Jharkhand

Bokaro

CC/18/37

Chotelal Gope - Complainant(s)

Versus

Dhanwantrari Orthopedic & Trauma Centre - Opp.Party(s)

Dadan Singh

08 Sep 2022

ORDER

District Consumer Disputes Redressal Commission, Bokaro

Date of Filing-17-03-2018

      Date of final hearing-08-09-2022

 Date of Order-08-09-2022

Case No. 37/2018

Chotelal Gope S/o- Saheb Ram Gope,

Village- Barudih, P.O. Radha Nagar, P.S. Balidih,

District Bokaro Jharkhand

Vs.

1. Dhanwantari Orthopedic & Trauma Centre Pvt. Hospital of Dr. Anil Kumar Singh Plot No. 132, Co Oprative Colony, Bokaro Steel  City
2.  Dr. Anil Kumar Singh (MBBS, M.S., Ph.D) Plot No. 132, Co Operative Colony bokaro Steel City District- Bokaro Jharkhand
3.  M/s United India Insurance Co. Ltd. Professional Indemnity Doctors Policy No. 2101012715P106319928

Branch Sector-4, City Centre, Bokaro Steel City, Bokaro

 

                             Present:-

                             Shri Jai Prakash Narayan Pandey, President

Shri Bhawani Prasad Lal Das, Member

          Smt. Baby Kumari, Member

PER- J.P.N Pandey, President

-Judgement-

1. This complaint  case has been filed by an unfortunate father with prayer to pass order against O.Ps. to pay Rs. 15,00,000/- as compensation on account of medical negligence committed by O.P. No. 1 & 2 with his son aged about 5 years during his treatment resulting to amputation of his right hand.
2.  Complainant’s case in brief is that on 23.02.2016 his son namely Prem Kumar @ Pradeep Kumar Gope aged about 5 years sustained injury causing fracture in between elbow and wrist of right hand for which he rushed to Dhanwantari Orthopaedic & Trauma Centre, Plot No. 132, Co-operative Colony, Bokaro Steel City, Bokaro run by Dr. Anil Kumar Singh for treatment. Further case is that on same day i.e. on 23.02.2016 plaster was done on right hand of the patient and at that very time complainant had gone on duty at BSL because he was working as daily wage Mazdoor under a contractor, hence said child was taken to hospital by his uncle Sagar Gope and in the hospital     X-ray and Plaster was done. Further case is that inspite of plaster  patient was not feeling comfortable rather having regular pain so complainant visited the hospital and consulted O.P. No. 2 on 24.02.2016 where O.P. No.2 has cut small portion of plaster from Elbow side and after inspection told that nothing is wrong with treatment and its procedure. On 28.02.2016 when complainant and his wife noticed the swelling and blackening of fingers of plastered hand then they immediately rushed to O.P. No. 2 where O.Ps. smelled wrong with the child and with view to cover-up negligence in treatment obtained signatures of complainant on the prescription paper dt. 23.02.2016 endorsing some statement in Hindi with view to shift liability of negligence upon complainant and others and also made some averment on prescription and referred the patient with endorsement “ Upper Limb gangrenous bellow elbow infected patient referred to RIMS”, Ranchi or higher for better/treatment. Further case is that patient was taken to RIMS on 29.02.2016 where he was admitted under unit of Dr. L.B. Manjhi who told that Gangrenous Limb cannot be saved and amputation is solution to save life. Further case is that since complainant was under ESI facility hence he rushed to ESI Hospital, Namkum, Ranchi on 01.03.2016 where patient was examined and referred to tie-up hospital i.e. Devkamal Hospital & Research Centre, Ranchi on 02.03.2016 where the son of complainant was admitted on same day and later on his right side hand below Elbow was amputated on 03.03.2016 and on 05.03.2016 there was stump closure and STG applied. Further case is that due to negligence in treatment by O.P. O.P. No. 1 & 2 the (Hospital/ Doctor) the complainant’s son aged about 5 years lost his right upper limb bellow elbow at that very age and will suffer for whole life. Further case is that O.P. Doctor had made forceful averment on prescription dt. 23.02.2016 with malafide intention to shift liability upon Guardian/Parents of the child by misuse of his position by taking signature on the prescription for the day i.e. 23.02.2016 on which complainant was not present in the hospital with injured child. Therefore, this case has been filed with above mentioned prayer.
