DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 68/2014
Date of Filing: Date of Admission Date of Disposal:
12.02.2014 17.02.2014 11.09.2015
Complainant/s = Vs. = O.Ps.
Sri Subrata Bose, 1. Barrackpore Medicare and
S/o. Sri Haradhan Bose, Recovery Centre Ltd (B.M.R.C)
Mondalpara, Shyamnagar, 6/6, B.T. Road, Talpukur, Kol-123,
Abantipur, P.O. Shyamnagar, P.O. Talpukur, P.S. Titagarh,
Abantipur, P.O. Shyamnagar, Dist- North 24 Pgs,
P.O. Jagadal, West Bengal.
Dist-North 24 Pgs, 2. Dr. Nirmallya Basu,
W.B. Barrackpore Medicare and Recovery
Centre Ltd (b.M.R.C),
6/6, B.T. Road, Talpukur, Kol-123,
P.O. Talpukur, P.S. Titagarh,
Dist- North 24 Pgs,
West Bengal.
3. Dr. Sandipan Biswas,
Barrackpore Medicare and Recovery
Centre Ltd (B.M.R.C),
6/6, B. T. Road, Talpukur, Kol-123,
P.O. Talpukur, P.S. Titagarh,
Dist- North 24 Pgs, W. B.
Advocate for the Complainant:- Rajesh Biswas and Others.
Advocate for the OPs:- Amitava Chowdhury.
P R E S E N T :- Smt. Bandana Roy ………………….President
:-Sri Rabideb Mukhopadhyay…….Member
J U D G E M E N T
Facts of the case, in short, is that the O.P is a private medical institution and engaged in rendering / providing the medical services including other related services through the customers/ patients at large and also carries on business within the jurisdiction of this Ld. Forum.
The complainant stated that the complainant on 14.09.10 has suddenly meet with an accident and sustain injuries and immediately the local people take
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him to nearby Ichapore Rifle Factory Hospital and wherein the complainant was only aided by a proper fast aid and discharged from therein as because the said Ichapore Rifle Factory Hospital was only for the military not for the civilians. Then and then the complainant has been shifted to the O.P. No.1 from the S. S. K. M Hospital and accordingly the complainant has got admitted on 16.09.10 before the O.P. No.1.
The complainant further stated after getting admitted the O.P. No.1 have clinically examined the complainant and suggested for some diagnostic test and accordingly the complainant as per advice of the O.P. No.1 done one X-ray on 16.09.10 before the O.P. No.1 and one C.T. Scan of brain was performed. Again on 17.09.10 another X-Ray was done over the pelvis of both hips and right knee and from such X-Ray report it was revealed that there is a fracture in the right shaft femur of right knee AP/LAT. On the next date that is on 18.09.10 the blood test was done and the O.P. No.1 also issued requisition for 2 units of blood of blood group O+ to transfuse over the body of the complainant.
The complainant also stated that the O.P. No.1 after consulting with all pathological test reports have suggested for operation of the complainant with a diagnosis of fracture shaft of right femur. As a result of that as per advice of the O.P. No.1 on 18.09.10 one operation was done by the O.P. No.2 Dr. Nirmalya Bose at the O.P. No.1 for correction of such fracture of the complainant.
The complainant further stated that after operation one X-Ray and blood test was done on 20.09.10 and the complainant was under observation till 22.09.10. Accordingly, the O.P. No.1 issued one discharged certificate on 21.09.10 with some advices to be followed by the complainant, but originally the complainant was discharged from the O.P. No.1 on 22.09.10 at 10:00 A. M. It is pertinent to mention that the nature of operation was performed is ORIF with femoral IL nail( surgical implants).
The complainant also stated that after getting discharged from the hO.P. No.1 as per advice in the discharged certificate the complainant has consulted with the O.P. No. 3 on 20.10.10 for further check up and with some pain over the said operated knee of the complainant and the O.P. No.3 after clinical check up of the complainant have diagnosed that the complainant is suffering post operation shaft of the right femur and also high grade fever and accordingly the O.P. No.3 have advised the complainant for urgent admission in BMRC the O.P. No.1 in general bed for further management and also advised for some blood test.
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The complainant further stated that the said O.P. No.3 have referred the complainant to the O.P. No.2 for further treatment of the complainant and accordingly after getting referred the complainant on 26.10.10 have consulted with the O.P. No.2. The O.P. No.2 on 26.10.10 after clinical examination of the complainant have observed in his prescription that the complainant is a F.U case of shaft of right femur and also observed that 5 weeks post operation observation is this frank mobility seen at sate and the X-Ray report also suggest that loosening of distract locking screw and as a result of that the O.P. No.2 have advised the complainant to be admitted for re-application of locking screws as OPD case BMRC on 27.10.10.
