PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

                             CONSUMER COMPLAINT NO.66/2019

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

1. Sumit Dash,

        S/O-Arabinda Dash

          At/Po-Modipara, City/Dist-Sambalpur-768002, Odisha.

2. Arabinda Dash,

         S/O-Late Phanibhusan Dash

          At/Po-Modipara,

         City/Dist-Sambalpur-768002, Odisha. .……….......Complainants.

Vrs.

1. Dr. Suraj Jain, Orthopaedic,

(At present posted in VSSMCH/VIMSAR, Burla)

At- Doctor Colony, Burla, City/Dist-Sambalpur-768016, Odisha.

2. Dr. Sanjay Bhoi, Sparsh City Hospital,

Naya Pada, Near Golebazar, City/PO-Sambalpur-768001, Odisha.

At Present residential Doctor, Appolo Hospital, BBSR.

3. Sparsh City Hospital,

Represented by Ananya Anusuya Naik,

Naya Pada, Near Golebazar, City/PO-Sambalpur-768001, Odisha.

4. Sparsh Nurshing Home,

Represented by Dr. T.Sahu, Modipara, Near Pani Tanki,

City/PO-Sambalpur-768002, Odisha.                            ...……….Opp. Parties

Counsels:-

1. For the Complainant                   :-         Sri P.P. Panigrahi, Adv. & Associates
2. For the O.P. No.1                                     :-         Sri Surendra Mohanty, Adv. & Associates
3. For the O.P. No.2                                     :-         Sri R.N. Debata, Adv. & Associates
4. For the O.P. No.3                                     :-         Sri A.K.Mishra, Adv. & Associates
5. For the O.P. No.4                                     :-         Sri P.K.Pradhan, Adv. & Associates

Date of Filing:27.12.2023,Date of Hearing :09.05.2023,Date of Judgement : 11.07.2023

  Presented by Dr. Ramakanta Satapathy, PRESIDENT

1. The case of the Complainants is that the Complainants No.1 met an accident while he was from Sambalpur to Burla(about 16 Kms) at about 10 P.M. on 8^th Nov. 2017, sustained multiple fractures involving right leg, right foot and right hand, admitted in VSS medical college Hospital, VIMSAR at 10.30 PM. On 09.11.2017 at about 2.30 A.M. morning the attending orthopaedic doctor Mr. Suraj Jain of VIMSAR(O.P. No.1) told the Complainant No.2 and elder brother of Complainant No.1 namely Amit Kumar Dash that he can perform operation of the patient after 4 days in the Govt. hospital, however he can undertake operation on the next day in the private hospital i.e. Sparsh City Hospital, Sambalpur and suggested to shift the patient to O.P. No.3 & 4 hospital and Nurshing Home. On 09.11.2017 at about 6A.M. the patient was shifted to Sparsh City Hospital, treated and stayed for 12 days from 09.11.2017 to 20.11.2017. The Complainants paid Rs. 1,26,676/- including doctor charges Rs. 42,200/-. The cost of implant is Rs, 15,500/- and the elective surgery was preformed on 10.11.2017. The patient was on regular advice and treatment of the doctor for follow up treatment.

During pre-operative consultations the Complainant No.2 and Mr. Amit categorically requested the O.P.No.1(the main surgeon) and O.P. No.2(Asst. Surgeon) for fixation of titanium implant and not to fix stainless implant for the fractured bone (connecting knee & ankle) whatever the cost of treatment may be Inspite of insistence of titanium implant, the O.P. no.1 & 2 fixed stainless steel (The indentity of the implant: PUSHP UNI TIBIA NAIL(C/D),

10MM x 340MM, Lot No. 0312016141. The O.P. no.2 resident doctor said,

“Why to use titanium for someone who is young. Titanium is more often preferred to patients of old ages so that there won’t be more surgeries to remove the implants later. And since the patient is only 24 age right now, why to carry an implant for life time. You can remove the stainless steel implant one the bone gets united. Both the implant provides the same outcome. So it’s wiser and better to go for stainless steel.”

On 27.11.2017, the dressing of the right foot wound was done in presence of the doctor at the residence of the Complainants and he suggested that the wound is good enough now and skin grafting can be done over the wound.

On 13.12.2017, Dr. Suraj Jain Advised for skin grafting at Shree Hospital, Bhubaneswar. In Shree Hospital the patient was diagnosed PTRA of right foot for which he underwent treatment procedure Debridement + STG at Shree Hospital, Bhubaneswar (300Kms off Sambalpur) on 14.12.2017 and stayed from 13.12.2017 to 17.12.2017 with being amount of Rs. 31,180/-.

