DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
Case No. C.C. No 91 OF 2017
DATE OF FILING: 14.07.2017 DATE OF JUDGEMENT: 01.10.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : SRI KISHOR SARDAR, S/O – Panchu Ram Sardar, Residing at Village & P.O. - Belpukur, P.S. – Kulpi, District – South 24 Parganas, Pin no. – 743351.
O.P/O.Ps : 1. DR. PRABAL KANTI GAYEN, S/o – Unknown.
2. JUTHIKA JANA, D/o or W/o – Unknown.
3. SHIBANI BERA, D/o or W/o – Unknown.
4. DR. NIHAR RANJAN MONDAL, S/o – Unknown.
1 to 4 are residing at Kulpi Block, Kulpi Gramin Hospital, P.O. & P.S. – Kulpi, District – South 24 Parganas Pin no. – 743351, (Being the staff of Kulpi Hospital i.e. Dr. and Nurses).
5. DR. JAFAR ALI, S/o – Unknown.
6. “ASTHA” Maternity & Nursing Home, 5 to 6 are residing at Kapat Hat, Diamond Harbour, P.S. – Diamond Harbour, Pin no. – 743331, District – South 24 Parganas.
7. DOLON CHANPA MAL, She was the staff of Kulpi Gramin Hospital, Kulpi Block, P.O. & P.S. – Kulpi, District – South 24 Parganas, Pin no. – 743351, but she has transferred to Jagadishpur Hospital, P.H.C and her present address at Village – Jagadishpur, P.O. & P.S. – Dholahat, South 24 Parganas, Pin no. – 743399.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Having lost his right hand thumb, the complainant has filed the instant case under section 12, C.P. Act, 1986, alleging medical negligence and deficiency in service on the part of the O.P.s including the treating doctors.
Facts leading to the filing of the instant case may be epitomized as follows.
On 28.05.2017, the complainant felt severe abdominal pain and thereafter he approached Kulpi Gramin Hospital for treatment. There, doctor Nihar Ranjan Mondal i.e. O.P. no. 4 got him admitted to the hospital as an indoor patient. For administration of saline, a channel was prepared at the left hand beside the thumb with the assistance of nurses i.e. O.P. nos. 2, 3 and 7. On 30.05.2017, doctor Prabal Kanti Gayen, O.P. no. 1 made visit to the patient’s ward. That time he saw, as goes the allegation, that the said saline channel did not work. He advised to make a new channel at right hand and the new channel was accordingly made at right hand beside the thumb by the attending nurses i.e. O.P. nos. 2, 3 and 7. Some injections were also administered through that channel. After a few hours of making the channel, the patient started feeling intensive pain in his right hand and the right hand also gradually swelled. The patient requested the nurses to call the doctor, but his request cut no ice. The doctor did not come to attend the complaint of the patient that day. On 31.05.2017 O.P. 1 came and saw the patient. Having seen the patient in precarious condition, he transferred him to Diamond Harbour Hospital.
The complainant did not go to Diamond Harbour Hospital; he headed for “Astha” Nursing Home i.e. O.P. no. 6 and was admitted to that nursing home under supervision of Dr. Jafar Ali i.e. O.P. no. 5. O.P. no. 5 advised some laboratory tests and came to see that a gangrenous ulcer had developed at right hand thumb of the complainant, requiring amputation of the right hand thumb. To save the patient O.P. no. 5 amputated the right hand thumb of the complainant and thus the complainant was saved. Now the patient has filed the instant case alleging that the doctor and nurses of Kulpi Gramin Hospital did not take proper care of him and therefore he had to lose his right hand thumb. Alleging gross medical negligence against them, he prays for a hefty sum of compensation. Hence, this case.
O.P. no. 1 i.e. Dr. Prabal kanti Gayen has been contesting the case by filing W/V wherein it is contended that the case is not maintainable in law in as much as the same is bad for non-joinder of necessary party. His positive case is that on 28.05.2017, he was away from hospital duty. He resumed his duty at hospital on 29.05.2017 at about 4 p.m. So, there arises no occasion of making a new saline channel as alleged. The patient was suffering from “thrombophlebitic problem” with pancreatic problem. So, medicines were applied through IV channels in different hospitals. He never advised any nurse to push any medicine through IV channel.
