IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 64/S/2014.                           DATED : 27.11.2017.   

BEFORE  PRESIDENT              : SMT. KRISHNA PODDAR,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SRI TAPAN KUMAR BARMAN.

COMPLAINANT             : DR. (MRS) NAVNEET KAUR,

  W/O Sri Prasanta Kumar Maji,

  Parineeta Apartments,

  7, Sidhu Kanu Sarani, Deshbandhupara,

  P.O.- Siliguri, Dist.- Darjeeling.     

O.Ps.              1.                       :DR. A. K. SASMAL, MD (ORTHO),

  Anandaloke Hospital & Neuroscience Centre, 

  (A Unit of Anandaloke Medical Centre Pvt. Ltd.),

  2^nd Mile, Sevoke Road, Siliguri – 734 001.

  Also addressed at :

  REMEDICO,

  Hospital More, Siliguri,

  P.O. & P.S.- Siliguri, Dist.- Darjeeling. 

                                    2.                     : ANANDALOKE HOSPITAL & NEUROSCIENCE

  CENTRE,

  (A Unit of Anandaloke Medical Centre Pvt. Ltd.),

  2^nd Mile, Sevoke Road, Siliguri – 734 001.

            Prof. OP         3.                     : DR. ABHISHEK MANU,

  Neotia Getwel Healthcare Centre,

  Uttorayon, Behind City Centre,  

  P.O. & P.S.- Matigara, Dist.- Darjeeling. 

FOR THE COMPLAINANT         : Sri Dilip Kumar Roy, Advocate.

J U D G E M E N T

Smt. Krishna Poddar, Ld. President.

Brief facts of the complaint case are that on 16.05.2011 the complainant was admitted at OP No.2 Anandaloke Hospital and Neuro Science Centre under OP No.1 Dr. A. K. Sasmal, MS (Ortho.) with trauma in her right lower leg associated with pain and restricted movement.  On 18.05.2011 interlocking of fracture of her right femur was done under equidral anaesthesia by OP No.1 and an intra-medulary implant was placed in her right femur along with three screws.  On 29.05.2011 after her stitches were removed, the complainant

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discharged from OP No.2 by the OP No.1 and the OP Nos.1 & 2 for her entire period of admission from 18.05.11 to 29.05.2011 and the operation on 18.05.2011 charged a sum of Rs.69,947/- from the complainant.  Since her discharge the complainant remained under medication of OP No.1 and carried out her daily activities as per instructions and advice of OP No.1.  After two years since her discharge the OP No.1 advised the complainant for removal of implant placed in her right femur.  On 06.06.2013 complainant was again admitted at OP No.2 under OP No.1 and on that date the OP No.1 removed the interlocking nail placed in the right femur of the complainant and the wound was stitched and she was discharged on 08.06.2013 and for her entire period of admission from 06.06.2013 to 08.06.2013 the OP Nos.1 & 2 charged a sum of Rs.22,850/- from the complainant.  After ten days since her discharge on 08.06.2013 and the stitches removed by the OP No.1, the wound did not heal and pyogenic material kept oozing from the wound daily and even after visiting by the complainant to the OP No.1 regularly and consequent dressing at OP No.2 by the OP No.1 the wound of the complainant did not heal.  The OP No.1 diagnosed the said problem of the complainant to be ‘stitch abscess’ and admitted her at OP No.2 for surgical management on 14.08.2013 and discharged her on 15.08.2013 and charged an amount of Rs.5,050/- from the complainant for the same but of no result as the oozing of the pyogenic material persisted over right heap of the complainant from the surgical implant removal site, done for fracture shaft of her right femur.  At this stage complainant visited the OP No.3 Dr. Abhishek Manu of Neotia Getwel Healthcare Centre and on 16.10.2013 the OP No.3 admitted her at Neotia Getwel Healthcare Centre, Uttorayon, P.O. & P.S.- Matigara, Dist.- Darjeeling and on evaluation and investigations the complainant was found to have discharging sinus over her right heap at the surgical implant removal site.  On 17.10.2013 the complainant underwent sinus excision operation under OP No.3 at Neotia Getwel Healthcare Centre and the said sinus tract was excised and in course of the said operation the OP No.3 found a big gauze piece present deep into the wound at the said surgical implant removal site of the complainant and the same was removed and she was discharged on 20.10.2013. 

