IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/103/2011
Date of Filing: 08.09.11 Date of Final Order: 10.01.2019
Complainant: Sajjad Sk.
S/o Munsur Sk.
Vill-Tiarpukur,
PO-Durgapur,
PS-Berhampore,
Dist-Murshidabad
-Vs-
Opposite Party: 1. Dr. H.K. Mondal M.S. (Ortho)
Consultant Orthopeadic Surgeon
Khatiktala (Mondal Ortho Clinic)
PO & PS- Berhampore, Dist-Murshidabad
2. Dr. S.Kundu, Orthopaedic Surgeon
N.R.S. Medical College and Hospital
138, A.J.C. Bose Road, Kolkata-14
Agent/Advocate for the Complainant : Sri. Sadhan Kumar Saha.
Agent/Advocate for the Opposite Party : Sri. Siddhartha Sankar Dhar.
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Asish Kumar Senapati, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Sajjad Sk. (here in after referred to as the Complainant) filed the case against Dr. H.K.Mondal, M.S. (Ortho) and another (here in after referred to as the OPs) praying for compensation alleging medical negligence and deficiency in service.
The sum and substance of the complaint case is as follows:
The Complainant went to the chamber of OP No.1 at Mondal Artho Clinic as he met an accident on 12.06.2010. As per advice of the OP No.1, the Complainant admitted himself in R.N. Thakur Diagnostic & Medical Care Centre at Berhampore and the OP No.1 operated the left lower arm by fixing plate and screw on 18.06.10 at the said Nursing Home. The Complainant was not feeling better after his discharge from the Nursing Home and visited the chamber of the OP No.1 who advised him that it would take about six months time to come to the normal position and advised the Complainant to make exercise of his hand and prescribed some medicines. After six months the petitioner did not get any result, for which he visited the chamber of OP No.1 on 27.01.11 and the OP No.1 advised him to re-admit in the said Nursing Home for re-fixation of plate with bone grafting. Accordingly, the Complainant admitted himself in the said Nursing Home and operation was done on 28.01.11 and he was discharged on 30.01.11 but his condition was not improvrd. Thereafter, the petitioner went to N.R.S Medical College and Hospital, Kolkata on 02.03.11 and on examination by RMO, he was referred to a visiting Surgeon of the same unit. After examination, the visiting Surgeon advised him for his admission but as no bed was available he was bound to return his home and ultimately he admitted himself at N.R.S Medical College and Hospital on 06.04.11. After examination, the attending Surgeon diagnosed the case as old fracture lower and of lower left humorous with non-union and his left lower arm was operated on 12.04.11 with re-fixation and bone-grafting and he was discharged on 29.04.11 with advice of some exercise of his elbow and medication. That after such operation from N.R.S Medical college and Hospital, Kolkata, the petitioner received near about his normal condition of the said arm and according to the attending Surgeon of the N.R.S. Hospital, it would take more time to come to the normal condition of the left arm. If the operation was done properly by the OP No.1, the petitioner was cured within short period but the wrong treatment of the OP No.1 caused non-union of bones. The OP No.1 is solely responsible for wrong treatment and operation of the left arm of the Complainant. The Complainant is a truck driver by profession. As a result of medical negligence, the Complainant sustained permanent disablement and he is now completely un-employed. The Complainant paid Rs.13,000/- to the OP No.1 for treatment and spent a lot of money for Nursing Home and medicines and travelling allowance. The petitioner claimed Rs.4,50,000/- against the OP No.1 as compensation and Rs.50,000/- for mental pain and agony.
