special implant and custom knee solutions with answering OPs. Import for the special implants according to size and need of the patient was made from U.S. The consent for surgery was taken, when the patient was admitted in the hospital and no further consent was required particularly, as it was only the patient, who requested the company to manufacture customer's knee according to his size, which was done in this case. He never approached the OPs no.3 and 4 after surgery with any complaint being after effect of surgery. As per last X-ray radiologically, his joint was normal. OPs no.3 and 4 denied this fact that after surgery, his alignment was not correct. His burning sensation could have been associated with a long standing spine problem. Any negligence was denied by OPs no.3 and 4 in this case on his part. The TRUMATCH implants were conducted by Dr. Manuj Wadhwa, even after joining Max Hospital and it is not admitted that no TRUMATCH implantation was carried out thereaftrer. It was denied that any experimentation was carried out on the complainant in this case by OPs. Any verbal communication between complainant and the doctor with regard to defective service was vehemently denied by answering OPs. OPs no.3 and 4 further averred that surgeon cannot give guarantee of 100% cure of the disease to the patient. OPs no.3 and 4 controverted the other averments of the complainant and prayed for dismissal of the complaint.
4. The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-2 to Ex.C-17, copies of newspaper cuttings Ex.C-1/A to Ex.C-1/G and closed the evidence. As against it; OPs 1, 2 and 5 tendered in evidence affidavit of Mr. Abhijit Singh working as Facility Director Fortis Hospital Mohali Ex.OP-1/A, copy of power of attorney Ex.OP-1, affidavit of Deepak Kumar working as Senior Assistant Medical Record Fortis Hospital Ex.OP-2/A, copy of medical record of patient Ex.OP-2 (total pages 123) and closed the evidence. OPs no.3 and 4 tendered in evidence affidavit of Dr. Manuj Wahdwa Director and Head of Max Elite Institute of Orthopedics and Joint Replacement Ex.OP3-4/A along with copies of documents Ex.OP3-4/1 to Ex.OP3-4/3 and closed the evidence.
5. We have heard learned counsel for the parties and also examined the record of the case. We have also examined the written submissions placed on record in this case by the complainant. The complainant also filed detailed rejoinder to the written statement of OPs reiterating his version, as pleaded in the complaint and denying the allegations of OPs. The complainant tendered his affidavit Ex.CA in evidence on the record in support of his case. The complainant stated that he was suffering from knee problem for some time, being a retired defense person. He complained it to ECHS Clinic Chandigarh in February 2011. He further stated that there was no Orthopedic Surgeon, authorized to ECHS Clinic Chandigarh, therefore, the ECHS Chandigarh referred him to their empanelled Fortis Hospital Mohali for investigation and treatment. He further deposed that he was examined by doctor on 15.02.2011 at Fortis Hospital and thereafter by Dr. Manuj Wadhwa Head of Department Joint Replacement Unit of Fortis Hospital Mohali. Dr. Manuj Wadhwa advised him that his both knees were in bad condition and needed replacement. The doctor Manuj Wadha further confided to him that for 4th general trumatch (custom knee solutions) and special implant was the latest technology of USA Company introduced by Fortis Hospital Mohali. He introduced him with the fact that Trumatch (custom knee solutions) and special implant would be the most suitable for him. He further stated that Dr. Wadhwa also showed him the publication and cuttings in the newspapers about this technology. He further deposed that Dr. Manuj Wadhwa advised him in writing for B/L TKR 4th Generation Trumatch (custom knee solutions) and special implant surgery. Newspaper clippings are Ex.C-1/A to Ex.C-1/G. Recommendation of Dr. Wadhwa Ex.C-2. He further testified that total cost of the surgery was Rs. 419830/- and Rs.348212.00 was to be paid by ECHS out of them and he was to pay balance payment of Rs.1,17,330/- from his own pocket, as per document Ex.C-3 on the record. This witness has further stated that he approached Army Headquarter to obtain special implant and custom knee solutions sanction and , vide Ex.C-4, the approval was granted to him by Army Authorities, vide Ex.C-5 for this surgery, which was submitted by him to Fortis Hospital. This witness further maintained stated that he deposited Rs.1,10,000/- with OPs, vide receipts Ex.C-6 and Ex.C-7 on the record. He further deposed that he was admitted in Fortis Hospital on 11.08.2011, as advised by Dr. Manuj Wadhwa and prescription slip is Ex.C-8 on the record for his Bilateral Total Knee Replacement and he was discharged from the hospital on 18.08.2011. The amount of Rs. 348212/- was paid by ECHS to Fortis Hospital for his above treatment, vide Ex.C-9. This witness further stated that in the last week of August 2011 at the time of removal of knee stitches, he