The pyogenic material continuously oozed from the wound over right heap of the complainant from the surgical implant removal site due to presence of the big gauze which was left inside her right femur in the course of removal of the surgical implant from her right femur by the OP No.1 at OP No.2 out of sheer

Contd.....P/3

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negligence of the OP No.1.  It is pertinent to mention that OP No.1 never carried out the necessary post implant removal treatment of the complainant and he was absolutely negligent and indifferent to the seriousness of the post implant removal problems faced by the complainant. 

Following such treatment of the complainant under the OP No.3 from 16.10.13 to 20.10.2013 and thereafter the complainant gradually started to feel better and experienced recovery from her post implant removal problems and gradually the complainant started to feel much and much better and relieved and at present the complainant enjoys a healthy daily life.  The entire treatment of the complainant under OP No.3 at Neotia Getwel Healthcare Centre shows and sufficiently proves that the OP No.1 was negligent in carrying out removal of the implant placed in her right femur causing, dribbling of pause/pyogenic material from the sinus tract over her right heap at the surgical implant removal site. 

It is further submitted that OP No.1 never subjected the complainant to meticulous evaluation to know the cause of such continuous dribbling of pause/pyogenic material from the wound over her right heap at the surgical implant removal site and remained absolutely silent and indifferent to the seriousness of the post implant removal problem faced by the complainant.  The complainant is victim of medical negligence on the part of OP No.1 and OP No.2 both during her post implant removal treatment for which the complainant suffered intense trauma and mental agony, and suffering and if she did not decide to carry out her post implant removal treatment under OP No.3 the presence of the big gauze piece deep into the wound at the said surgical implant removal site of the complainant would never be brought to look and same could have lead to her fatal consequences and the actions and conduct of the OP No.1 in the background of the facts and circumstances of the present case reveals that OP No.1 stood absolutely indifferent to the fatal consequences which could have resulted in the complainant out of her post implant removal problems.  The removal of implant in the right femur of the complainant and subsequent operation of the complainant by the OP No.1 and OP No.2 incurred an expense of Rs.27,900/- of the complainant and the complainant is entitled to get the said amount from the OP Nos.1 & 2 for the above stated medical negligence.  The entire post implant removal treatment of the complainant under OP No.3 incurred an expense of Rs.25,083/- of the complainant and OP No.1 & 2 are liable to compensate the same.  The complainant is further entitled to get a sum

Contd.....P/4

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of Rs.15,00,000/- for mental agony and suffering caused to her on account of serious negligence on the part of the OP Nos.1 & 2 to render medical service to her.  The complainant is further entitled to get a sum of Rs.10,000/- as the cost of the legal proceedings.  Hence, this case.

OP Nos.1 & 2 entered appearance and contested the case by filing two separate written versions wherein the material averments made in the complaint have been denied and it has been contended inter-alia that the instant case is not maintainable.  It has been stated by the OP No.1 that the complainant was admitted for implant removal and she was underwent surgery and the post operative period was uneventful i.e., no complications arose as result of said surgery, but the patient developed discharge at the operative site and standard medical practice was followed, dressing was dine and required antibiotics were provided.  It has been further stated by the OP No.1 that subsequently the patient was diagnosed as having stitch abscess and incision and drainage was done on 14^th August, 2013 and she was discharged on 15^th August, 2013 and standard medical treatment was followed.  It has been further contended by the OP No.1 that the patient alleged that pyogenic material was oozing from the surgical implant removal site but very surprisingly she did not come for follow up though she was advised during discharge from OP No.2 to attend Ortho OPD on 16.08.2013 for dressing but she did not bother to come and had she come an USG/MRI could have been done for further evaluation of the patient, the complainant is thus guilty of neglecting of complying with the instructions of the treating doctor.  It has been further stated by the OP No.1 that there has been no negligence on his part in treating the complainant and he had discharged his duty diligently following the standard protocol of treatment and the present complaint is an outcome of ignorance of medical science and has been filed with an ulterior motive for illegal gain and as such liable to be dismissed.

The OP No.2 has filed a separate written version stating that there has been no negligence or deficiency in service on the part of OP No.2 in providing any facility or service to the complainant and as such complainant is not entitled to get any relief against OP No.2. 