3.  On issuance of notice, O.P. No.1 & 2 appeared and they have filed joint W.S. mentioning therein that the complaint is not disclosing any negligent act of O.P. No.2 nor it is disclosing cause of action of the case, hence it is liable to be dismissed. Further reply is that complaint is bad for non joinder of United India Insurance Co. Ltd. with whom O.P.No.2 has got insurance policy valid from 23.09.2015  to 12.09.2016. Further reply is that O.P. No.2 is a well qualified and reputed doctor with substantial goodwill and experience since 1991 and this case is full of concocted facts. Further reply is that the patient was given proper slab and asked to come for a follow up immediately if there is numbness, swelling and black colour of the skin but it is negligence on the part of the patient party not to come for treatment of his son. On 24.02.2016 the patient party was again asked to come for a follow up immediately if there is numbness, swelling and black colour of the skin and said instruction was given verbally as well as in written form but complainant did not follow the advice of the doctor hence it is sole negligence of the patient party who did not appear till 28^th  rather patient was brought after three days of developing of blackening of skin, and same has been written on the prescription and O.P. No. 2 has performed his act diligently, prudently with utmost due care and caution in treating the patient. Further reply is that the contents of para 1 & 2 of the complaint petition cannot be replied for want of knowledge at the time of treating the patient. In respect to contents of para No. 3 ,4 & 5 of the complaint petition it is mentioned that it is the negligence of the patient party and patient was given proper treatment with sufficient directions for a follow up which was not followed by the complainant himself. Contents of para 6 of the complaint petition have been denied and it is mentioned that on 24.02.2016 the patient party was asked to come for a follow up immediately if there is numbness, swelling and black colour of the skin but it was not followed by the patient party who did not appear till 28^th . Further in respect to para 7 & 12 of the complaint petition it has been denied and it is mentioned that patient was brought after three days of developing of the symptoms. Contents of para 8,9,10,11, & 13 of the complaint petition have been denied and it is mentioned that complainant is not entitled to get any relief because there is no negligence, deceptive practice, deficiency in service or unfair trade practice on the part of O.P.No.2 hence he is not liable to pay anything rather complainant be ordered to pay Rs. 10,000/- u/s 26 of Consumer Protection Act. 1986 for filing false and vexatious complaint.
4.  After filing of the W.S. by O.P. No. 1 & 2 O.P. No. 3 M/s United India Assurance Co. Ltd. has been made party in this case as O.P. No. 3 and on receipt of notice, O.P. No. 3 has also filed W.S. mentioning there in that contents of para 1 to 10 of the complaint petition are not concerned with this O.P. and para No. 11, 12 & 13 of the complaint petition are denied. Further reply is that the amount of compensation is highly exaggerated, inflated, misleading one and paintif is not entitled to get any portion of compensation.
5.  On basis of the pleadings of the parties following points are being framed  for discussion and consideration:-

1. Whether there is medical negligence on the part of O.P. No.1 & 2 during treatment of the son of the complainant?
2. Whether there is any deficiency in service on the part of O.P. No.1 & 2 in respect to treatment of the son of the complainant ?
3.  Whether complainant is entitled to get any compensation as claimed ?

6. On careful perusal of the pleadings of the parties following facts are either appearing to be admitted by both the parties or have not been controverted or specifically denied.
   1. That the son of the complainant namely Prem Kumar @ Pradeep Kumar Gope aged about 5 years sustained injuries on 23.02.2016 during opening of door by climbing on chair

causing fracture of his right hand between elbow and wrist.