observed that his right leg joint alignment was not correct and he immediately complained about it to Dr. Manuj Wadhwa, who advised his for physiotherapy to set it right. He further stated that he approached Dr. Manuj Wadhwa again on 04.09.2011 thereafter on 16.09.2011, who asked him to continue with physiotherapy. This witness further stated that his right leg alignment had not shown any improvement and he consulted Dr. Harsimran Singh Orthopedic Surgeon of Fortis Hospital on 05.07.2014, who advised medicines to him, vide Ex.C-11. This witness has further maintained stated that he visited Fortis Hospital on 13.03.2015 and consulted Dr. Harsimran Singh Senior Orthopedic Surgeon, who advised for Revision TKRL. He further stated that he was honoured by Chandigarh Administration, vide Ex.C-13 on the record, as a distinguished sportsman. He alleged medical negligence on the part of OPs in bringing deformity to him. He further stated that Dr. Manuj Wadhwa did lot of publications, vide Ex.C-14 on the record. He further stated that Fortis Hospital stopped 4th general TRUMATCH Custom Knee Solution and Special Implant after observing him. He applied for supplying the medical record to OPs, which has not been received by him and relied upon Ex.C-16 in this regard. He alleged medical negligence on the part of OPs and further stated even Parveen Jhingal's case was also spoiled by OPs and relied upon Ex.C-17 to buttress it.
6. OPs also led rebuttal evidence on the record to refute the evidence of the complainant. OPs no.1, 2 and 5 tendered in evidence affidavit of Dr. Abhijit Singh Facility Director Fortis Hospital Mohali. Ex.OP-1/A on the record. He denied any medical negligence on the part of OPs in this case. He stated that complainant is an ex-army officer and he was advised for custom-made knee implant by the senior Orthopedic surgeon of ECHS. Thereafter, he consulted Dr. Manuj Wadhwa at Fortis Hospital for undergoing customized knee implant. Dr. Wadhwa explained him regarding Trumatch knee implants , wherein CT scan of an individual is taken and sent to the manufacturer of the implants. The implants were received, the complainant was admitted in Fortis Hospital under treatment of Dr. Wadhwa on 11.08.2011 and he underwent bilateral knee replacement on 12.08.2011. After installation of the Trumatch implants, he was discharged from the hospital on 18.08.2011. He further stated that complainant complained about the problem after 41/2years for the first time only. He has never consulted either Dr. Manuj Wadhwa or OP hospital in the meantime about his above surgery complication. This witness denied any medical negligence on the part of OPs. Affidavit of Deepak Kumar Senior Assistant Medical Records Fortis Hospital Ex.OP-2/A is on the record. Ex.OP-2 is contents of treatment file of the complainant at Fortis Hospital Mohali produced on the record. OPs no.3 and 4 tendered in evidence affidavit of Dr. Manuj Wadhwa Ex.OP-3/4-A on the record. This witness testified that he is a qualified Orthopedician and has 30 years experience to his credit. He stated that the complainant was suffering from knee problem and he consulted senior Orthopedic Surgeon of ECHS /Army Authorities first of all, who advised him to go in for bilateral knee replacement and custom knee solutions. He further stated that recommendation for bilateral knee replacement and custom knee solutions were made to complainant by Orthopedic Surgeon of ECHS firstly and not by this witness. The complainant willingly opted for surgery of TKR and opted for Trumatch (custom knee solution), which was performed at Fortis Hospital Mohali on him. After obtaining the details of cost working for trumatch and normal implants, as approved by ECHS , the complainant moved the representation to Army Head Quarter on 11.04.2011 for permission of trumatch implants, though he was referred for normal implants by ECHS on 02.04.2011. He was aware that the jigs to be manufactured by the company in US would take about three months for customization and would cost him dearly. Since 02.04.2011, he waited for surgery to be performed on 11.08.2011, because as per complainant himself, he was recommended for custom made implants by doctors of ECHS. He deposed that complainant wrongly alleged that alignment of his right leg was not correct after surgery. A person who has got operated in 2011 never complained or approached the doctor for 4 to 5 years and then suddenly after about 4 years and 8 months he sprang up and filed the instant complaint. Dr. Harsimran Singh has not written in prescription slip specifically that revision of TKR was required because of defect or negligence in the surgery. The complainant himself waited for 3-5 months for 'trumatch' which was a long period and suffering patients were not willing to wait for such a long period in normal course of events. Any medical negligence on the part of OPs was vehemently denied by this witness in his testimony. Ex.OP3-4/1 is email regarding details of 'trumach'. Ex.3-4/2 is trumatch confidential information on the record.