On 20.12.2017 X-rays of right hand fingers, right leg and right foot were done as per advice of O.P. No.1 and K-wires of patient’s right hand fingers were removed in the doctor’s clinic. The patient was advised orally to take physiotherapy by O.P. No.1.

On 12.01.2018, X-ray of the right foot was removed and was advised by the doctor to have X-ray of right hand fingers, right leg and right foot and prescribed Oflomac-400(antibiotic) and Cap Bonior total (vitamin for 30 days. O.P. No.1 preformed such acts at his clinic near Hgr. Hospital, Sambalpur.

On 08.03.2018 when the patient was having pain on his right ankle and there was a sign of pus formation when one of his bottom screw was fitted with the nail. On consultation O.P. No.1 advised to bring the patient to Sprash Nurshing Home. O.P. No.1 asked for x-ray, cleaned the part where pus cell located. He did not advise or recommend for nay blood test to find the extent of infection and prescribed Ozolid SR, and antibiotic for 10 days. After 10 days dose also when infection not controlled, the Complainants consulted the O.P. no.1 for advise. He suggested to wait for few days. The pain continued with same symptoms. Pain unbearable day after day with oozing out of pus from the Surgery side, near right ankle.

On 10.04.2018 when the infection condition worsen, excruciating pain evolved, the patient called Dr. Jain he replied that he was out of station and suggestedto consult Dr. Shakti Dora in his absence. Dr. Dora prescribed for CRP Test suspecting infection, X-ray of right foot along with right hand fingers. The test confirmed infection. Dr. Dora prescribed medicine for infection. He started that the alignment of right hand index finger is not proper and suggested for another surgery to fix it appropriately. CRP test was done to check information, which can indicate infection. Inflammation is part of the complex biological response of body tissue to damage cells. CRP found-57.2 (Normal range 0-6). Higher is the CRP, higher is the rate of infection.

On 20.04.2018 when O.P. no.1 returned and saw the medication of Dr. Dora. Dr. Jain replied the alignment is accurate and advised the patient not to visit Dr. Dora as he has no medical ethics. The O.P. No.1 told the patient to have X-ray of right leg along with blood tests i.e. DC, TLC & CRP. The report dated 21.04.2018 (CRP=9.4) was better controlled infection report than the O.P. No.1 (CRP-57.2).

On 21.05.2018 another CRP test was done to know the rate of infection as the patient was continuing the medicines of O.P. No.1 and infection was not in control. Pus was always going out of the infected area (near the ankle) that was located from initial stage of infection. The CRP was 8.9.

On 07.06.2018 when the patient not recovered from pain consulted Dr. Dora and by that time CRP was 8.2. Dr. Dora said that the infection was due to implant. The implant is the source of infection. The stainless steel implant is the cause of infection and it can only be controlled to a certain level by medicines. He further stated that as long as the patient is present, the infection will not be cured unless it is removed. Dr. Dora suggested the patient for two more surgeries. First one is removed the stainless steel implant and secondly after two months when the infection is removed, a titanium implant shall be implanted. Dr. Dora estimated Rs. 1.5 lakhs for the two operations. The patient felt uncomfortable when Dr. Dora opined for two more surgeries.

On 20.06.2018, the patient went to the O.P. no.1 for continued treatment regarding infection and non-leading of the-wounds. The O.P. no.1 advised for a fresh X-ray of right leg which was done and shown to him. The bone was not united. The O.P. No.1 suggested to removed the screw fitted at the bottom of the rod from where pus was oozing ovd and asked to undergo surgery which should not be delayed beyond two months.

On 03.07.2018 when the patient felt irresistible pain then contacted O.P. no.1, who was in Mumbai. The patient consulted Dr. Ashish Kumar Jose who collected pus sample and sent for cultural test to Kakkad area, prescribed some medicines on a slip of paper.

On 25.07.2018 when the patient contracted O.P. No.1 on his advice X-ray and other tests done and the O.P. No.1 conducted surgery on 27.07.2018 at Sparh Nurshing Home. The CRP was 19.3 which was rising compared to CRP-8.2 dated 06.06.2018.

On 27.07.2018, the patient undergone surgery at Sparsh Nurshing Home and two screws were removed. Dr.T.Sahu of Sparh Nurshing Home engaged one anaesthetist Dr. Ashish Mishra for administration of Spinal anaesthesia. Dr. Ashish Mishra failed seven attempts to inject Spinal anaesthesia in the lumber nerves which resulted in very extreme pain due to which patient cried out. It was not known why the said doctor failed to administer anaesthesia. Seeing patient crying, the attendant became reactive and complaint T.Sahu (O.P. No.4). The O.P. No.4 Dr. Sahu hastily discharged the patient on the next day i.e. 28.07.2018 although condition of patient was not fit for discharge. Dr.Sahu was requested by Complainant No.2 and his elder son to keep the patient at least one more day which was turned down by T.Sahu, which is against professional responsibility and ethics. In the bill dated 28.07.2018 Dr. T.Sahu wilfully omitted the name of anaesthetist and another assistant surgeon on the discharge note and bill. The patient was discharged on 28.07.2018.