2.  That at the time of accident complainant being working as Mazdoor through contractor in BSL Plant was on duty in the BSL Plant.
3.  That on 23.02.2016 said son of the complainant was taken by his uncle Sagar Gope to the hospital (O.P. No. 1 & 2) for treatment.
4. That O.P. No.2 seen the patient and after X-ray, plaster of the fractured right hand was done by O.P. No.2.
5. Said treatment was done on 23.02.2016 and later on complainant with his son consulted the O.P. No.2 on 24.02.2016 for follow up.
6. That on 28.02.2016 O.P. No. 2 has found the patient in very bad shape, condition, critical condition, blackening of right hand hence he was referred immediately to higher centre for treatment.
7. That right hand of the son of the complainant was cut and removed after treatment at Ranchi to save his life as because there was gangrene in right arm and hand below the elbow.

7.  Now, we would like to discuss the case in respect to point No. A & B because both are interlinked with each other. It is alleged that the act of O.P. No.2 (the treating doctor) was negligent act resulting to his rash and negligent approach in plastering the hand resulted in development of gangrene and due to that very act right arm of a child of the 5 years age was amputated to save his life. Hence he is liable to be directed to pay compensation as claimed. On the other hand as per O.P. No.2 there is negligence on the part of guardian and parents of the patient who are responsible for this episode.
8. On careful perusal of the complaint petition it appears that fact related to treatment and plastering of the right hand of the patient is not in dispute. As per para-6 of the complaint petition inspite of plaster done by O.P. No.2 on the hand of the child he was not comfortable and regularly complaining of pain hence on next day i.e. on 24.02.2016 doctor had cut small portion of plaster from elbow side and after inspection told that nothing is wrong with treatment and its procedure. This para has been replied by the O.P. No.1 & 2 at para 10 and 16 of the W.S. but no where it has been replied by the O.P. No.2 regarding removal  of small portion of the plaster done earlier. Visit of patient on 24.02.2016 at the hospital of the O.P. No. 1 & 2 is not in dispute. Since there is no reply of O.P. No. 1 & 2 in respect to removal of small portion of the plaster done earlier, hence this fact will be treated as admitted fact. No where it has been mentioned that why and for what purpose removal of small portion of the plaster was essential. On this aspect the prescription of O.P. No. 2 is also silent though on 24.02.2016 some medicines have been prescribed by the doctor (O.P. No.2) but he has purposely concealed the mentioning about removal of small portion of the plaster already done earlier. If there was no any complain by the patient on 24.02.2016 then why some medicines have been prescribed and some intervention has been made in the plaster already done it is not being reflected by the prescription prepared by O.P. No.2.
9. It is apparent from the prescription dt. 28.02.2016 written by O.P. No.2 that on that very day the condition of the patient was critical, blackening of right hand and portion of forearm was found hence patient was immediately referred to higher centre for treatment and management.
10. Record shows that from Bokaro patient was shifted to RIMS, Ranchi on 29.02.2016 where he was admitted vide PR No. 2548 and some investigations were done there. Thereafter, patient was shifted to ESIC Model Hospital, Namkum, Ranchi on 01.03.2016 where treating doctor has mentioned that “ Supracandylar # Humurus- DOI- 23/02/2016. Now resulted in Gangrene of right Forearm and hand. Case was treated in Bokaro at Pvt. Clinic on 23.02.2016 POP cast- done on same day resulted in cambartment Syndrom/Arterial Compression thereafter, Gangrene developed at the 3^rd day. Came to Ranchi on 28.02.2016 and admitted in RIMS. Patient has been referred to tie-up hospital for amputation at allocated portion of upper limb”.  
11. After above mentioned referral said child was admitted in DEVKAMAL HOSPITAL & RESEARCH CENTRE, RANCHI on 02.03.2016 and discharged on 11.03.2016 where his right side hand below elbow was amputated to save his life. The discharge summary of that very hospital shows that patient was brought before said hospital with complaint of right upper limb gangrenous below elbow and same diagnosis was finally done in that very hospital.
12. On careful perusal of the papers prepared by ESI Hospital Namkum, Ranchi it appears that as per medical expert also the appearance of gangrene is the result of plaster done on 23.02.2016 by O.P. No.2 at Bokaro.
13. Complainant has been examined as witness of the case and during examination-in-chief on affidavit he has well proved his case as mentioned in the complaint petition and during cross-examination also no any significant contradiction has been brought by the O.Ps. He has denied the suggestion that it is not the fact that due to his negligence such development was occurred. At para 21 of his evidence he states that the treating doctor at RIMS has told that the Pucca Plaster was not required to be done with such child and it has been wrongly done.
14. On the other hand O.P. No. 2 has himself produced as witness and during cross-examination he has admitted the fact regarding fracture of the hand of the child, his treatment on 23.02.2016. He has further stated that only on 23.02.2016 and 28.02.2016 patient was brought before him but he was not brought before him on 24.02.2016.
15. Reliance may be placed on the principles laid down by the Hon’ble  NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,NEW DELHI in the case of Abhishek Ahluwalia Vs. Sanjay Saluja reported in MANU/CF/0363/2014,Decided On: 01.07.2014 para128, 137  & 138 of that very report are as follow :-