7. Firstly, we touch with this point, as to whether it was Dr. Manuj Wadhwa, who induced and recommended the complainant to go in for 'trumatch' (custom knee solution and special implant) for his knee replacement surgery in this case. The counsel for complainant contended that Dr. Manuj Wadhwa had shown many publications to complainant and thereby induced him for undergoing above surgery. The complainant would not have undergone this surgery, but for the inducement and assurances of Dr. Wadhwa, as argued by counsel for complainant. We have gone through the affidavit filed by the complainant on the record in his evidence, vide Ex.C-A. The complainant has stated in his affidavit on oath before us that Dr. Manuj Wadhwa examined him and advised him for trumatch (custom knee solution and special implant) after showing him various publications and newspaper reports, vide Ex.C-1 on the record. On the other hand, version of OPs, as unfolded in the respective affidavit of Dr. Abhijit Singh Ex.OP-1/A on behalf of OPs no.1, 2 and 5 is that complainant is an army officer and he was advised for (custom knee solution and special implant) by senior orthopedic surgeon of ECHS only in this case. Similarly, Dr. Manuj Wadhwa Orthopedic Surgeon filed his version in his affidavit Ex.OP-3-4/1 and stated on oath that complainant consulted Senior Orthopedic Surgeon of ECHS, who advised him to go in for (custom knee solution and special implant). The matter can be clinched by a reference to the pleadings of the complainant contained in para no.2 of the complaint. The complainant has specifically pleaded this fact in paragraph no.2 of the complaint that he was suffering from knee problem and consulted Senior Orthopedic Surgeon of ECHS ,who advised him to go in for special implant and custom knee solutions and complainant discussed the matter with the consultant at Fortis Hospital Mohali thereafter. The version of the complainant contained in his complaint, which is verified to be correct and affidavit has been filed by complainant dated 12.01.2016 verifying the complainant's version on oath in that regard. The contradictory version of the complainant appeared in his pleadings as well as in his affidavit on oath on this particular point. The pleadings are foundation of the claim of the parties and complainant cannot back out admission contained in para no.2 of the complaint duly supported by his affidavit to the effect that he consulted Senior Orthopedic Surgeon of ECHS /Army Authorities, who advised him to go in for special implant and custom knee solutions. The case of the complainant fails on account of his contradictory version on this point that it was Dr.Manuj Wadhwa Orthopedic Surgeon, who induced him to in go for this surgery by showing him various newspapers, cuttings and literature and same is rejected by us.
8. The next point is with regard to amounts charged by OPs. The complainant, being an Ex-army serviceman, the substantial amount of Rs. 348212/- was paid by Army Authorities for his treatment, as admitted by OPs. The complainant paid balance amount from his own pocket to the OPs for this surgery. The surgery was carried out on the complainant by Dr. Manuj Wadhwa, which is not a disputed fact in this case. The grievance of the complainant is that alignment of his right leg was not correct and there was pain in his left leg as well after surgery. He stated in his affidavit that above deformity was caused to him due to surgery conducted in a negligent manner by Dr. Manuj Wadhwa at Fortis Hospital. On the other hand, Abhijit Singh, who appeared on behalf of Fortis Hospital and tendered his affidavit Ex.OP-1/A and Dr. Manuj Wadhwa, who tendered his affidavit Ex.OP-3-4/A specifically denied any medical negligence on the part of OPs in this case. It is settled principle of law that whosoever alleges medical negligence has to prove the same before the Forum. We have examined the written submissions of complainant as well as entire evidence on the record. There is only affidavit of complainant on the record to prove the alleged defective surgery conducted by OPs. On the other hand, Dr. Manuj Wadhwa outright denied this fact in his affidavit Ex.3-4/A on the record by disowning it. He stated in his affidavit that had there been any defect in his surgery, he would have immediately contacted him for the same. The complainant remained satisfied and has not approached him thereafter at any time. We find that this is case of affidavit versus affidavit between complainant and Dr. Manuj Wadhwa Surgeon on the record. The complainant seeks support from document Ex.C-12 dated 13.03.2015, wherein Revision TRKL was recorded by Dr. Harsimran Singh. We are unable to make out from this 'revision TKRL' that it indicates any defect in the previous surgery of complainant. Even date 13.03.2015 on this document is overwritten, as contended by counsel for OPs making it a suspicious one. The submission of counsel for OPs is that it was for the year 2016, which has been overwritten to 13.03.2015 by means of material alteration of the date on this document dated 13.03.2015, being the prescription slip of Dr. Harsimran Singh. We find weightage in the submission of OPs that in above document Ex.C-12, it is nowhere pointed out by Dr. Harsimran Singh that there was any defect in the surgery conducted previously on the complainant. There is no affidavit of Dr. Harsimran Singh on the record to this effect as well. Slip Ex.C-11 dated 05.07.2014 of Dr. Harsimran Singh is also on the record, prescribing two medicines to the complainant only. We cannot make out from Ex.C-11 that the same relates to medical negligence on the part of OPs in this case even in a remote manner. There is no expert persons report adduced by complainant on the record to prove any medical negligence on the part of OPs in this case. Dr. Manuj Wadhwa has categorically deposed in his testimony that the latest x-ray radiological report of complainant shows that no such problem existed in the joint. Dr. Manuj Wadhwa stated that patient's last follow up was on 28.11.2011 and thereafter he never came up for his follow up, meaning thereby his surgery was correct.
