State Consumer Disputes Redressal Commission, Punjab, Chandigarh

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.

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

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

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,

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

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
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

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
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

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
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

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
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

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.

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
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
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

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
14.1.2012 Ex.C/39, copy of bill dated 15.1.2012 as Ex.C/40, copy of
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
21.4.2012 as Ex.C/59, copy of summary of bills as Ex.C/60 (Colly),

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

(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
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.

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

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

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.

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
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
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

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:

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

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

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
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

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.

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
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
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

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

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

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
Synoial fluid 50-100 RBC
(sample taken on 3/9) No Organism
Soft tissue 0-1 Epithal All
(sample taken on 3/9) No organism
22/9 No PMN/No organism Sterile-48 hours

Swab-wound
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.”

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

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.

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
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.
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.

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.
- - - - - - - - - - - - - -- - - - - -
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

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
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;

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

State Consumer Disputes Redressal Commission, Punjab, Chandigarh

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State Consumer Disputes Redressal Commission, Punjab, Chandigarh

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STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,

Misc. Application No.1491 of 2018

Date of institution : 14.06.2013

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

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

Consumer Complaint under Section

For the complainant : Shri Mayank Wadhwa, Advocate

JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:

This is an application for placing on record laboratory reports of

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

been filed by the complainant.

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

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

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

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.

medical profession.” …George Bernard Shaw.

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

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

conducted. She repeatedly complained of the same to opposite

complainant subsided gradually but the pain in the right knee

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

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

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

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.

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