The patient was under post operative regular care and treatment as per the advice of the treating doctors but there was pus and pain is treatment site of right leg and it was non-healing. The O.P. No.1 on trial and error basis experimented but the pain was aggravating. As per advise of O.P. No.1 & 2 the patient was admitted on 27.07.2018 in O.P. No.4 Nurshing Home and discharged on 28.07.2018 after revision operation. The diagnosis was INFECTED IMPLANT (LOWER END TIBIA). The treatment under taken in O.P. No.4 was endorsed by O.P. No.1 as “Both bone leg OPTD with tibia inter locking on 10.11.2017. Now C/O discharging pus from lower end tibia. Under SA both the screw of lower end was removed, Debridement, done. Stiches given. Dressing changed after 24 hours. He was kept on IV fluid, inj. tocef amium and other supportive therapy. Discharged on request with advice. The operation failed as the problem further continued with sufferings after removal of stiches on 06.08.2018 the pus was oozing out. The O.P. No.1 prescribed “Meropenum” (Rs. 3000/- per injection) antibiotic. The Complainants lost faith on O.P. No.1 and completely fed up with treatment when the bone was united due to the infection. Further the ring finger and little finger of right hand also not treated with proper alignment. For negligence of the O.Ps the patient could not restore his functional workability of foot and leg, a handsome young person not only became handicapped but also lost his promising career running doctor to doctor and hospital to hospital.

2. The Complainant No.1 was compelled to move to seven Hills Hospital, Vishakhapattanam and treated from 14.08.2018 to 27.08.2018 and paid bill of Rs. 1,38,397/- for the negligence of O.Ps the patient was warranted a corrective surgery. Follow up treatment also continued, admitted on 31.12.2018 and discharged on 03.01.2019 and spent Rs. 31,503/-. After examing the patient, the facture union in progress in the right tibia, removal of ilizarov ring fixator was done under G.A. and discharged after advice.

The revision Surgery and corrective Surgery due to O.Ps resulted multiple deformities in operation/treatment site and the patient has undergone several stages of treatments, operations and physiotherapy to restore possible functional normally.

The patient thereafter was taken to Shree Hospital Bhubaneswar and admitted from 17.04.2019 to 22.04.2019 and spent Rs. 60,754/-. The patient is still under treatment, lost his job, seniority and earnings. For deficiency in service the Complaint was filed.

3. The O.P. No.1 in his version challenged the maintainability of the case. The O.P. No.1 has provided best possible treatment to the Complainant No.1. On 8^th -9^th Nov 2017 the patient was admitted in VIMSAR, Burla under Dr. T.R. Dalei, Asst. Professor. The patient left the hospital on the very same day defying the medical advice(LAMA) of the treating doctor i.e. Dr. T.R. Dalei. There was no negligence on the part of the answering O.P. The patient had serious multiple crushed injuries which had its own obvious pain, agony, expenses in treatment and sufficient time span needed for recovery. It is also denied that the deformity of right hand and right feet and shortening of right leg occurred due to any negligence in treatment causing lasting repercussion through out life. The allegations of the Complainants are denied. The O.P. No.1 visited the patient at the call of the Sparsh City Hospital, Sambalpur only and treated/operated the patient as per the guideline and procedure ordinarily and commonly adopted in the medical science. The O.P. No.1 has accepted genuine consultation charges and surgeon charges for the service rendered but no aware what exactly the total bill was for the Hospital. The O.P. No.1 has not charged Rs. 42,200/- from the Complainants. Required surgery on foot and leg of the patient was done on 10.11.2017, which was a complex nature. On 13.11.2017 another operation was conducted on the hand of the patient. The Complainant No.2, an advocate opted for use of S.S. implants (O.P. No.1 suggested for use of titanium implants, which were costlier but the Complainant No.2 insisted and opted for stainless steel implant due to his financial constrains). The patient was under regular and vigilant case till 20.11.2017. The patient preferred to leave hospital thereafter against the medical advice on their own risk taking plea of extravagance. The Complainants are disobedient and in both the hospital resorted to left Against Medical Advice(LAMA). The plain paper advice dated 20.11.2019 is denied and manufactured one. The dressing of wounds and alleged suggestions of skin grafting are denied. The expenses in Shree Hospital, Bhubaneswar is not known to the answering O.P.