9. Dr. Manuj Wadhwa stated in his affidavit Ex.3-4/A that complainant moved representation to Army Headquarter on 11.04.2011 for permission of 'trumatch' implants by ECHS on 02.04.2011. He was aware that the jigs were to be manufactured by the company in US wouldl take about 3 months for customization and would cost an arm and leg. The complainant waited for surgery to be performed on 11.08.2011 since 02.04.2011, meaning thereby he willingly opted for this surgery and waited for such a long time. This witness has further stated that jigs were customized according to the scans of the complainant and were not on any trial version. The planning and cuts are specific to the individual of these jigs. The complete details thereof were also provided to the patient and record of the same has been recalled from the manufacturing company in US. He further testified that customized surgical plan is devised from 3 D model and once approved, patient's specific jigs are made to that patient, which are then sent to India and this surgery since customized is very precise to that patient. He further testified that since jigs are precise, so there is no play to change the plan on table, when jigs are fixed to bone. The complainant stated that Dr. Harsimran Singh told him about the defects in the above surgery, but there is no such affidavit of Dr. Harsimran Singh to this effect on the file. This witness further stated that there can be many reasons for revision, but no alignment defect during surgery, as the jigs were manufactured according to precise size of the patient by the manufacturing company. Merely near about five years period, the complainant was advised for revision of left knee, which would not mean that previous surgery was not correctly performed by Dr. Manuj Wadhwa at Fortis Hospital Mohali.
10. Apex Court has held in "Kusum Batra and others versus Batra Hospital & Medical Research Centre and others"reported in 1(2010) CPJ 29 (SC) that respondent consented for choice of surgery after various options explained to him. Decision of the doctor was not erroneous to prove it as professional negligence. In the instant case, since Orthopedic Surgeon of ECHS recommended the complainant for this implant solution and hence it cannot be said to be professional negligence. It is not proved on the record that this treatment provided to the complainant by means of surgery was not recognized one by medical fraternity in the standard medical literature, as held by Apex Court in the above authority. The negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. He would not be liable, if the course of action chosen by him was acceptable to the medical profession. No doctor can assure the recovery to the patient from any complication. As long as they performed their duty with reasonable skill according to medical standard practice and they are duly qualified in that matter, hence the doctor cannot be held medically negligent. The doctor never gives guarantee to cure the patient and he only treats the patient in a reasonable manner according to standard protocol, even if patient does not respond to treatment, it cannot be said that it is a case of medical negligence of the doctor. Negligence is the breach of a duty exercised 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. It would not be conducive to the efficiency of the medical profession, if no doctor could administer medicine without a halter round his neck. The medical professionals are entitled to get protection, so long as they perform their duties with reasonable skill and competence and in the interest of the patients.
11. Similarly, the Apex Court has held in "Jacob Mathew versus State of Punjab"reported in III (2005) CPJ 9 (SC)that an error of judgment on the part of professional is not negligence per se. No sensible professional would intentionally commit an act or omission, which would result in loss or injury to the patient, as the professional reputation of the person is at stake as well. A surgeon with shaky hands under fear of legal action cannot perform a successful operation. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. There is categorical statement of Dr. Manuj Wadhwa and other OPs that latest x-ray of the complainant revealed no such defect in his joint of knee. This fact remained unrebutted, as recorded by complainant in this case. The complainant has not examined any expert witness on the file to prove his assertions. Even affidavit of Dr. Harsimran Singh has not been placed on record on which basis, he concluded the revision of TKRL as medical negligence of OPs. We find no substance in the version of the complainant. Trumatch solutions uses are advancements in technology to provide surgeons with personalized solutions through patient-specific instruments. These instruments help the surgeon to obtain a precise fit of the implant. The implants helps reduce a patient's pain and restore their mobility. There is a little scope of use of physiotherapy in such type of patients, where customized implants is implanted because as per their precise nature, it was strictly prepared on the basis of CT scan and MRI. We find no substance in the version of the complainant that surgery was defective one being the outcome of medical negligence of OPs.
