West Bengal

South 24 Parganas

CC/557/2014

Tanmoy Majhi, S/O- Prasanta Majhi. - Complainant(s)

Versus

1. The Cheif Medical Officer of Health, South 24- Parganas. M.R. BANGUR Hospital. - Opp.Party(s)

Tapas Kumar Maity.

26 Apr 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _557_ OF ___2014__

 

DATE OF FILING : 17.11.2014                   DATE OF PASSING JUDGEMENT:  26.4.2016_

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Sharmi Basu & Subrata Sarker

                                                                             

COMPLAINANT             : Tanmoy Majhi,s/o Prasanta Majhi , Vill. Kanyanagar, P.S Bishnupur, Dist. South 24-Parganas.

 

-VERSUS  -

 

O.P/O.Ps                            :  1. The Chief Medical Officer of Health, South 24-Parganas, M.R Bangur Hospital, 241, Deshapran Sasmal Road, P.S Jadavpur, Kolkata – 33.

                                              2.     Dr. Hiranmoy Deb (Ortho), Through C.M.O.H, M.R. Bangur Hospital, 241, Deshapran Sasmal Road, P.S. Jadavpur, Kolkata – 33.

 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President          

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that he was admitted at M.R Bangur Hospital for medical treatment under Dr. Hiranmoy Deb (Ortho) due to the fracture injuries on right femur and right humours in  a road traffic accident on 27.10.2009 at bed no. 38 ward no. 8 . It is the further case of the complainant that his right humorus  was operated and nailing was done on 16.11.2009 and right femur operated and nailing was done on 28.11.2009 and he was discharged on 10.12.2009. It has further stated that complainant attended the said hospital on 10.01.2010 for neuro problem and the doctor referred to Bangur Institute of Neuroscience and the complainant was treated there as an out door patient on 25.01.2010. It has further stated that complainant failed down in his house and right femur was broken with steel plate as steel plate was drilled so weak and again admitted at Bangur Hospital on  2.3.2010 at bed no.36 ward no.8 under Dr. Hiranmoy Dey (Ortho) and he was stayed there two months six days having traction and was discharged on 8.5.2010 with advice of four months bed rest. It has claimed that due to negligence of the doctor he did not get proper treatment since the doctor neither removed the broken steel plate nor fix a new plate  and discharged the patient. It has claimed that complainant by profession a Auto Driver and depends and relied upon the doctor’s treatment and at the time of discharge Dr. Deb assured the complainant that he will be totally cured but due to negligence the complainant made a permanent physical disabled person and complainant’s right let became bended and shortage. It has also claimed that at the broken spot the bone abnormally growth and infected. And complainant feels pain and other trouble and went to M.R Bangur Hospital on 19.8.2010 and 11.9.2012 to examine him as an out door patient . There doctor examined him and commend the situation is very critical and referred to the state hospital i.e. SSKM Hospital, where he was examined and advised to remove the broken plate but comment “ Counseling done, regarding – may not be possible to remove – post O.P-infection’. Accordingly complainant is unable to bear the operation charges and he is unable to earn a single farthing ,which was caused due to gross negligence on the part of the O.p doctor, for which complainant claimed compensation to the tune of Rs.9,50,000/-  and litigation cost of Rs.50,000/- and interest as per Law. Hence, this case.

The O.P-2 Dr. Hiranmoy Deb (Ortho) is contesting the case by filing written version. It is the contention of the O.P that this complaint case is not maintainable in the Law in view of the decision reported in 2009 (1) CPJ 32 (SC) ,wherein Hon’ble Supreme Court has specifically stated that before admitting a complaint the complaint ought to have been referred for opinion of medical experts of specialized field before further proceeding in the matter. Secondly, this medical issues involved in this case is very complicated in nature. So, without any evidence of medical experts of specialized filed it would not be possible for the Ld. District Forum to decide the matter and further voluminous evidence is to record. It is also stated that no cause of action disclosed. So, the case should be dismissed. It has also stated that the issue involved in this case being complicated ,particularly when the allegation involved are the medical negligence and very highly technical in nature, this Ld. District Forum will be pleased not to exercise jurisdiction in the matter and direct the complainant to approach civil court of the appropriate Forum for the appropriate reliefs.