On 20.12.2017 the O.P. No.1 did not find any abnormality in the patient. The O.P. No.1 never suggested the Complainants to consult Dr. Sakti Dora and the allegations are denied, rather after 08.03.2018 till 20.04.2018 the Complainants did not visit the O.P. No.1. CRP is not meant for measuring the rate of infection exclusively as CRP may very well rise for several other causes besides infection. The O.P. No.1 was not consulted till 20.06.2018.

Dr. Ajit Mishra was engaged as anaesthesia doctor to assist on 27.07.2018 operation when two screws were successfully removed. The allegation of injection of spinal anaesthesia in the lumber nerves are denied.

The O.P. No.1 Co-operated the patient and tried to provide all possible means and skills to eradicate the ailment. The Complainant No.1 sustained multiple injuries, defying attitude in relation to medical advice, negligent and insincere attitude in treatment, impatient and rapid switching over of medical consultation with lack of trust and consistency etc are the causes leading to file this case. There is no cause of action and needs dismissal of the case.

4. The O.P. No.2 in his version submitted that there is no any deficiency in service on the part of the O.P. No.2. The answering O.P. is a resident doctor attached to O.P. No.3. O.P. No.3 is not a unit of O.P.No.2. Complainants preferred OP NO.3 than VIMSAR, Burla for better treatment. It is false that the patient has to undergo revision of surgery, corrective surgeries, cosmetic surgery and prolonged treatments continuing with several rounds of physiotherapy as the direct consequence of negligent treatment. The deformity of the hand, feet and the shortening of the leg was not due to any negligence in treatment rather was obvious due to the complexity, seriousness of crushed multiple bony injuries sustained in he accident.

As per their sweet will the patient came to O.P.no.3 hospital on 09.11.2017, the O.P. No.1 conducted the required surgery on food and leg on 10.11.2017 which were complex in nature and answering O.P. No.2 was the Asst. surgeon. On 13.11.2017 again another operation was conducted on the hand of complainant No.1. Complainant No.1 was explained and suggested of the implants to be used on 09.11.2017. O.P. No.1 suggested for use of Titanium implants, which are costlier, but the Complainant No.2 insisted and opted for stainless steel. Till 20.11.2017, the patient was under regular and vigilant case. The Complainants are disobedient and opted for dressing regularly they resorted for LAMA. It is false that a prescription containing medicine and advice was issued on a plain paper on 20.11.2019 at the time of discharge of the patient. It is manufactured one.

The Sparsh City Hospital and Sparsh Nurshing Home are separate clinical establishments. The owner partner T.Sahu of Sparsh Nurshing Home was the anaesthetist who attend the patient with another doctor Sr. Ajit Kumar Mishra at Sparsh City Hospital and that Dr. Bhoi was his partner and was also the resisdent doctor surgeon and consulting doctor at Sparsh City Hospital and Dr. Jain and Dr. Bhoi conveniently refer and attend the patients and interchangeable use both Nurshing Home and Sparsh City Hospital are false.

The O.P. No.2 is not negligent in his service.

5. The O.P. No.3 filed version through Ananya Anusuya Naik. The O.P. no.1 is a govt. orthopaedic doctor of VIMSAR, Burla and Sparsh City Hospital, Sambalpur is owned by Aanaya Anuysuya Naik. The O.P. No.2 is a resident doctor attached to O.P. No.3. The Complainants have purposefully foisted baseless allegations. On 09.11.2017 the patient was admitted. The O.P. No.1 being called treated the patient as per guideline and procedure. The Complainant No.2 opted for S.S. implants although suggestion was made for Titanium implants. The patient was under regular and vigilant care till 20.11.2017. As per own will the patient opted for leave hospital and preferred dressing in his home. The patient preferred LAMA. The Complainants in advance paid the O.P. No.3 Rs. 57,806.68P out of total billed amount Rs. 1,26,676.68P. The alleged piece of paper containing advice and prescription dated 20.11.2019 is manufactured one. The Complainant No.1 quarrelled and left hospital without paying balance of Rs. 68,870.68P.

Sparsh Nurshing Home and Sparsh City Hospital are two different clinical establishments. All reasonable care and facilities have been provided to the patient. The O.P. no.3 is neither negligent nor deficient in their service. All the allegations are denied.