128. The fact that there was development of gangrene, is not disputed by respondent No. 1. Therefore, the onus of proof would shift upon to the Doctor (Respondent No. 1) to explain as to how and when gangrene had developed. However, respondent No. 1 failed to give any sound and convincing reason. Instead, he shifted the entire blame for amputation of leg on the Doctors of Respondent No. 4-Hospital.

 

 

137. In B. Krishna Rao Vs. Nikhil Super Speciality Hospital, III (2010) CPJ 1(SC) the Hon'ble Apex Court held;

It is not necessary to have opinion of the expert in each and every case of medical negligence.

138. In the instant case, appellants in view of the admission made by respondent No. 1 as well as on the basis of documentary evidence placed on record, had discharged the initial burden of making a case of negligence and remiss on the part of Respondent No. 1. Therefore, we are of the considered view that under such circumstances, there was no requirement of any expert opinion.

16.  On careful perusal of the pleadings of the parties as well as the evidence adduced in the case specially the facts already admitted or specifically not denied it is apparent that the amputation of the right arm of a child at the age of 5 years of his life was result of the wrong treatment and plaster done at Bokaro. The prescription of O.P. No.2 itself shows that on 23.02.2016 patient was brought before the O.P. No.2 by his uncle Sagar Gope but at the margin of that very prescription O.P.  No. 2 has obtained the signature of the complainant. This fact alone shows that at the time of treatment of the patient O.P. No. 2 was in dominating position and by use of his dominance he has obtained three signatures of complainant on one prescription at three places on 24.02.2016, 28.02.2016 and 1^st signature is having no date. On 23.02.2016 there was no instruction in Hindi by O.P. No.2 but in the prescription dt. 24.02.2016 instruction in Hindi has been given with direction to come on 24.02.2016 at 11:30 however, on 24.02.2016 itself or thereafter such instruction has been incorporated in the prescription. Therefore, it appears that O.P. No. 2 was very much suspicious after referral of the patient and during it he has tried to patch up matter by obtaining signatures on different part of the prescription and also by making endorsement in Hindi.

17. As it has been specifically mentioned by the treating doctor at ESI Hospital, Ranchi  that development of gangrene is result of the plaster dt. 23.02.2016 hence in view of specialist’s opinion burden was upon O.P. No.2 to prove it that he was not negligent to which he has not discharged.

18. In light of above discussion as well as the principles laid down in above noted cases we are of the view that there is sufficient materials to hold that O.P. No. 1 & 2 have committed medical negligence in treatment of a 5 years old child namely Prem Kumar @ Pradeep Kuamr  Gope and there is deficiency in service by them in the treatment given to said child resulting to development of gangrene, causing amputation of right arm to save his life, otherwise he would have died. Accordingly both points are being decided in favour of the complainant and against O.P. No. 1 & 2.

19. Point No. C:-  In light of above discussion we are of the view that complainant is entitled to get relief as claimed.