The complainant also stated that the complainant as per advice of the O.P. No.2 on 27.10.10 at about 08:20 A.M have admitted before the O.P. no.1 for such diagnosis of the O.P. No.2 and advise and accordingly several pathological and clinical test was done and accordingly the O.P. no.2 have operated the complainant on 27.10.10 and the nature of operation was dynamization of femoral IL nail done GA (TIVA) and on 28.10.10 the complainant was discharged from the O.P. No.1 with some advices.
The complainant further stated that in spite of the second operation for correction of such loosening of screws, the suffering and pain of the complainant subsists and the same was increased day by day and due to such the normal life of the complainant got hampered and the complainant was unable to move and work properly to do his daily work. Accordingly, the complainant again on 29.10.10 at about 01:40 A.M got admitted before the O.P. no.1 under the O.P. No.2 for observation and further treatment and the complainant was admitted till o1.11.10 and during the stay the complainant was undergone with several tests and treatments and after completion of all such treatments the complainant was discharged from therein on 01.11.10 with some advices and some medicines and accordingly the complainant follows all the instructions and took all medicines as advised by the O.P. no.2.
The complainant also stated that the complainant in spite of all series of treatments and operations did not felt any comfort or the sufferings of the complainant is cured as per treatment of the O.P. no.2 and the suffering of the complainant increased day by day and the complainant was consulted with the O.P.No.2 on 25.06.11 with savior pain and discomfort in walking and the O.P. No.2 after seen the complainant have only advised for digital X-Ray of the right thigh and bed rest with an advice to further review and some blood tests and accordingly the complainant have followed all advices of the O.P. No.2 and
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done the all diagnostic tests as advised by the O.P. No.2 but no correctional treatment or any remedy for such suffering of the complainant was suggested by O.P. No.2. It is pertinent to mention that the same pain and suffering over the said operated portion of the complainant remains and the complainant lastly on 02.02.12 have consulted with the O.P. No.2 and narrated all the discomfort and sufferings of the complainant before the O.P. no.2 but again after examination of the complainant only suggested for X-Ray but no correctional or remedial treatment was suggested by the O.P. no.2 and only advised the complainant to take rest at home and were knee extension brush but till today the complainant is suffering from same kind of pain and discomfort and inability in walking due to such incorrect operation and treatment of the O.P. no.2.
The complainant further stated that the O.P. no.2 has done the entire operation procedure of the complainant in highly negligent and deficient manner without applying their skills in proper way and manner and without considering the effect of the same. There is a gross negligence on the part of the O.P. no.2 in rendering his service to the customer like the complainant and also highly deficient in nature. Hence the complaint.
The O.Ps have contested the case by way of filing written version.
The O. P. No.2 stated that the O.P denies and disputes all the allegations made therein. The complainant was admitted in BMRC Hospital on 16.09.10 with a fractured shaft of right femur bone, sustained in a road accident. After routine preoperative investigations open reduction and internal fixation with femoral interlocking nail surgery for the fracture was performed on 18.09.10. Initially after 48 to 72 hours of surgery only touchdown weight bearing is permitted, that is toe touch weight bearing with a pair of crutches is allowed. Weight bearing is progressed as callous formation occurs 3 to 6 weeks after surgery but the complainant started unprotected full weight bearing within 48 hours of surgery while being admitted, defiant and arrogant. The complainant did not bother to follow the doctor’s advice even during admission. The post operative period of the complainant was otherwise uneventful and the complainant was otherwise uneventful and the complainant was discharged on 22.09.10.
The O.P. No.2 further stated that the complainant came for the next checkup on 26.10.10 i.e. after one month of the operation. After examining the complainant, O.P. No.2 found that the frank mobility of the complainant could be elicited at the fracture site and the X-Rays revealed loosening of the distal screws which could be due to early weight bearing by the complainant. The complainant
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was re-admitted on 27.10.10 under the O.P. No.2 and the O.P. No.2 removed the loosened screw and fresh distal locking screw inserted. The complainant was discharged on 28.10.10 and the O.P. No.2 was advised rest at home.
The O.P. No.2 also stated that the complainant again got admitted in the Nursing Home of the O.P. no.1 with a complication of high fever. Routine investigations were done but the test reports did not revealed any infection at the operative site. The complainant was advised to come for checkup at the end of November, 2010 but the complainant did not follow up as advised rather the complainant came for check up on 25.06.11 with a complaint that he was facing problem at the time of walking. The complainant was advised to do the X-Ray but the complainant did not turn up with them.