The OP No.1 contested the case by filing written version, contending that the case is barred by law of limitation. He denied the allegations made out in the complaint against him. It is the case of the OP No.1 that the Complainant sustained injuries in his left upper limb falling road traffic accident on 10.06.10 and came to the OP No.1 with pain and swelling on 12.06.10. An ex-ray was done and a fracture in left humorous at the junction of upper 2/3rd and lower one/3rd . Initially the Complainant was treated in New General Hospital, Berhampore, then he came to the chamber of the OP No.1 on 12.06.10 and admitted at R.N. Thakur Diagnostic and Medical Care Centre on 12.06.10. After proper investigation and check-up the Complainant was operated on 18.06.10 (ORIF of fracture left humorous by plate and screw). His stitches were removed and surgical wound was healthy. After some time, the OP No.1 found that the union of fracture was delayed, as it was high energy trauma, there may be bone and soft tissues damaged and the fracture was lower part humorous. Delayed union or non-union of humorous shaft occurs fairly often within long bone as motion is difficult to control by external means such as Cast, Brace or Splint. Humorous causes 5% non-union for fracture long bone. The new ex-ray showed that there was no sufficient bone formation around the fracture side. So, the OP No.1 decided for re-fixation of bone by plate and screw. Accordingly it was done on 18.01.11 at R.N.Thakur Diagnostic and Medical Care Centre. As fracture union was delayed so re-fixation the bone and bone grafting is the gold standard of treatment. Dynamic compression plating and screw is familiar practice and it is also economic for patient. Someone practice locking plate and screws which was is cost effecting and newer method. Plate fixation with bone grafting was iliac crest for non-union fracture. Humorous has been widely described in the literature. Patient was discharged on 31.01.11 and was advised to attend follow up in the OPs clinic. Everything was going smoothly but suddenly the Complainant stopped coming for follow up and he never informed the OP No.1 that he was not satisfied with his treatment and he liked to attend higher centre for his further treatment. The first operation was proper and it was right choice of the OP No.1 who did it carefully and there was some improvement of limb, the swelling subside, movement of joints like shoulder, elbow, and fingers. There was no loss of muscles or tendon, tear of nerves and vessels. There was no infection from the wound. There was no deformity of limb. Only the union of fracture was delayed. It is purely biological process and new bone formation is a natural process and fracture of long bone is a challenge to an Orthopedic Surgeon and the OP No.1 took the challenge and gave all of his efforts to cure the patients. If there was major fall or long treatment successful their operation would not be possible. The third operation might not be required if the patient had waited for some time. In Kolkata, Doctors have most advanced technology. The treatment given by the OP No.1 is correct. After proper fracture union, the patient is to do physiotherapy and proper exercise of limb for coming to normal activity. The Complainant is not a permanently disabled person. There was no negligence on the part of the OP No.1 and he has no deficiency in service. The OP No.1 prayed for dismissal of the complaint.
The OP No.2 did not contest the case in spite of receiving notice and there is no consumer dispute between the Complainant and the OP No.2.
On the basis of the above versions following points are framed for proper adjudication of the case :
Points for decision
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Has this Forum jurisdiction to entertain the complaint?
- Is there any medical negligence/deficiency in service on the part of the OP No1, as alleged ?
- Is the Complainant entitled to get any relief, as prayed for?
Point No.1
The Ld. Advocate for the Complainant submits that the Complainant is a consumer as he hired the services of the OP No.1 on payment of consideration.
In reply, the Advocate for the OP No.1 says nothing on this point.
On perusal of the complaint, written version and the materials on record, we find that the Complainant hired the services of the OP No. 1 on payment of consideration. Therefore, the Complainant is a consumer in terms of section 2 (I) (d) (ii) of the C.P.Act, 1986.
Point No.2
The Complainant submits that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum.
On a careful consideration over the materials on record, we find that the cause of action arose within the territorial jurisdiction of this Forum and this Forum has pecuniary jurisdiction to entertain the complaint.
Point Nos. 3&4
Both the points are taken up together for the sake of brevity and convenience.