            The positive case of the O.P-2 is that complainant met a major road accident on 27.10.2009 and on clinical examination he was of the opinion that complainant was suffering from Fracture Shaft Humerus ® & Fracture Shaft Femur ® and as such he was advised open rediction and internal fixation (ORIF) surgery . As per standard protocol the standard tests like X-ray of Pelvis with both hips-AP View,  hip® with Femur-AP & LAT view,  Knee ( R ) with Femur- AP & LAT View,  Shoulder ( R ) with Humerus – AP View, Elbow ( R ) with Humerus – AP LAT View, NCV  study of right upper limb MRI of the Pelvis and Thigh and Shoulder with Arm were advised along with routine tests like TC, DC, ESR, Cheat X-Ray ECG . Thereafter the patient was checked by anesthetist Dr., S. Kundu , who found the patient fit for surgery and accordingly the surgery was planned on  27.10.2009 with general anesthesia. After operation patient was advised medicines  like Inj. Ceftriaxone, Inj-Amikacine, Inj.Diclofenac and Inj-Ranitidin and patient had shown satisfactory improvement. Thereafter second surgery was planed on 16.11.2009.  Accordingly anesthetic check up was done and patient was confirmed fit for second surgery. Accordingly right femur was operated on 16.11.2009 under regional anesthesia and the surgery was uneventful. The patient was thereafter shifted to his bed  . The patient was also advised medicine like injection ceftriaxone, diclofenac and ranitidine. The patient had shown satisfactory improvement. Thereafter it was checked up through X-ray after two days of operation and thereafter complainant was discharged from the hospital with advice of medicine like injections -ceftriaxone, diclofenac, and ranitidine and further advice of strict non-ambulatory rest at the time of discharge for proper fixation. The X-ray plates and discharge summary is in the custody of the complainant which be directed for production before the Ld. Forum.

Now the O.P-2 has stated that the complainant again re-admitted following fall on 8.3.2010 with broken right femur with broken implant  ,that means approximately three months after his operation on his right femur when the operated bone is soft enough and necessary precaution is advised to avoid trauma.  But the patient did not disclose the nature  of his fall and it is understood that the patient accidentally fall while in ambulation . So, the same is caused due to his own negligence. However, patient was admitted with broken right femur with broken implant in situ from 8.3.2010 to 8.5.2010  and he was treated reasonably by conservative manner which included traction, rest and medication like calcium with vitamin D3 , analgesic SOS as refracture after just three months of operation with reasonable soft bone at the fracture area has a good chance of reunion by conservative non-operative treatment. It has claimed that at the time of discharge on 8.5.2014 again X-ray were done which reflected proper union and by necessary test like trying to lift the said right leg in front of patient and party done and they were reasonably satisfied and took patent discharge of the patient. The entire treatment and the condition of the patient are codified in the bed head ticket and the discharge summary. So, the allegation of negligence is absolutely afterthought as the patient feels physical pain again and was referred to SSKM Hospital for further management. Moreover, there is no document filed that Doctor of MR Bangur Hospital or SSKM Hospital had confirmed that there was negligence on the part of the O.P-2. So, the allegation leveled against the doctor is denied and called for strict proof thereof. The entire prayer of para 9 to 15 is hereby denied.

It has also claimed that infection is a known complication of surgery. It was detected after a long approximately after two years after the surgery. It may be mentioned here that infection occurred due to compromise state of the complainant or his failure to take the antibiotics which was advised by the O.P-2. So, the complainant is called for production of the bills of the antibiotics which was advised to show that the complainant was regularly taking the antibiotics or not. It has strongly claimed that complainant’s inability to work was due to major road accident as well as fall in his residence over which the O.P-2 had no control whatsoever. O.P-2 prays for dismissal of the case.

The O.P-1 is not contesting the case. So, the case is running against the O.P-1 in exparte.

Points for decision in this case are:

1. Whether the broken plate was required to be removed ,if not, the said plate can create infection or not.
2. Whether there is a good chance of re-union by conservative non-operative treatment in case of re-union of broken plate or not.
3. Whether there is any deficiency in service on the part of the O.Ps or not.

Decision with reasons

            At the very outset we turn our eyes to the definition of negligence as unfolded in  Jacob Mathew Case. According to the Jacob Mathew case “Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by  Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “Duty” :”Breach” and “resulting damage”.

            Again negligence in the contest of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the art of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed”.

            With that observation, we find that here in the instant case O.P-2 doctor has chosen a treatment which is reasonable by conservative manner which included traction, rest and medication like calcium Vitamin D3, analgesic SOS as refracture after just three months of operation with reasonable soft bone at the fracture area has a good chance of reunion by conservative non-operative treatment.

