Adv. For the Complainant’s: - A. Danta and Other

Adv. For OP No. 1 & 2           :-   Radha Kanta Mahakur and Others

Adv. For OP No. 3                  :- S. Mishra

Date  of filing of the Case     :- 30.09.2021

Date of Order                          :-    28.03.2024

JUDGMENT

The fact of the case in nut shell-

1. The complainant had implanted a distal radius 2.7 M.M.  titanium plate at her left wrist due to fracture at Gupta Nursing Home, Burla , Sambalpur through Dr. Gautam Satpathy  M.B.B.S  M.S( Orthopedic  Surgeon) who is OP no.3in this case One Patel Nursing  Home (Hospital) at Kibra, Burla, Sambalpur who is OP no.1 in this case A Nursing Home providing Medical service through its doctors and Dr. Pradeep Kumar Merli MBBS Ms( Orthopedic Surgeon) who is Op no.2 conducting the Orthopedicsurgery. As because the complainant unable to contact OP no.3 wants to remove the implant distal radius 2.7 M.M Titanium plate and consult with Op no.1 . The complainant hand over the earlier Medical report Discharge slips X- ray and other related documents. Then OP.no.1 refer the case to Op no.2 to remove the plate although the complainant being insured her through vipul med crop TPA Ltd.  had already taken approval from the health insurer for the operation fixed on 5.10.2019 OP no.1 denied to accept the cashless transaction and fixed the  package of surgery amounts to Rs.28,000/-The complainant agreed on the proposal and deposited the amount and done all the requisite per  the advice of the OP no.1 and 2. The complainant was admitted on dt 05/10/2019 vide registration no. 456/2019 , Thereafter atabout 3 P.M anesthesia was applied to the complainant and the complainant was completely senseless OP no.2 performed the surgery atabout 5 P.M evening the relative with her husband informed that due to non availability of screw driver of 2.7 M.M. the OP no.2 able to opened and removed one screw with the help of 3.5 M.M screw driver and left another screw unturned and at that stage running one to another nursing home for the exactscrewdriverbut failed, left the complainant for 2 hours on the operation table lastly stitch the surgery. The Ops even after unsuccessful surgery had neither taken care of the complainant no medicine was prescribed to consume out of which the complainant had to suffered unbearable pain throughout, andafter that lost the sensation in two of her finger of the left hand till date and adviced to met the OP no.3.

Fortunately after gathering information the complainant on 25 December 2019 met Op no.3 at Odisha Orthopedic hospital Pvt limited, Cuttack, and consulted at the advice of OP no.3 again undergone for surgery to remove the plate but due to the use of 3.7 M.M. screw driver the head of the screw rounded off due to the earlier attempt made by OP no.2 . Op no.3 further opined that while stitching made in the previous surgery OP. no.2had tied the main vain of the wrist with the stitch which resulted the loss of sensation of two left hand fingers measures has been taken by Op no.3 which was fruitless to remove the plate . due to the above negligent and malafide actsof Op no.1 and Op no.2 the complainant suffered physically and financially, hence this case.

2. To substantiate her case the complainant relied on the following documents.

1. The Photocopy of Discharge slip X-ray of Gupta Nursing Home , Burla ( 3-nos)
2. The Photocopy of payment receipts showing the payments made to OP no.1 registration details and Photograph of complainant at Op no.1 Nursing Home ( 5- nos)
3. The Photocopy of Discharge slip test report and payments receipts of orthopedic  Hospital , Cuttack (6-nos)
4. The Photocopy of regular treatment at different doctors X-ray and Medical certificate for absence of duty (3-nos)
5. The Photocopy of legal notice sent to both the Ops along with receipts of speed post.

3. Having gone through the complaint it’s accompanied documents and on hearing the complaint prima facie it seemed to be a genuine case hence admitted and notice to the Ops were served. Sufficient opportunity had been given to the Ops to filed their W.S. within the statutory   period but the Ops could not filed W.S. in time as such the Op 1 & 2 set ex-parte on dt 26.08.2022 and Op3 on dt.19.09.2022. It is presumed that all the allegation made by the complainant is admitted by the Ops made against them. They have lapse the opportunity to prove their credential through regular hearing.
4. No doubt the Ops were set ex-parte still when we are going to the merit of the case then also it is a straightcut of Medical negligence. Medical negligence is the breach of a duty of care by an act of omission or commission by a Medical professional of ordinary prudence. Actionable Medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient to whom he owes a duty of care which has resulted in injury to such person. A mistake would tantamount to negligence cannot be pardoned.

1. A state of mind in which it is opposed to intention.
2. Careless conduct and
3. The breach of duty to take care that a is imposed by either common or statute law.

In Nizam Institute of Medical sciencevrs. Prasanth S Dhanka & Others 2009(3) CRR 81 (S.C.) observed that,

“ 32 we are also cognizant of the fact that in a case involving Medical negligence once the initial burden has been discharged by thecomplainant by making out a case of negligence on the part of the Hospital or the doctor concerns the onus then shifts on to the hospital and to the attending doctors and it is for the hospital to satisfy the court that, there was no lack of care or diligence”

Here the case in hand from the earlier discharge slip of Gupta Nursing home clearly shows that the implanted Titanium plate screw is 2.7 M.M in size. Before conducting the surgery the OP no.1 as well as the OP no.2 be cautious to arrange the 2.7 M.M. screw driver to remove the plate using of 3.5 M.M screw driver resulted to left one screw with rounded head which ultimately again not removed by Op no.3 after second surgery. It is also another carelessness that the complainant was out of sense and on the operation table Op no.2 calousnessly take time to arrange the screw driver from one hospital to another but failed and operate in a very casual manner playing with the life of the complainant, which amounts to professional misconduct. More over while stitching the surgery mistakenly tied the main vain of the wrist with the stitch caused the loss of sensation of two left hand fingers permanently is nothing but medical negligence.

     If the hospitals fails to discharge their duties through their doctors being employed on Job basis or contract basis it is the hospital which has to Justify the acts of Omission or commission on behalf of their doctors Savita  Garg vrs. National heart institute 2004 8 scc 56 after taking the requisite package amount for surgery the Op no.1 did not take proper post operation care. Where the treatment was given in a negligent manner and the level of treatment is very poor amount to actionable medical negligence and deficiency in service.

 From the above facts and analysis we came to conclusion that the complaint is allowed with following directions.

ORDER

OP No.1 is directed to pay a sum of Rs.4,00,000/- towards permanent disabled of fingers and including the medical expenses OP No.2 is directed to pay a sum of Rs.1, 00,000/- for Medical negligence @ 7% interest P.A. within one month from the date of order.

            Further the OP no.1 is directed to pay a sum of Rs.50,000/- towards mental agony and Rs.5,000/- towards Litigation expenses within one month from the date of order failing which any outstanding payments shall attract interest @ 12% P.A. from the date of filing of the case till  realization .

No award as to cost.

   PRONOUNCED IN THE OPEN COMMISSION TODAY I.E DATED  28^th   DAY OF  March’2024