6. The O.P. No.4 in its version submitted that Complainant No.2 is not a necessary party. On 27.07.2018 the Complainant No.1 was admitted to Nurshing Home and undergone surgery and two screws were successfully removed from the bottom of the implant by Dr. S.Jain. The allegation Dr. T.Sahu of Sparsh Nurshing Home had engaged  one anaesthetist Dr. AShis Mishra for administration of Spinal Anaesthesia and Dr. Ashish Mishra made seven failed attempts to inject spinal anaesthesia in the lumber nerves are false. There is no doctor namely T.Sahu or Dr. Ashish Mishra in the nurshing Home. Dr. R.K. Sahu is attached to nurshing home. Dr. Ajit Mishra is skilled in his job. The patient was advised to stay in nurshing home for post operative care but Complainant No.2 insisted for discharge of Complainant No.1 against the advise of the doctor. Dr. T.Sahu wilfully omitted the name of the anaesthetist and another assistant surgeon, allegations are not correct. Both O.P. No.3 and O.P. No.4 are separate establishments.

The O.P. No.4 is not a necessary party and also not negligent in rendering service.

7. The Complainants have filed the following documents:

1. Copy of poly bag issued by Sparsh City Hospital having X-ray copies.
2. Prescription issued on 20.11.2017, at the Hospital of Dr. Jain.
3. Invoice dated 20.11.2017 for Rs. 1,26,000/-.
4. Certificate dated 14.11.2017 issued by Sparsh City Hospital.
5. Discharge brief dated 16.12.2014 of Shree Hospital.
6. Bill dated 17.12.2017 for Rs. 31,180/- of Shree Hospital.
7. Advice note of Dr. Jain for X-ray dated 20.12.2017.
8. Advice note of Dr. Jain dated 12.01.2018
9. X-ray advice note dated 08.03.2018.
10. C.R.P. Test report dated 11.04.2018.
11. Prescription of Dr. Jain dated 20.04.2018.
12. CRP Test report dated 21.04.2018.
13. CRP Test report dated 21.05.2018.
14. CRP Test report dated 06.06.2018.
15. Prescription of Dr. Dora dated 07.06.2018
16. Prescription of Dr. Jain dated 20.06.2018
17. Culture and sensitivity report of Kakkad Diagnostices.
18. Prescription of Dr. Jain dated 25.07.2018.
19. CRP Report dated 27.07.2018.
20. Discharge note dated 28.07.2018, Sparsh Nurshing Home.
21. Bill dated 28.07.2018 for Rs. 10,700/- of Sparsh Nurshing Home.
22. Treatment record dated 06.08.2018 of Dr. Jain.
23. Discharge Summary dated 27.08.2018 of Seven Hills Hospital.
24. Final bill dated 28.08.2018 for Rs. 1,38,397/- of seven Hills Hospital.
25. Discharge summary dated 03.01.2019 of Seven Hills Hospital.
26. Final Bill dated 03.01.2019 for Rs. 31,503/- of Sevena Hills Hospital.
27. Discharge Summary dated 22.04.2019 of Shree Hospital.
28. Final Bill dated 22.04.2019 for Rs. 60,754/- of Shree Hospital.
29. Appointment letter of Infosys dated 02.07.2018.
30. Appointment letter of Infosys dated 06.11.2018.

The O.Ps have not filed any documents except copy of policy No. 63400491810000003 National Insurance Co. Ltd.

8. Revision Petition No. 11/2021 was preferred by Dr. Suraj Kumar Jain before hon’ble State Commission challenging order dated 18.01.2021 passed by this Commission. Likewise Revision Petition No. 18/2021 was oreferred by Sparh Nurshing Home, Sambalpur through Mrs Manasi Sahu, Partner W/ODr. R.K. Sahu challenging the order dated 24.02.2021 passed by this Commission.

The hon’ble State Commission directed to hear the matter on maintainability first and then decide the matter on merit. On 30.05.2023 order was passed by maintainability of the complaint. Thereafter the parties were given opportunities to place their cases. After hearing both the side on 19.06.2023 this complaint was posted for judgement.

9. From the pleading of the parties and documents filed the following issues are framed:

                                                                                             ISSUES

1. Whether this complaint suffers from mis-joinder of necessary parties and non-joinder of necessary parties?
2. Are the O.Ps deficient in their service causing thereby the Complainant No.1 sustained deformity in his body?
3. Whether due to deficiency in service the Complainant lost his job and sustained injury.
4. What relief the Complainants are entitled to get?

Issue No.1: Whether this complaint suffers from mis-joinder of necessary parties and non-joinder of necessary parties?

The O.P. No.4 Sparsh Nurshing Home represented through its partner Smt. Manasi Sahu, W/O- Dr. R.K. Sahu, who agitated this matter and admitted that wrongly the Complainants have mentioned that it is represented through Dr. T.Sahu. It is the further submission of O.P. No.4 that the Nurshing Home is insured with National Insurance Co. Ltd. vide policy No. 63400491810000003 w.e.f. 04.07.2018 to 03.07.2019. Further it was submitted that the O.P. No.4 is not a necessary party and if at all liable the insurance Company has not been made a party.