20. In the case of Shoda Devi Vs. DDU/Ripon Hospital Shimla and Ors reported in AIR2019SC2965 or (2019)14SCC357 or MANU/SC/0344/2019 Hon’ble SUPREME COURT OF INDIA, in Civil Appeal No. 2557 of 2019 (Arising out of Special Leave Petition (Civil) No. 26789 of 018),Decided On: 07.03.2019 has been pleased to laid down principle in respect to award of compensation in medical negligence cases at para 15 & 16 0f that very report which are as follow:-

15. As regards the quantum of compensation in such cases, it is noticed that in the case of Alfred Benddict v. Manipal Hospital MANU/SC/0779/2014 : (2015) 11 SCC 423, where, for the reason of medical negligence, a 2-year-old girl developed gangrene in right arm which resulted in its amputation, this Court, considering the age of the child and her life-long suffering, be it her education or marriage prospects, awarded a lump sum of Rs. 20,00,000/- as compensation. Likewise, in the case of Nizam's Institute of Medical Sciences (supra), where the complainant had suffered paraplegia as an outcome of the surgery and was thereafter confined to a wheelchair, this Court pointed out some of the factors that weigh in while quantifying compensation in such cases. This Court, inter alia, observed as under:

 

90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis-à-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.

91. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.

92. Mr. Tandale, the learned Counsel for the Respondent has, further submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method.

16. In the ultimate analysis, the requirement in such cases of disablement due to medical negligence is of awarding just and reasonable compensation to the victim, while keeping in view the pecuniary damages as also the non-pecuniary damages like pain and suffering and loss of amenities of life.

21.    Though there is no pleading of O.P. No. 1 & 2 regarding limitation in filing of this case, however O.P. No. 3 has mentioned in W.S. at para 3 that case is barred by the law of limitation. On this aspect we would like to mention here that amputation of the right hand of the child was done on 03.03.2016 and thereafter, legal notice dt. 15.11.2017 was served on O.P. No. 1 & 2 who replied it vide reply dt. 25.11.2017 and demanded copy of the papers which were supplied to them on 27.12.2017 thereafter, legal notice has been replied by O.P. No.1 & 2 vide reply dt. 23.01.2018. In this way cause of action of the case arose firstly on 23.02.2016 on which date O.P. No. 1 & 2 started treatment of the child and it continued till 23.01.2018 (the date on which reply of legal notice was finally given). Thereafter this case has been filed on 17.03.2018 .  Therefore, there is no delay in filing the case rather it has been filed within prescribed period of limitation.

22.   So far quantum of compensation is concerned on this aspect this Commission has to consider the age of the child, which was about 5 years at the time of occurrence and due to negligent act of O.P. No. 1 & 2 his right arm has been amputated causing permanent loss for whole life. Said innocent child will lose so many future prospects related to job, marriage etc. and he will bear social stigma in the society. The parents and other family members of said child will also be deprived from service and earnings of that very child. These are few examples and apart from it there are several aspects depriving the innocent child from leading a healthy and complete life. In light of above discussion and the principles laid down in above noted case by the Hon’ble Supreme Court we are of the view that complainant is entitled to get relief as claimed and also entitled to get compensation as mentioned in the complaint petition. Accordingly this point No. C is also being decided in favour of the complainant and against the O.P. No. 1 & 2.

23.   Accordingly prayer of the complainant is being allowed in the following manner:-

        A. O.P. No. 1 & 2 are directed to pay Rs. 15,00,000/- within 45 days from production/ receipt of this order, as compensation to the complainant for the mental agony, trauma etc. suffered by his son as well as future loss by various ways to be occurred with the son of the complainant in case it is not paid within above mentioned period then these O.Ps. shall pay 10% interest per annum on above amount from 17.03.2018  ( the date on which case was filed). Further O.P. No. 1 & 2 are directed to pay Rs. 50,000/- as litigation cost to the complainant within above mentioned period. On receipt of payment of Rs. 15,00,000/- compensation the complainant will fix it in the name of said Prem Kumar @ Pradeep Kumar Gope in Nationalized Bank as Fixed Deposit for the period till the attainment of majority of his son namely Prem Kumar @ Pradeep Kumar Gope and after attending the majority said Prem Kumar will utilize said amount along with its interest to earn his livelihood. After payment by O.P. No. 1 & 2 they will have liberty to realize the amount to the extent covered under the Insurance policy from O.P. No.3.