Ld. Advocate for the Complainant submits that the Complainant met an accident and he was treated by the OP No.1 on payment of fees. It is argued that the OP No.1 operated the wound of the Complainant twice on 18.06.10 and 28.01.11 but the condition of the Complainant was not improved, as a result, the Complainant went to N.R.S Medical College and Hospital for treatment on 02.03.11. He argues that the RMO of N.R.S Medical College and Hospital referred the Complainant to a visiting Surgeon on 02.03.11 and the visiting Surgeon advised him for admission for his treatment. He contends that the bed was not available on 02.03.11 for which he admitted himself in N.R.S Medical College and Hospital on 06.04.11 and an operation was done on 12.04.11. He argues that the condition of the Complainant was improved and his sufferings and disablement were due to deficiency in service and medical negligence on the part of the OP No.1. He argues that the screws and plate were not properly placed by the O.P.No.1 and it would be revealed from the ex-ray plates. He submits that the Complainant is entitled to get compensation of Rs.5,00,000/- and Rs.50,000/- for mental pain and agony against the OP No.1. It is contended that the Complainant has filed all documents including the ex-ray plates for kind consideration of the Ld. Forum.
In reply, the Ld. Advocate for the OP No.1 submits that there was no negligence or deficiency in service on the part of the OP No.1 as he treated the patient with standard practice and procedure by bone grafting and fixation of bones by plate and screws. It is submitted that the Complainant has suppressed the fact that he had a history of fall 10 days’ back as it appears from the clinical noting of Doctor at N.R.S. Medical College and Hospital dated 18.07.11. It is argued that the non-union of bones might be due to fall of the Complainant as noted in the BHT of N.R.S Medical College and Hospital dated 18.07.11. In this respect, he refers a decision of the Hon’ble National Commission dated 30.11.16 passed in CC No. 1376/2016. He also refers two other decisions reported in II(2017)CPJ341(NC) and I(2010)CPJ3. It is contended that non-union of bones may be caused due to various reasons and the OP No.1 cannot be held responsible for non-union of bones of the Complainant. He prays for dismissal of the complaint with cost.
Admittedly, the Complainant met a road traffic accident and he visited the chamber of OP No.1 on 12.06.11 (Annexure-1). Writings of the OP No.1 in the prescription dated 12.06.10 are not legible.
Admittedly, the Complainant was admitted at R.N. Thakur Diagnostic and Medical Care Centre on 12.06.11 and discharged on 21.06.10. It is not mentioned in the discharge summary issued by R.N. Thakur Diagnostic and Medical Care Centre and signed by the OP No.1 about the date of operation done by the OP No.1 (Annexure-2). Annexure-3, Prescription dated 01.07.10, Annexure-4, prescriptions dated 11.07.10 and 21.07.10 and Annexure-5, prescriptions dated 17.11.10, 15.12.10, 01.01.11 and 23.01.11 reveal that the O.P. No.1 advised the Complainant to attend his chamber after one month. Annexure-6 issued by the R.N. Thakur Diagnostic Medical Care Centre dated 30.01.11 and signed by the OP No.1reveals that the patient was admitted on 27.01.11 and discharged on 30.01.11 and re-fixation of plate and bone grafting was done on 28.01.11. The patient was advised to attend the chamber after one month. Annexure-7 dated 04.02.12 is an advice for ex-ray of left elbow. There is no other advice for the patient by the OP No.1 dated 04.02.11. The Complainant went to the N.R.S Medical College and Hospital on 16.02.11 and there was clinical note in the OPD patient card that swelling around lower part of arm near elbow joint (L) and difficulty in movement and the Doctor opined non-union of shaped hums operated outside on 28.01.11.
It was also noted in the clinical note of the doctor at NRS Hospital dated 02.03.11 that pain gradually increasing in wound at left arm and elbow and as per ex-ray has noted inadequate bridging and advised for admission group ‘A’ WL on priority basis.
It appears from the discharge certificate and other treatment sheets issued by the N.R.S Medical College and Hospital that the patient was admitted on 06.04.11 and discharged on 29.04.11 and he was under treatment of the said Hospital till 20.02.12.
The Ld. Advocate for the OP No.1 has stressed much on the history of fall 10 days back as noted in the clinical notes dt.18.07.11 and it was specifically advised on 18.07.11 to avoid fall.