To prove the case, the complainant has filed the following documents:-

1.       Discharge summary of Anandalok Hospital & Neuroscience Centre date of admission 16.05.2011.

2.       Bill dated 29.05.2011.

3.       Discharge summary of Anandalok Hospital & Neuroscience Centre date of admission 06.06.2013.

Contd.....P/5

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4.       Bill dated 08.06.2013.

5.       Discharge summary of Anandalok Hospital & Neuroscience Centre date of admission 14.08.2013.

6.       Bill dated 15.08.2013.

7.       Discharge summary of Neotia Getwel date of admission 16.10.2013.

8.       Photocopy of the reply of OP No.1 dated 5^th August, 2013, to the letter of the complainant dated 17.07.2013.

          Complainant has filed examination-in-chief.

Complainant has filed written notes of argument.

          OP Nos. 1 & 2 have filed examination-in-chief.

OP Nos.1 & 2 have file Written Notes of Argument.

Points for determination

1.       Is there any deficiency in service on the part of the OPs ?

2.       Is the complainant entitled to get any relief as prayed for ?

Decision with reason

          Both issues are taken up together for the brevity and convenience of discussion.

In this case it is not disputed that on 16.05.2011 complainant was admitted at OP No.2 Anandaloke Hospital & Neuroscience Centre under OP No.1 Dr. A. K. Sasmal, MS (Ortho) with trauma in her right lower leg associated with pain and restricted movement and on 18.05.2011 interlocking of fracture of her right femur was done by OP No1 and an intra-medullary implant was placed in her right femur and on 29.05.2011 after her stitches were removed the complainant was discharged.  It is also not disputed that since her discharge the complainant remained under medication of OP No2 and carried out her daily activities as per instruction of OP No.1.  It is also admitted position that after two years since her discharge the OP No.1 advised the complainant for removal of implant placed in her right femur and accordingly on 06.06.2013 complainant was again admitted at OP No.2 under OP No.1 and on that date OP N.1 carried out surgery and removed the interlocking nail placed in the right femur of the complainant and wound was stitched and the complainant was discharged on 08.06.2013.  It is also not disputed that after ten days since her discharge on 08.06.2013 and the stitches removed by the OP No.1 the wound of the complainant did not heal and pyogenic material continuously oozing from the

Contd.....P/6

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wound over right heap of the complainant from the surgical implant removal site and even after visiting by the complainant to the OP No.1 regularly and consequent dressing at OP No.2 by OPO No.1 the wound of the complainant did not heal.

It has been stated by the complainant that OP No.1 diagnosed the said problem of the complainant to be stitch abscess and admitted her at OP No.2 for surgical management on 14.08.2013 and discharged her on 15.08.2013. 

OP No.1 also admitted in his written version as well as in evidence that on 06.06.2013 complainant underwent surgery by OP No.1 and the patient developed discharge at the operative site after about ten days of her discharge from the OP No.2 and Standard Medical Practice was followed, dressing was done and required antibiotics were provided to the patient.  Thereafter, the patient was diagnosed as having stitch abscess and incision and drainage was done on 14.08.2013 and she was discharged on 15.08.2013. 

This is the case of the complainant that since 06.06.2013 i.e., surgery done by OP No.1 for implant removal and after ten days her stitches were removed by OP No.1 at OP No.2 the wound of the complainant did not heal and pyogenic material continuously oozing from the wound over right heap from the surgical implant removal site although she was visiting regularly and consequent dressing was done regularly by the OP No.1 at OP No.2.  OP No.1 diagnosed the said problem of the complainant to be ‘stitch abscess’ and admitted her at OP No.2 for surgical management on 14.08.2013 and discharged her on 15.08.2013 but of no result as the oozing of the pyogenic material persisted over right heap of the complainant from the surgical implant removal site.  At this stage the complainant decided to approach to a different doctor and accordingly she visited the OP No.3 Dr. Abhishek Manu of Neotia Getwel Healthcare Centre and on 16.10.2013 OP No.3 admitted her at Neotia Getwel Healthcare Centre, Uttorayon, P.S. Matigara, Dist.- Darjeeling and on evaluation and investigation the complainant was found to have discharging sinus over her right heap at the surgical implant removal site and on 17.10.2013 she underwent sinus excision operation under OP No.3 at Neotia Getwel Healthcare Centre and in course of said operation OP No.3 found a big gauze piece present deep into the wound at the said surgical implant removal site of the complainant and the said gauze was removed and she was discharged on 20.10.2013 and thereafter the complainant gradually started to feel better and experienced recovery from her post implant removal implant and at present she enjoys a healthy daily life. 