On 30.05.2017, during his ward visit he saw the right hand thumb of the complainant got completely blackened. No IV injection was given to complainant, as there was no channel found, as goes injection record dated 30.05.2017 of the hospital. Hospital record shows intramuscular injection was given that day. Complainant was a patient of necrosis aggravated by long time use of tobacco and pancreatic. The patient was admitted by the O.P. no. 4 i.e. Dr. Nihar Ranjan Mondal; he prescribed medicines and also the line of treatment and he i.e. O.P. no. 1 being a visiting doctor cannot alter or prescribe the medicine. Condition of the patient awfully deteriorated and therefore he was referred to Diamond Harbour Hospital. The patient has filed a false, fictious and frivolous case; there was no medical negligence in his part; he took utmost care of the patient. The case should be dismissed in limini with cost.
O.P. no. 5 i.e. Dr. Jafar Ali of the nursing home has filed W/V wherein it is stated that the patient was admitted to “Astha” Nursing Home on 31.05.2017 at 7.20 p.m. with severe pain and swelling of right hand thumb which had black colored blisters with pass formation, cellulitis of right hand thumb and adjacent part of right hand. His temperature was 101 degree centigrade at that time. He gave a history of some injections given over right hand thumb in Kulpi Gramin Hospital. After giving of injection he felt severe pain and swelling and tenderness at his right hand thumb. He has also given history of recurrent pain abdomen due to pancreatitis. During performing IV channels, he i.e. O.P. no. 5 found majority of veins were thrombosed and IV channel was done with difficulty. On 31.05.2017 at about 9.30 p.m., incision and drainage were done under general anesthesia. On 01.06.2017 dressing was done. On 02.06.2017, patient was discharged with good condition. On 07.06.2017, Patient came to chamber of O.P. no. 5; his thumb was found gangrenous (blackened) and needed amputation. Some routine examinations were advised, such as blood for Hb, TC, DC, ESR, Sugar(R), Urea, Creatinine, ECG and X-ray thumb. Investigation report was found normal. X-ray report revealed dead bone of phalanges. The complainant was admitted to nursing home again. Second opinion was taken from Dr. Debdas Sardar, an orthopedic. He also suggested amputation of right hand thumb. On 11.06.2017 amputation was done from first metacarpophallengear joint under general anesthesia. On 12.06.2017 patient was discharged with stable condition. Thereafter no complication whatsoever was reported to him by the patient. He gave best of service the patient needed. There was no deficiency in service on his part.
The version of the nursing home i.e. O.P. no. 6 is also same as that of O.P. no. 5.
O.P. no. 7 i.e. Dolon Chanpa Mal, a nurse of the said hospital has filed W/V wherein it is pleaded that the complainant was admitted to Kulpi Gramin Hospital on 28.05.2017 under supervision of Dr. Nihar Ranjan Mondal i.e. O.P. no. 4. At the time of admission, saline channel was made as per advice of O.P. no. 4. No saline channel was made from 30.05.2017 to 31.05.2017. O.P. no. 1 did not make any new channel on 30.05.2017 as alleged by the complainant. She cannot administer any medicine or injection without advice of the doctor. On 31.05.2017, it was her off-day. She was not liable in any way for any kind of negligence. O.P. nos. 2, 3 and 4 have not turned up in spite of service of notice upon them and therefore the case is heard ex-parte against them.
POINTS FOR CONSIDERATION
- Is the case maintainable in law?
- Are the O.P.s guilty of deficiency in service as well as medical negligence as alleged?
- Is the complainant entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Evidence on affidavit is led by the complainant, O.P. nos. 2 and 3, O.P. nos. 5, 6, 7 and 1 also. Questionnaires, replies, BNAs filed by the parties are kept in record after consideration.
DECISION WITH REASONS
Point no. 1:
It has been argued on behalf of O.P. no. 1 that the hospital authority is necessary party in this case and in absence of Kulpi Gramin Hospital, this case is not maintainable. The complainant was treated in the aforesaid hospital as indoor patient and he was treated by O.P. no. 1 and O.P. no. 4 i.e. the doctors. The allegation of medical negligence is brought by the complainant against the aforesaid treating doctors and the nurses. If he succeeds to establish allegation against the aforesaid O.P.s, he will get relief against them. It is well accepted verdict of the Supreme Court that no consumer complaint will be dismissed on the ground of non-joinder of necessary party. The forum will have to see whether allegation of deficiency in service is sustainable against the party who is on record and if it appears to be not sustainable; the case will be dismissed on merits. This being the position of law, we cannot say that the instant case is not maintainable for non-joinder of the hospital. The case is quiet maintainable in law against the O.P. doctors and nurses of the said hospital. Hence, the point is primarily answered in favour of the complainant.