            Here in the instant case, admittedly the complainant sustained road accident on 27.10.2009 and suffering from fracture injuries on right femur and right humours and as such he was advised Open Rediction and Internal Fixation  surgery . It is also admitted that on 27.10.2009 right humerus was operated. Thereafter on 16.11.2009 right femur was operated by the O.P Doctor and he was discharged after advice of some medicine like tablets and capsule amoxicillin and clavulinic acid 625 mg, analgesic SOS, calcium with vitamin D3 and others  and further advice was of strict non-ambulatory rest at the time of discharge for proper fixation. But on 8.3.2010 the complainant once again readmitted with history of broken right femur with broken implant that means the same was broken after near about 4 months of the operation held on 16.11.2009 and accordingly treating doctor find that there is a good chance of re-union by conservative non-operative treatment which was included traction,rest and medication with calcium , Vitamin D3 with analgesic etc.

            Now the question is whether that conservative non-operative treatment by the treating doctor O.P-2 will be considered as an error of judgment or an accident and if that be so, then definitely the medical profession cannot be held negligence.

            But the question is elsewhere i.e. can it be believe that broken plate can be re-joined by conservative and non-operative treatment, particularly when even after lapse of at about 4 years the complainant when filling pain examined by Doctor of SSKM Hospital and he was treated as a OPD patient and from the prescription issued by the SSKM Hospital we find that first advice was given by the Doctor of Orthopedic Department of SSKM Hospital to remove of implant from thigh but after counseling has noted “May not be possible to remove post –OP infection”. It is also seen in the said prescription that tenderness over the middle thigh at the site of broken implant was stated by the complainant to the doctor. So, it is a normal thing that a medical practitioner should not allow foreign body unnecessarily ,herein broken implant. It should be noted here that this part of act of the treating doctor is not a better alternative course of method of treatment etc. But it is very simple thing that broken implant should be removed ,otherwise, edge of the broken implant would definitely disturb the other tissue as and when the edge portion was moved  and touched the tissues ,and thereby there is every possibility of infection,that is why, doctor of Orthopedic Department, SSKM Hospital after counseling the episode from the patient observed that it may not be possible to remove for post operative infection but their view is to remove the implant from right thigh.

            In this point of view we have to decide  whether the doctor will be held to be negligent or not.

            We are aware that the Hon’ble Supreme Court has already held while disposing of the judgment of Dr. Balaram Prasad, Vs. Dr. Kunal Saha & Ors. reported in 2013(4) T.A.C 752 (S.C) that the  numbers of medical negligence cases against the doctors of Hospitals and Nursing Home are increasing day by day. In the case of Paschim Banga Khet Mazdoor Samity V. State of West Bengal , (1996) 4 SCC 37, this Court has already pronounced that right to health of a citizen is a fundamental right guaranteed under the Article 21 of the Constitution of India . It was held in that case that all the Government Hospitals, Nursing Homes and Poly-clinics are label to provide treatment to the best of their capacity to all the patients. It has further held that  doctors, hospitals, nursing homes and the other connected establishments are to be dealt with strictly if they are found to be negligent with the patients who come to them pawning all their money with the hope to live a better life with dignity. The patient irrespective of their social, cultural and economic background are entitled to be treated with dignity which not only forms their fundamental right but also their human right.  The Hon’ble Court also observed that we hope and believe that the institutions and individuals providing medical services to the public at large educate and update themselves about any new medical discipline and rare diseases so as to avoid tragedies such as the instant case where a valuable life could have been saved with a little more awareness and wisdom from the part of the doctors , O.P-2.

            But we find that O.P-2 the treating doctor without removing the broken implant from that point of time i.e. soon after it was broken, instead of taking alternative treatment he ought to have removed the plate with a view that there is a chance of infection in near future if the broken implant be kept as it is according to the view of SSKM Hospital. It is true that conservative   and non-operative treatment having good chance of re-union which was adopted by the treating doctor but in our considerable view in a case of broken implant the said procedure is undoubtedly held by the doctor is negligent, where a valuable life of the young complainant who is coming from a very common family and used to lead his life being a auto driver as well as there is no chance of reunion of the broken plate by the procedure adopted by the treating doctor. So, on a moment scrutiny in a naked eye it an be said ,particularly when broken plate was lying inside , the act of the O.P-2 doctor is a negligent one. So, if the vital part of the body of a auto driver is disabled then how the complainant, a auto driver, will lead his life particularly when it is the case of the complainant that right leg becomes bended and shortage and due to broken plate there is abnormal growth of bone and infected. This infection definitely caused due to broken foreign body but knowing the same what prompted the treating doctor, O.P-2, to take chance of reunion by conservative and non-operative treatment ,particularly when after lapse of four years the doctor of SSKM Hospital of Orthopedic Department at the outset planned to remove the broken plate but sid plan was not successful due to long passage of time and infection, that is negligence of a t5reating doctor,O.P-2. It is true that in the Jacob Mathew Case it has been observed that doctors cannot be held liable for negligence merely because a better alternative method of treatment is available or simply because a more skilled doctor would not have chosen to follow or refer to that practice or procedure which he followed.