Contd.....P/7

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It has been alleged by the complainant that pyogenic material continuously oozed from the wound over right heap of the complainant from the surgical implant removal site due to presence of the said big gauze which was left inside her right femur in course of surgery done for implant removal from her right femur by the OP No.1 on 06.06.2013.  The OP No.1 never carried out necessary post implant removal treatment of the complainant and he was absolutely negligent and indifferent to the seriousness of the post implant removal problems faced by the complainant. 

In order to substantiate her case the complainant has submitted examination-in-chief by way of affidavit together with supported documents.  It transpires from the said documents that complainant took admission at OP No.2 under OP No.1 on three (3) occasions for her surgery and medical treatment under OP No.1 and for such admission and treatment OP No.1 & 2 charged a sum of Rs.69,947/-, Rs.22,850/- and Rs.5,050/- respectively from the complainant for her surgery and treatment etc.  The OP No.1 & 2 did not dispute the aforesaid facts regarding admission and treatment of the complainant and payment of aforesaid amount by the complainant. 

In this case the complainant has submitted the discharge summary of Neotia Getwel Healthcare Centre wherefrom we find the complainant took admission at Neotia Getwel Health Care Centre under OP No.3 on 16.10.2013 and she was discharged on 20.10.2013.  On perusal of the said discharge summary we find the history of present illness was as follows “Dr. Navneet Kaur a 44 years old female presented with history of pause dribbling from sinus tract over right heap for four months from surgical implant removal site done for fracture shaft of right femur”.  Course of treatment in hospital shows that on evaluation and investigations, she was found to have discharging sinus (right heap-post implant removal).  Again we find from operative note, that a big gauze piece present deep into the wound stained with methyleneblue.  Gauge piece removed.

OP No.1 denied that any gauze was kept by him at the implant removal site but the discharge summary of Neotia Getwel Health Care Centre clearly shows that during operation by the OP No.3 a big gauze piece was found present deep into the wound of the complainant stained with methyleneblue.  OP No.1 failed to establish by sufficient cogent evidence how the said gauze piece was found inside the wound of the complainant.  There is no hesitation to hold that the said gauze piece was left inside the wound by OP No.1 on 06.06.2013 at the

Contd.....P/8

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time of surgery/removal of implant placed in the right femur of the complainant.

Soon after operation and removal of implant and after ten days of removal of stitch the complainant began to suffer and her would did not heal and pyogenic material was continuously oozing from the wound over right heap of the complainant from the surgical implant removal site and OP No.1 diagnosed the said problem of the complainant to be “stitch abscess” and admitted her at OP No.2 for surgical management on 14.08.2013 and discharged her on 15.08.2013, but neither the wound of the complainant healed nor the oozing of pyogenic material stopped rather it persisted over her right heap from the surgical implant removal site till the 4^th operation was done by the OP No.3 at Newtia Getwel Healthcare Centre.  It is fact that complainant suffered for a continuous period of four months and her wound did not heal due to presence of a piece of big gauze left by the OP No.1 inside the wound and as a result pyogenic material continuously oozed and accumulated over the right heap from the surgical site.  If the complainant did not attend OP No.3 and if the OP No.3 not carry out her post implant removal treatment, the presence of the big gauze piece deep into the wound at the said surgical implant removal site of the complainant would never be brought to the look and same could have lead to the complainant fatal consequences.

The OP No.1 in his written version as well as in evidence intended to blame the complainant as she did not come for follow up treatment after 15.08.2013 and it has been stated by OP No.1 that had she come an USG and/or MRI could have been done for further evaluation of the patient but such statement of OP No.1 cannot be accepted when it appears that after surgery removal of implant on 06.06.2013 till 14.08.2013 the complainant was regularly visited to the OP No.1 and consequent dressing by OP No.1 at OP No.2 was done but during this period of long two months the OP No.1 did not think it necessary to find out as to why the pyogenic materials were oozing over right heap of the complainant from the surgical implant removal site. 