It is further submitted by O.P. No.2 that the Complainant No.2 is the father of the patient, Complainant No.1. The Complainant No.1 is a major and the Complainant No.2 is not a necessary party.

It is the admission of both the parties that the Complainant No.1 is the injured patient who met road accident on 8^th Nov 2017 10P.M. causing multiple fractures involving right leg, right foot and right hand and admitted to VSS Medical College Hospital i.e VIMSAR. At about 2.30 A.M. night on 09.11.2017 the O.P. No.1 Dr. Suraj Jain of VIMSAR attended the patient. On 09.11.2017 to 20.11.2017 the Complainant No.1 was under the treatment of Sparsh City Hospital, Sambalpur. On 27.07.2018 the patient underwent surgery at Sparsh Nurshing Home and two screws were removed from the bottom of the implant near the ankle.

Although the Complainants have mentioned name of Dr.T.Sahu but the O.P. No.4 categorically mentioned it as Dr. R.K. Sahu and there is  no such Dr. T. Sahu working in Sparsh Nurshing Home, Sambalpur. Although the Complainants mentioned the name of Dr. T. Sahu and Dr. Ashish Mishra but failed to establish that the injection made by T.Sahu in lumber nerves, made seven attempts, due to pain the patient cried out etc. are only allegations but no any documentary evidence filed in that regard. So the allegations are not acceptable.

Further for brevity the O.P. no.4 mentioned that the Sparsh Nurshing Home is having insurance indemnity and the complaints not made party to the insurance company. It is the admission of all the parties that on 27.07.2018 the patient underwent surgery at Sparsh Nurshing Home and two screws were removed. The O.P. No.4 is proforma O.P. who admits the surgery of Complainant No.1. Further the Complainants have not made party to the insurance company, who will be liable in case of liability fixed against O.P. No.4.

The Complainants failed to establish that O.P. No.4 is liable by incorporating the name of Dr. T. Sahu and Dr. Ashish Mishra. Accordingly, the insurance Company is not a necessary party in this case.

Coming to the allegation of O.P. No.4 that Complainant No.2 is not a necessary party. Admittedly by the Complainants are son and father respectively. Complainant No.1 is the patient who has undergone surgery and the Complainant No.2, father has sustained financial burden, Physical and mental burden also. Being aggrieved filed this complaint. Accordingly, the issue is answered in favour of Complainants and O.P. No.4 is simply a proforma O.P.

Issue No.2: Are the O.Ps deficient in their service causing thereby the Complainant No.1 sustained deformity in his body?

1. Perused the poly bag copy of Sparsh City Hospital, Sambalpur. As per the kits it is a multi-speciality Hospital with ICU, NICU with Ventilator round the clock Dialysis facilities are available. It is a unit of Dr. Sanjaya Bhoi. The O.P. No.3 in its version submitted that the O.P. No.1 is a government Orthopaedic doctor at VIMSAR, Burla and O.P. No.3 owned Sparsh City Hospital, Sambalpur and the O.P. no.2 was attached with O.P. No.3 as resident doctor. In one hand Dr. Sanjay Bhoi claims that Sparsh Nushing Home is his unit and O.P. No.3 through Ananya Anusuya Naik claim that she is the owner. It proves that the O.P. No.2 and O.P. No.3 are the owners of Sparsh Nurshing Home, Sambalpur. If the Statement of O.P. No.3 is true then advertisement made by O.P. No.2 is misleading advertisement. In the other hand if Ananya Anusuya Naik is the owner then before filing of this Complaint, no any documents shown that she has challenged the ownership of Dr. Sanjay Kumar Bhoi. Hence misleading advertisement is proved against O.P. No.3.
2. The O.P. No.1 is a visiting doctor to O.P. No.3 Sparsh City Hospital. Likewise the O.P. No.2 is an Asst. Surgeon attached to the city hospital. Perused Annexure 3 filed by the Complainant. Dr. Suraj Kumar Jain has been paid Rs. 1800/-out of the said bill and Rs. 300/- consultation charges. Likewise, Dr. Sanjay Kumar Bhoi has received consultation charges on different occasion including dressing major charges from the Complainant. On the other hand being the part of O.P. No.3 city Hospital the contributions of O.P. No.1, 2 and other professionals can not be ignored. The ultimate benefits goes to O.P. No.3. Taking into consideration this part it can be concluded that the O.P. No.1, 2 and 3 are proper parties who have provided services to the Complainants and consideration is being paid by the Complainants.
3. The Complainants alleged that the attending orthopaedic doctor Suraj Jain of VIMSAR told the patient and his elder brother Amit Kumar Dash that he can perform operation on the patient after 4 days in the govt. hospital and he can undertake operation on the next day in the private hospital i.e. Sparsh City Hospital, Sambalpur and suggested to shift the patient to said hospital. In reply Dr. Jain submitted on 09.11.2017 Dr. T.R. Dalei, Asst. Professor was on duty as orthopaedic doctors. The very statement of Dr. Jain is