Point no. 2:
An allegation of medical negligence as well as deficiency in service is brought against the treating doctors and nurses of Kulpi Gramin Hospital by the complainant. We know it very well that there are 3 ingredients of negligence. They are – 1) Duty, 2) Breach of duty and 3) Resultant damage. Let us see now how far the complainant has been able to fulfill 3 ingredients of the negligence.
It is undisputed fact that the complainant was admitted to Kulpi Gramin Hospital on 28.05.2017, having had severe abdominal pain and in the hospital he was admitted as an indoor patient under supervision of Dr. Nihar Ranjan Mondal i.e. O.P. no. 4. It also goes undisputed that another doctor i.e. Dr. Prabal Kanti Gayen (O.P. no. 1) also rendered treatment to the complainant on 29.05.2017, 30.05.2017 and also on 31.05.2017. The doctors have certainly a duty to take care of patient. Their prime duty is to restore the patient to his or her health and this duty of the doctor is to be discharged at the best of its level. Any kind of negligence on discharge of the duty is medical negligence as well as deficiency in service on the part of the treating doctors. As the complainant is admitted to the hospital, we must say and say only that the aforesaid doctor owed a bounden duty to the complainant to take care of him.
Now to see whether such duty of the aforesaid doctor has ever been violated at any stage of treatment of the complainant. The complainant was admitted to the hospital with abdominal pain. He was not admitted to the hospital with any kind of gangrenous ulcer. But he was discharged from the hospital with gangrenous ulcer on his right hand thumb. It is the version of the complainant that saline channel was made at his left hand beside the thumb on 28.05.2017 and on 30.05.2017, O.P. no. 1 came to the ward on visit and saw that left hand saline channel did not work properly. So, at his direction new channel was made on his right hand beside the thumb by O.P. no. 1. It is also the version of the complainant that a few hours after such second channel is made, his right hand got swelled with severe pain. But, none of the doctors came to see him even after the suffering of the complainant was reported to the nurses. That the complainant developed a gangrenous ulcer on his right hand thumb is also established by admission of O.P. no. 1 in his W/V. According to him, on 30.05.2017, during his visit, he saw the right hand thumb of the complainant got completely blackened. It is also his version that a necrosis developed on the right hand thumb of the complainant and therefore the patient was referred to Diamond Harbour Hospital on 31.05.2017. The complainant was admitted to the nursing home i.e. O.P. no. 6 under supervision of O.P. no. 5. O.P. no. 5 has admitted in W/V that the complainant was admitted to O.P. no. 6 nursing home on 31.05.2017 at 7.30 p.m. with severe pain and swelling on his right hand thumb which had blackened color. According to the version of O.P. no. 5, the temperature of complainant was 101 degree centigrade at that moment and he gave the history of some injections given over his right hand thumb in Kulpi Gramin Hospital. These are undisputed facts coming to the surface of record.
From the aforesaid fact it is clear that complainant fell a prey to gangrene during his admission in Kulpi Gramin Hospital. It is not the fact that the complainant was admitted to the said hospital having contacted gangrene beforehand. The aforesaid facts make it clear that the treating doctors were negligent in rendering treatment to the complainant and therefore, their negligence led to the loss of right hand thumb of the complainant. Invoking the doctrine, “Res Ipsa Loquiter”, we do say that the aforesaid facts go a long way to prove that O.P. no. 1 and 4 caused breach of their duty and therefore the complainant had to bear the brunt of such breach of duty, having contacted a gangrene.
A medical literature has been placed before the forum on behalf of O.P. no. 1. By placing such literature, it is submitted on behalf of O.P. no. 1 that the complainant was addicted to tobacco which being a risk factor of gangrene, caused the gangrene of right hand thumb of the complainant. From the medical literature garnered from the Wikipedia, it is available that gangrene is caused by a critically insufficient blood supply (e.g., peripheral vascular disease) or infection. There are so many risk factors of gangrene such as diabetes, peripheral arterial diseases, smoking, major trauma, alcoholism etc.