The O.P. No.2 also stated that after eight months the complainant again attended his clinic on 02.02.12 with a history of re-trauma on 31.01.12. The X-ray was done and it revealed that the femur fracture had united by them. The complainant had suffered a fracture patella for which he was told to wear a knee brace and review after six weeks but the patient did not follow up thereafter.
The O.P. No.2 further stated all treatment procedures were under taken as per the standard treatment techniques described in authentic text books, all complications that occurred were promptly diagnosed, briefed to the party in detail, promptly investigated and treated. But the complainant had miserably failed to follow doctors advices, he was extremely irregular in follow up and very non complaint.
The O.P. No.2 also stated that the O.P. no.1 followed the standard procedure of treatment of the fracture. The O.Ps took all necessary steps and care for the recovery of the complainant. Hence the O.P. Nos. 1 and 2 prayed for dismissal of the case.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
Both parties have filed affidavit-in-chief and also documents. We have perused the documents.
Before discussing the decision with reasons, it may be heard that the Ld. Lawyer for the complainant and also the complainant did not turn up from 29.04.15 in this case. He was sent notice and notice was duly delivered but the
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complainant did not turn up to argue this case. However, the complainant has filed affidavit-in-chief and also filed original discharged certificate of B.M.R.C dated 21.09.10, blood report of B.M.R.C dated 17.09.10, blood group of B.M.R.C dated 18.09.10, original X-Ray report dated 16.09.10, original C.T. Scan Brain report dated 17.09.10, original cross matching report dated 18.09.10, original X-ray report dated 17.09.10, original urea and creatinine test dated 18.09.10, original pathology report dated 18.09.10, HB, TC, DC, ESR dated 18.09.10, X-ray report dated 20.09.10, Test of bilirubunin dated 20.09.10, Test of Hemoglobin report dated 21.09.10, report of admit opr Reapplication dated 26.10.10, Discharge certificate of B.M.R.C dated 28.10.10, Discharge certificate of B.M.R.C dated 01.11.10, Chakare Report dated 02.12.12 and X-ray plate dated 26.06.11.
We have perused all the documents filed by the complainant. We have also perused the questionnaire filed by the O.P. No.2. But the complainant did not give any answer to the questionnaire filed by O.P. Nos. 2 and 3.
Admittedly, after first operation the complainant was re-admitted on 27.10.10 under the O.P. No.2 and O.P. no.2 to remove the loosened screw and fresh distal locking screw inserted. The complainant was discharged on 28.10.10 and the O.P. No.2 was advised rest at home.
The complainant again got admitted in the Nursing Home of the O.P. no.1 with a complication of high fever. Routine investigations were done but the test reports did not revealed any infection at the operative site. The complainant was advised to come for checkup at the end of November, 2010 but the complainant did not follow up as advised rather the complainant came for check up on 25.06.11 with a complaint that he was facing problem at the time of walking. The complainant was advised to do the X-Ray but the complainant did not turn up with them.
The O.P. No.2 also stated that after eight months the complainant again attended his clinic on 02.02.12 with a history of re-trauma on 31.01.12. The X-ray was done and it revealed that the femur fracture had united by them. The fact was not controverted by the complainant by any cogent evidence. It was stated by the O.P. no.2 that the complainant had suffered a fracture patella for which he was told to wear a knee brace and review after six weeks but the patient did not follow up thereafter.
The complainant did not appear personally to explain what his problem was after the operation in O.P. No.1 and what negligence was done by O.P. Nos. 1, 2
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and 3 in connection with his operation. In this regard we want to rely on a decision reported in 2014 (4) CPR 71(NC) wherein it has been held that ‘So long as doctor follows a practice acceptable to medical profession of that day, he cannot be held liable for negligence merely because a better method of treatment was also available’.
Hon’ble Supreme Court in the case of ‘Martin F Desouza has observed that ‘Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
When a patient dies or suffers some mishap, there is tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot but surely he cannot be penalized for losing a case provided he appeared in it and made his submission’.
On scrutinizing all the documents, it is defect to conclude that the O.Ps were negligent in treatment of the complainant or there was any deficiency on their part.
In view of that, we are not inclined to grant any relief to the complainant.
Hence
Ordered,
that the complaint be and the same is dismissed on contest.
Parties to bear their own cost.
Let copies of the order be supplied to the parties free of cost when applied for.
Member President
Dictated & Corrected by me.