“there was no occasion to tale the parents or elder brother of the patient that he can perform operation after four days in govt. hospital, but to operate on the next day in the Sparh City Hospital of Sambalpur and suggested to shift. In fact,…………… the Complainant No.1 was disobedient enough so also the medical advice of the doctor on duty in the orthopaedic ward and left the same day and opted to shift the patient to Sparsh City Hospital, Sambalpur on their own accord.”

From the very Statement of both the parties it is clear that the patient preferred to go to O.P. no.3 for operation where O.P. No.1 operated the patient. The narration of O.P. No.1 is to save his skin as govt. doctor as he was on causality duty in VIMSAR. As operation conducted in Sparsh City Hospital and the patient stayed from 09.11.2017 to 20.11.2017 under the Supervision of Dr. Jain from this fact it is clear that the O.P. No.1 has created a story and alleged against the Complainants that the patient left hospital i.e. VIMSAR defying the medical advice(LAMA) by treating doctor Dr. T.R. Dalei.

In the present case the patient left VIMSAR and consented to attend Sparsh City Hospital fact is not important rather it is important that Dr. Jain is part and pacel of VIMSAR but attended the patient in Sparsh City Hospital and has taken his professional fees from the O.P. No.3 hospital. It is permitted in Orissa that doctors can practise privately, the medical profession.

The second point of consideration is that the patient was completely under the supervision of Dr. Jain and under the O.P. No.3. The patient stayed for 12 days starting from 09.11.2017 to 20.11.2017 and paid Rs. 1,26,676/- out of which Rs, 15,500/- is the implant charges. The surgery was made on 10.11.2017.

The main dispute in this case is use of stainless steel implant made by the O.P. No.1 in place of titanium implant for the fractured bone connecting knee and ankle. PUSHP UNI TIBIA NAIL (C/D), 10mm x 340mm Lot No. 0312016141 steel implant was used by the treating doctors. The Complainant alleged and quoted the words of O.P. no.2 Sr. Sanjay Bhoi

“Why to use titanium for some one who is young. Titanium is more often preferred to patients of old ages so that there won’t be more surgeries to remove the implants later. And since the patient is only 24 age right now, why to carry an implant for life time.  You can remove the stainless steel implant once the bone gets united, Both the implant provides the same outcome. So it’s wiser and better to go for stainless steel.” The O.P. no.2 denied the allegations and specifically denied that the O.P. no.3 could not arrange the Titanium implants. The O.P. No.3 in its reply submitted that the Complainant No.2 preferred and opted for use of implants even though the O.P. No.1 suggested for use of Titanium implant, which are costlier. The O.P. No.1 also in his version stated that he suggested for titanium implant from the statement of the parties a simple thing needs consideration that when the patient opted for Pvt. Nurshing home for treatment in place of govt. hospital, the contention of the O.Ps that due to financial stringencies the Complainant No.2 preferred S.S. implant is not acceptable. The O.Ps failed to establish the differential of S.S. implant and Titanium implant cost nor submitted the cost of titanium implant. All the O.P. No.1 to 3 have taken join hand to falsify the statement of O.P. no.2 as alleged by Complainant. It is admitted by all the parties that S.S. implant was implanted on the joints of the patient which is the root cause of dispute.

4. The third point of consideration is the CRP tests made suspecting infection on the right foot of the patient. On 08.03.2018 after examining the x-ray report the O.P. No.1 cleaned the pus cell location and only prescribed ozolid SR antibiotic medicine for 10 days. Till 10.04.2018 condition of the patient not improved and pus was oozing out. On the advice of O.P. No.1 the patient consulted Dr. Shakti Dora, Orthopaedic. C.R.P. test was done and found 57.02 which is more than the normal range(0-6)

CRP test report dated 21.04.2018-9.4. It implied the infection has been reduced with the medicines of Dr. Shakti Dora. From CRP test report dated 21.05.2018 it reveals 8.9 that means the infection is under control. Till 07.06.2018 the patient when not free from pain contacted Dr. Dora and CRP test done and found 8.2.