Risk factors are not causes of diseases. Risk factors are those factors which aggravate the disease; risk factors stand in the way of recovery of disease. But, we want to know which act of the treating doctors i.e. O.P. no. 1 and 4 caused the gangrene of the complainant. Certainly, tobacco did not cause gangrene. This gangrene has been caused, as goes the medical literature, by infection and this infection was caused at the time of preparation of saline channel by the doctors of hospital. But, O.P. no. 1 does never disclose anywhere in his 12 – page - W/V whether any IV channel was prepared on any hand of the complainant. He does not say anything about how gangrene developed in the hand of the complainant. The complainant was admitted to the hospital; he was rendered treatment within 4 walls of the hospital; he was not admitted to the hospital having contacted gangrene beforehand. Under these circumstances, the burden of proof lies upon the treating doctors i.e. O.P. nos. 1 and 4 under section 106, Evidence Act as it lies within special knowledge of the doctors and they will have to discharge the burden satisfactorily. They are bound to explain how gangrene was created on right hand thumb of the complainant. But, no explanation is forthcoming from them. They have failed to discharge their burden. Silence on their part as to causation of gangrene is a clear example of their breach of duty. They have kept these facts suppressed. Everyone knows that a guilty mind is always suspicious. To suppress their fault, O.P. no. 1 has not been able to say anything as to how the gangrene was caused or whether any IV channel was formed in the complainant or not. Regard being had to all these facts, we do say that the treating doctors i.e. O.P. no. 1 and 4 have certainly caused breach of their duty. Had they taken proper care of the complainant, the complainant would not have suffered the loss of his right hand thumb. Further, O.P. no. 1 noticed on 30.05.2017 at the right thumb of the complainant got blackened. Yet, no emergency step was taken by him to prevent gangrene. It is only on 31.05.2017, the patient was referred to Diamond Harbour Hospital. A moment’s delay in case of a gangrene is fatal to the patient. But O.P. no. 1 remained indifferent to the patient; he treated the patient perfunctorily. Delay in taking proper step in such case is clear breach of duty on the part of O.P. no. 1 and O.P. no. 4 as well.
O.P. no. 1 does not admit that any saline channel was caused to the complainant. But the truth comes out in its very nature from the heap of untruths. O.P. no. 7 i.e. Dolon Chanpa Mal was a nurse of the said hospital at the relevant time. She deposes that IV channel was created to the complainant under the supervision of Dr. Nihar Ranjan Mondal. The treatment sheets (Xerox) are placed on record by the complainant. It is seen therefrom that IVF was administered to the complainant on 28.05.2017 i.e. on the very day of his admission to the hospital. It is also seen from the said treatment sheet that many injections have also been administered to the complainant through IV channel. But, it is not mentioned on which hand, IV channel was created. Be that as it may, it stands established that O.P. no. 1 i.e. the treating doctor has adopted hide and seek policy; he has not made a clean breast of everything regarding treatment of the complainant. On the other hand, O.P. no. 4 under whose supervision the complainant was admitted to the hospital has chosen not to contest this case. It is only for the reason that he has nothing to defend himself and therefore he has stayed away from contesting this case. All these clearly establish that breach of duty was caused by the treating doctors i.e. O.P. nos. 1 and 4 and that they did not take as much care as was expected to be taken from them by the complainant.
The complainant has lost his right hand thumb. O.P. no. 5 is the doctor who amputated the right hand thumb of the complainant. He has made it clear assertively in his W/V that the right hand thumb of the complainant has been cut off. We have nothing to disbelieve the version of the O.P.s and it stands established that the complainant has lost his right hand thumb as a result of breach of duty caused by O.P. no. 1 and 4.
O.P. nos. 2, 3 and 7 are nurses of Kulpi Gramin Hospital. Nurses had acted as per direction of the treating doctors. This being so, we are of the opinion that no blame can be cast upon the nurses for loss of right hand thumb by the complainant. There is no allegation of medical negligence against O.P. nos. 5 and 6.
In view of what have been discussed above, it is found that the complaint has been able to establish medical negligence on the part of O.P. nos. 1 and 4 of Kulpi Gramin Hospital.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.P. no. 1 and decreed ex-parte against O.P. no. 4 with cost of Rs. 10,000/-. As against the other O.P.s, the case stands dismissed.
The O.P. nos. 1 and 4 who will remain jointly and severally liable to the complainant, are directed to pay a sum of Rs. 3,00,000/- to the complainant as compensation within a month of this order failing which the compensation amount will bear interest at the rate of 10% p.a. till full realization thereof. If the compensation amount is not paid by the aforesaid doctors within the aforesaid period of one month of passing of the instant award, the forum may, in addition to and not in derogation of its usual authority in relation to execution process, refer the matter to the Health Department of Government of West Bengal with direction to pay the compensation amount to the complainant from the Government exchequer and then to realize the said compensation amount from the salary of those doctors i.e. O.P. nos. 1 and 4.
Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.
I/We agree Member President
Directed and corrected by me
President