12. Had the complainant found this surgery being defective, he would not have sat silent over it for four or five years and would have immediately contacted Dr. Manuj Wadhwa in that regard. From perusal of the treatment file of the complainant as well as case of the complainant, we find that complainant has not contacted Dr. Manuj Aggarwal after the surgery in this case at any time. Thereafter complainant has also not contacted any other Orthopedician Surgeon. The date of prescription slip was overwritten, indicating that it was of year 2016. Consequently, these facts go a long way in proving that complainant remained sat silent over the matter and came up with this complaint, after lapse of limitation period, thereafter also he failed to prove any negligence on the part of OPs in this case.
13. Now, we deal with this point, as to whether complaint is within time or not. The specific objection has been raised by counsel for OPs that complaint is not within time. On the other hand, version of counsel for complainant is that there is continuing cause of action in this case and hence complaint is within time. We find from perusal of complaint that complainant has pleaded in paragraph no. 11 of the complaint that at the time of removal of his knee stitche
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s, he observed that his right leg joint alignment was not correct and he immediately complained about it to Dr. Manuj Wadhwa , who examined him and stated that it would be set right by physiotherapy. We have already observed that in customized implant, there is little scope for physiotherapy, because they are precise in nature prepared on the basis of CT scan and MRI. We gather that the complainant was aware from the time of removal of stitches, as pleaded by him in para no.11 of the complaint that alignment of his right leg was not correct, as he also experienced burning sensation in his life leg joint at that time, as per his allegations in the complaint. This fact came to the knowledge of the complainant at the time of removal of stitches in August, 2011 , as pleaded in para no.11 of the complaint by him. The submission of counsel for OPs is that it is not continuing cause of action, but the crucial fact allegedly came to the knowledge of complainant in the month of August 2011 at the time of removal of the stitches and hence complaint filed by him in the year 2016 is hopelessly time barred under Section 24-A of the Consumer Protection Act 1986 prescribing period of limitation of two years for filing the complaint from commencement of cause of action. The limitation can be condoned on proof of sufficient ground only but in the instant case, the complainant has neither moved any such application nor pleaded this fact in the complaint for condonation of any delay. Consequently, we have to determine this point, as to whether cause of action would commence in this case at the time of removal of stitches in August 2011 or it is still continuing cause of action in this complaint. The matter is not res integra. The Apex Court has held in "V.N Shrikhande (Dr.) versus Anit Sena Fernandes"reported in 2011 (1) Supreme Court Cases 53 that there are two types of effect of medical negligence i.e. patent and latent. The Apex Court applied discovery rule and observed in the cited authority that where effect of negligence is manifested, the cause of action arise on the date on which negligence was committed. However, where effect is latent, the cause of action arise when harm or injury is discovered or could have been discovered by exercising reasonable diligence. Discovery rule has been propounded in some jurisdictions in USA. In the cited authority, the operative surgeon left some gauze in the stomach of the patient and apex court applied discovery rule and held that patient could have been aware of the same much earlier by taking reasonable steps. The patient in the cited authority, remained silent for a long period and hence apex court has held complaint is barred by time. The ratio of this authority is fully applicable to the facts of the case on hand. Herein, as pleaded in para no.11 of the complaint, the alleged defect came to the knowledge of complainant in August 2011 at the time of removal of stitches. The discovery rule is now applicable in this case. Hence, filing of the complaint in the year 2016 by the complainant by not taking follow up treatment, thereafter makes it clear that complaint is barred by time having been filed after more than two years from commencement of cause of action in August 2011. Section 24-A of CP Act 1986 is negative legislation debarring the filing of time barred complaint unless accompanied by an application for condonation of delay and same is condoned. 14. As a result of our above discussion, we hold that there is no medical negligence on the part of OPs and complaint is also barred by time and same is ordered to be dismissed. 14. Arguments in this complaint were heard on 07.12.2017 and the order was reserved. Certified copies of the order be communicated to the parties under rules. 15. The complaint could not be decided within the statutory period due to heavy pendency of court cases.