Dr. Jain suggested for removing the screw fitted at the bottom of the rod from where pus was oozing out. The O.P. No.1 suggested for surgery on 20.06.2018. The second operation performed by O.P. No.1 is due to improper fitting of the implant which corroborates the statement of the Complainants. This proves the negligent act of the O.P. No.1 which amounts to deficiency in service. The revision operation in Sparsh Nurshing Home done by O.P. No.1 & 2 and from admission on 27.07.2018 to 28.07.2018 is the negligent acts of the O.P. No.1 & 2. The O.P. No.1 endorsed:

“INFECTED IMPLANT(LOWER END TIBIA) Both long leg OPTD with tibia inter locking on 10.11.2017. Now C/O discharging pus from lower end tibia. Under SA both the screw of lower end was removed Debridement done. Stiches given. Dressing changed after 24 hours. He was kept on IV fluid, Inj. Tocef, amicin and other supportive therapy. Discharged on request with advice.

When the revision operation not bear any fruit the patient decided to consult in Visakhapattanam, seven Hills Hospital. Perused the diagnosis: INFECTED NON UNION-FRACTURE RIGHT TIBIA WITH IMPLANT SITU. Treatment made: patient underwent removal of the interlocking nail and screws followed by stabilisation of the fracture with ILIZAROV RING FIXATOR. APPLICATION under spinal anaesthesia.

The operation record shows: “Removal of the implant interlocking nails and screws done from the right tibia. Right tibia was fixed with ilizarov rings fixator application across the fracture site with rings were connected to the connecting rods. K-wire was fixed in the right tibia and connected to the ilizarov rings with connecting bolts.”

From the treatment history it reveals that when the revisional operation done by O.P. No.1 & 2 failed the patient was compelled to move to seven hills hospital.

The patient is capable to bear the expenses of Seven Hills Hospital and 2^nd revisional operation. This proves the wrong stand taken by O.P. No.1, 2 & 3 that the Complainant sought for S.S. implant in place of Titanium implant is not acceptable. The O.P. No.3 not also submitted the differential cost to be borne by the patient nor the stock of titanium implant in the City Hospital Money making and humanity are parallel lines. In the instant case the O.Ps used the implant available with them and when problem arose took the stand that the patient/Complainants preferred S.S. implants is not acceptable at all. It proves the deficiency in service of the O.P. No.1, 2 & 3.

The issued is answered accordingly.

Issue No.3: Whether due to deficiency in service the Complainant lost his job and sustained injury.

Perused annexure 29 of the Complainant petition. As per letter dated 02.07.2018 Sumit Kumar Dash got the job of systems Engineer and was offered as trainee of Infosys with salary of Rs. 27,084/-. Annexure 30 shows that the Complainant Sumit Kumar Dash was considered for a considerable period extention to join his job vide letter dated 06.11.2018 but due to situation supra narrated he lost his job. Loosing a job is not important but in the cruscial juncture of life, beginning stage of the career the Complainant lost his job due to contributory negligence of the O.P. no.1, 2 & 3 and the Complainant moved from one hospital to another with sufferings and pain. The loss sustained by the Complainant can not be compensated by monetary terms.

Accordingly, the issue is answered in favour of the Complainants.

Issue No.4: What relief the Complainants are entitled to get?

The Complainants spent the following amount during the revisional of surgery and Surgery in Seven Hills Hospita, Vishakhapattanam.

Annexure 21- Rs.    10,700.00

Annexure 24- Rs. 1,38,397.00

Annexure 26- Rs.    31,504.00

Annexure 28- Rs.             60,500.00

             Total Rs.  2,41,101.00

The Complainant No.1 since 02.07.2018 sustained pecuniary loss of Rs. 27,084/- per month for about 60 months which comes to Rs. 16,25,040.00 which is recoverable from the O.P. no.1, 2 & 3.

In this way Supra as discussed the O.P. No.1, 2 & 3 are liable to pay Rs. 18,66,140/- to the Complainants.

Due to deficiency in service not only the Complainant No.1 suffered but also the entire family members passed through turmoil and monetary losses. Accordingly, the Complainants are entitled for compensation.

It is ordered:

                                                                                 ORDER

The complaint is allowed on contest against the O.P. No.1, 2 & 3 and dismissed against O.P. No.4. The O.P. No.1, 2 & 3 are liable to pay Rs. 2,41,101/- to-wards medical expenses, Rs. 16,25.040/- to-wards loss of earnings to the Complainant. The O.P. No.1, 2 & 3 are jointly and severally liable to pay compensation of Rs. 20,00,000/- each and in case of non payment within one month of this order liable to pay interest @12% P.A. from date of filing till realisation.

Order pronounced in the open court on this 11^th day of July 2023.

Supply free copies to the parties.