            But, here the circumstances is quite different. Here question is of removal of broken foreign body which was implanted by the treating doctor  at about four months back was not removed. But when it was broken due to fallen down accidentally, without removing the same there is least possibility of reunion of the said fracture because it is not a case of alone fracture but broken plate is also there. So, until and unless the broken plate is being removed how the broken fracture will be reunion in a method of conservative non-operative treatment, particularly when there is every chance of infection due to edge of the broken plate with the tissue. All these things, the treating doctor did not think over for a moment, that is negligence and that negligence has taken the bread and butter of the poor author driver, the complainant, that is why, we find that in this case expert opinion is not at all required when it can be decided that alternative method of treatment which has been adopted by the doctor, O.P-2, for reunion of the fracture is not at all possible, particularly when the broken plate cannot be reunion with the conservative and non-operative treatment along with traction.  Moreover, calcium with Vitamin D3 and medication is not possible to reunion the broken plate. So, all these things were not considered by the treating doctor,O.P-2. The State Jacket Formula has been adopted by the doctor,O.P-2, due to his carelessness and never think over the matter that broken plate is remained inside, which is carelessness and amounts to negligence.

            In the written version the O.p-2, doctor, in para 4(x) although wanted to say that he treated reasonably by conservative manner which included traction, rest and medication like calcium with vitamin D3 as refracture after just three months of operation with reasonably soft bone at the fracture has a good chance of reunion by conservative non-operative treatment. But there is no whisper why the broken plate was not removed and it has not stated , whether the broken plate can be reunion with that medication and non-operative treatment. It cannot be said that plate was not broken at the point of time . It is not out of record that although treating doctor ,O.P-2, wanted to state in para 9 of his written version that infection has occurred due to compromise state of the complainant or his failure to take antibiotic which was advised by the O.P-2,and call for production of the bills of purchasing the antibiotic, which was advised, to show that complainant was regularly taking the antibiotic, this plea to get shelter from the occurrence of negligence and this part of statement by the O.P-2 doctor, clearly suggest that he was aware regarding infection, that is why, antibiotic was suggested. But even after taking the antibiotic the broken plates which were not removed, definitely caused infection. So, any prudent person can hold that broken plate ought to have removed ,otherwise, there is possibility of infection that things were not considered by the treating doctor, O.P-2. This is a glaring example of negligence.

            Accordingly we find that due to non-removal of broken plate infection was created ,that is why Doctor of SSKM Hospital  restrained themselves after counseling the patient not to remove the broken plate inspite of planning to remove the same. It is needless to say that O.P-doctor failed to provide any document that conservative and non-operative treatment reunion the broken plate. So, all these acts of O.p-doctor  snatched the bread and butter of a poor Auto Driver ,for which, we hold that the O.P-2 failed to discharge his services towards the complainant which amounts to deficiency in service . But we find nothing deficiency against the O.P-1 since the infection and other problems was not created due to the act of the O.P-1.

            Hence,

                                                                                    Ordered

That the application under section  12 of the C.P Act, 1986 , is allowed on contest against O.P-2 and dismissed against O.P-1.

The O.P-2, Doctor, is directed to pay compensation to the tune of Rs.9 lacs within 45 days from the date of this order failing which interest will carry @10% p.a from the date of this order till its realization.

Apart from that O.P-2 is also directed to pay Rs.20,000/- towards litigation cost to the complainant within that stipulated period  and if the O.P-2 failed to pay the said amounts within the stipulated period then further interest will carry @9% p.a on the whole amount till its realization.

Let a plain copy of this order be served upon the O.Ps and a copy be handed over to the complainant free of cost.

 

Member                                                           Member                                                           President

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

 

            Ordered

That the application under section  12 of the C.P Act, 1986 , is allowed on contest against O.P-2 and dismissed against O.P-1.

The O.P-2, Doctor, is directed to pay compensation to the tune of Rs.9 lacs within 45 days from the date of this order failing which interest will carry @10% p.a from the date of this order till its realization.

Apart from that O.P-2 is also directed to pay Rs.20,000/- towards litigation cost to the complainant within that stipulated period  and if the O.P-2 failed to pay the said amounts within the stipulated period then further interest will carry @9% p.a on the whole amount till its realization.

Let a plain copy of this order be served upon the O.Ps and a copy be handed over to the complainant free of cost.

 

Member                                                           Member                                                           President