On a careful consideration over the materials on record, we find that the Complainant had reported a history of fall before the Doctor at N.R.S Medical College and Hospital. It is not clear whether the history of fall 10 days back was before duel column plating done on 12.04.11 or history of fall 10 days back is 10 days back from the date of clinical notes dt. 18.07.11?
The Complainant filed fourteen x-ray plates but out of the said fourteen ex-ray plated, only five ex-ray plates have dates and name of the Patient. The dates as mentioned in the said ex-ray plates are 09.04.11, 28.06.11, 26.05.11, 13.05.12, 14.07.12. Therefore, it cannot be said that the other ex-ray plates are the ex-ray plates of the Complainant . On going through the X-ray plate dt. 09.04.11 the O.P. No. 1 opined during his cross examination dt.01.10.15 that there was a gap between two broken bones.
It is clear from the submission of both sides that re-fixation of bones and bone grafting was done by the OP No.1 on 28.01 and 12.04.11 by the O.P. No.2 at N.R.S Medical College and Hospital and it is also clear from the submission of both sides and on perusal of materials on record that OP No.1 used the technique of single column plating for re-fixation and the O.P.No.2 at N.R.S Medical College and Hospital used duel column plating. The Ld. Advocate for the OP No.1 has asserted that the OP No.1 has opted for single column plating and it is accepted in medical procedure and the duel column plating system is more costly.
On a careful consideration, we find that single column plating and duel column plating both are accepted medical practices for the purpose of treatment for union of broken bones and duel column plating is more effective than single column plating. It is further clear from the materials on record that the Complainant was not satisfied with the treatment during the period from 12.06.10 to 04.02.11 for which he went to the N.R.S Medical College and Hospital on 16.02.11. The Complainant has no grievance against the treatment received at N.R.S Medical College and Hospital.
On going through the xerox copies of the prescriptions issued by the OP No.1, we find that the OP No.1 has not even noted that there was any improvement of the patient or the patient responded to the treatment given by the OP No.1. There is no diagnosis noted in the prescriptions issued by the O.P.No.1. With due regard to the decisions referred by the Ld. Advocate for the OP No.1, we think that the principles of those decisions are settled but none of the said decisions is helpful for the O.P. No.1. We find that the OP No.1 treated the Complainant in a very casual manner without even noting diagnosis in the prescriptions issued in favour of the Complainant. A medical practioner is duty bound to let the patient know about his/her ailment and to advise him/her accordingly on the basis of his diagnosis but the O.P.No. 1 is silent why he did not note anything in his prescriptions. We find that the OP No.1 has not noted his clinical examination of the patient and condition of the wound after operations. A patient comes to a Doctor for his/her advice and a medical practioner is duty bound to give proper advice according to medical norms and practice. In the present case, the Complainant used to come to the OP No.1 on several occasions and the OP No.1 operated the wound of the Complainant twice but he has not noted his clinical examination of the patient in his prescriptions. It cannot be understood on perusal of the prescriptions of the OP No.1 that there was any improvement of treatment of the patient during the period from 12.06.10 to 04.02.11. Unfortunately, the Complainant has failed to establish that other nine ex-ray plates are x-ray plates of the Complainant and it was during the period of treatment by the OP No.1.
Considering the facts and circumstances of the case and the entire materials, we think that the OP No.1 was negligent in treating the patient and there was deficiency in service. We think that the Complainant is entitled to get compensation of Rs.1,00,000/- for deficiency in service and medical negligence against the OP No.1. We also think that the Complainant is entitled to get cost of Rs.20,000/- against the O.P.No.1.
Reasons for delay
The Case was filed on 08.09.11 and admitted on 13.10.11 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders..
In the result, the Consumer case succeeds in part.
Fees paid are correct. Hence, it is
Ordered
that the complaint Case No. CC/103/2011 is hereby allowed on contest against the OP No.1 with cost of Rs.20,000/- and dismissed ex-parte against the OP No.2 without cost.
The OP No.1 is directed to pay compensation of Rs.1,00,000/- and Rs.20,000/- as cost of litigation to the Complainant by 60 days from the date of this order.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President.
Member President.