In this case, foreign body (a big piece of gauze) was left inside the wound of the complainant by the OP No.1 either deliberately or accidentally at the time of surgical operation for removal implant and due to presence of such foreign body pyogenic material was continuously oozing from the wound at surgical site and if the 4^th operation was not done by OP No.3 and the said gauze piece was not removed the complainant had to suffer the consequences. 

Under these circumstances and in the absence of any valid explanation by

Contd.....P/9

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the OP Nos.1 & 2 which would satisfy this Forum that there was no negligence on their part, this Forum has no hesitation in holding that the pyogenic material continuously oozed from the wound over right heap of the complainant from the surgical implant removal site due to presence of a big gauze piece which was left inside her right femur in course of removal of the surgical implant from her right femur by the OP No.1 at OP No.2 and the complainant is victim of medical negligence on the part of the OP No.1 & OP No.2 both during her post implant removal treatment for which the complainant suffered intense trauma and mental agony and suffering and if the complainant did not decide to carry out her post implant removal treatment under OP No.3, the presence of the big gauze piece deep into the wound at the said surgical implant removal site of the complainant would never be bought to look and the same could have lead to her fatal consequences. 

In view of above findings, we are of the view that the complainant is able to prove her case. Therefore, the complainant is entitled to get a sum of Rs.27,900/- towards the expense incurred by her for the removal of implant in the right femur and the subsequent operation of the complainant by the OP No.1 at OP No.2 for the medical negligence of the OP No.1 and she is further entitled to get a sum of Rs.25,083/- incurred by the complainant towards her entire post implant removal treatment under OP No.3 and the complainant is further entitled to get compensation to the tune of Rs.8,00,000/- for mental agony and suffering caused to her on account of serious negligence on the part of the OP Nos.1 & 2 to render medical service to the complainant.  The complainant is further entitled to get a sum of Rs.10,000/- towards litigation cost.      

Both the issues are disposed of accordingly.  

In the result, the case succeeds in part.

Hence, it is

                           O R D E R E D

that the Consumer Case No.64/S/2014 is allowed on contest in part against the OP Nos.1 & 2 with cost and the case is dismissed against Proforma OP No.3 as no relief was sought for against him.

Complainant is entitled to get a sum of Rs.27,900/- towards the expense incurred by her for the removal of implant in the right femur and the subsequent operation of the complainant by the OP No.1 at OP No.2 for the medical negligence from the OP Nos. 1 & 2.

Contd.....P/10

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The complainant is further entitled to get a sum of Rs.25,083/- incurred by the complainant towards her entire post implant removal treatment under OP No.3 from the OP Nos.1 & 2.

The complainant is further entitled to get a sum of Rs.8,00,000/- for mental agony and suffering caused to her on account of serious negligence on the part of the OP Nos.1 & 2 to render medical service to the complainant from the OP Nos.1 & 2.

The complainant is further entitled to get a sum of Rs.10,000/- towards litigation cost from the OP No.1 & 2. 

OP Nos.1 & 2, who are jointly and severally liable, are directed to pay a sum of Rs.27,900/- by issuing an account payee cheque in the name of the complainant towards the expense incurred by complainant for the removal of implant in the right femur and the subsequent operation of the complainant at OP Nos.1 & 2 for the medical negligence within 45 days from the date of this order.

OP Nos.1 & 2, who are jointly and severally liable, are further directed to pay a sum of Rs.25,083/- by issuing an A/C payee cheque in the name of the complainant incurred by the complainant towards her entire post implant removal treatment under OP No.3 within 45 days from the date of this order.

OP Nos.1 & 2, who are jointly and severally liable, are further directed to pay a sum of Rs.8,00,000/- by issuing an A/C payee cheque in the name of the complainant for mental agony and suffering caused to complainant on account of serious negligence on the part of the OP Nos.1 & 2 to render medical service to the complainant from the OP Nos.1 & 2 within 45 days from the date of this order.

OP No.1 & 2, who are jointly and severally liable, are further directed to pay sum of Rs.10,000/- by issuing an A/C payee cheque in the name of the complainant towards litigation cost within 45 days from the date of this order.

Failing which the amount will carry interest @ 9% per annum on the awarded sum of Rs.8,52,983/- from the date of this order till full realization. 

In case of default, the complainant is at liberty to execute this order through this Forum as per law. 

Let copies of this judgment be supplied to the parties free of cost.