Minakshi Chakraborty, Presiding Member.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that on 8.3.2015 when the complainant meet with one accident in her residence while she was working in her title shaded room and as a result of that accident she caused fractured in her right wrist and she felt sever pain and went to DR. Sumit Rakshit for treatment and the doctor advised her for first aid treatment for remission of pain by giving some medicine and on 10.3.2015 the complainant met the opposite party no. 1 for treatment on payment of proper fees at his chamber and the opposite party no. 1 advised her some medical test for proper diagnosis and on his advice she was admitted at the hospital (herein opposite party no. 2) and on 11.3.2015 the- complainant underwent an operation on her right wrist and steel plate was placed therein and the petitioner was discharged therefrom on 14.03.2015.
The petitioner met O.P. No. 1 on several occasions thereafter and on his advice the petitioner continued some medicines without any fruitful results. Being further advised on 06.04.2015 the petitioner underwent treatment by physiotherapist for a period of one and half months.
Having found no improvement the petitioner visited Dr. G. Ghosh on 12.05.2015 who also advised the petitioner to undergo physiotherapy at Medical College Hospital, Kolkata but the petitioner instead underwent and physiotherapy for about six months to one Milan Mukherjee which also resulted in vain.
Next the petitioner visited Khotari Medical Hospital, Kolkata which also could not fulfill the desire of the petitioner.
On the basis of the facts and circumstances the petitioner submits that she has lost her working capacity in her right hand due to negligent acts of the opposite parties numbers 1 & 2 which gives rise to the instant proceeding claiming reliefs specified therein.
Both the O.P. Nos. 1 & 2 contest the case by filing separate objections and also by submission of separate interrogatories and reply thereto denying therein the allegations leveled against them separately.
points for consideration
- Whether the complainant is the consumer as defined in The Consumer Protection Act?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the present proceeding?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get any relief?
DECISION WITH REASONS
Issue No. 1
- In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, in view of his hiring medical services from the O.Ps.
Issue No. 2
- Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that the same does not exceed Rs.20,00,000/-. So, this Forum has territorial/pecuniary jurisdiction to entertain the instant proceeding.
Issue Nos. 3 & 4
The initial point to be disposed of herein is whether medical negligence stands in favour of Smt. Sabita Jana, the petitioner in this case. It has been alleged by the petitioner that Dr. Ajoy Kumar, M.B.B.S, M.S (Orthopedic), whom the petitioner approached first for medical treatment failed and neglected her medical treatment which was required for her treatment.
Paragraph 2 of the petition specifically states that on 08.03.2015 the petitioner met with one accident in her residence while she was working in her tile – shaded room as a result of which she got fracture in her right wrist. This led her to approach Dr. Ajoy Kumar (to be addressed as O.P No. 1 hereinafter) on 10.03.2015 who advised some medical tests for diagnosis. The petitioner, being advised was admitted in Bhadreswar Municipal Hospital, named and styled as Ankur (to be addressed as O.P. no. 2 hereinafter) where O.P no 1 made operation of the petitioner “in her right wrist and placed steel plate in that place”.
According to the petitioner she approached the O.P no. 1 several times as there was no improvement relating to her ailment inspite of using deferent drugs as suggested by O.P. No. 1. Being advised by O.P. No. 1 the petitioner underwent treatment by a physiotherapist for a period of about one – and - half months which also did not produce any fruitful results. Finding no other alternative the petitioner went to Dr. G. Ghosh at West Bank Hospital who, after proper treatment, advised the petitioner to cause physiotherapy at Medical College Hospital, Kolkata.Instead, the petitioner underwent hand physiotherapy by one Milon Mukhopadhyay, a Govt. approved physiotherapist from 21.05.2015 to 29.11.2015. Thereafter the petitioner continued her treatment with many eminent doctors for recovery but in vain. At last the petitioner went to Khotari Medical Hospital for treatment which also yielded no fruitful results.
The above facts and circumstances give rise to the present petition praying therein some reliefs as mentioned in the present case.
The Commission has made a scrutiny of all the documents filed by the petitioner mentioned in the firisty dated 04.05.2016 and it appears that the petitioner has filed one medical certificate said to have been issue by Dr. G. Ghosh in favour of the present petitioner, a perusal of which does not disclose any date therein. This Commission has made scrutiny of the written version of the O.P no. 1 and it appears that page 3 specifically referred to the opinion of Dr. M. S. Ghosh, the most eminent senior Orthopedic doctor wherein it appears that the prescription in its item no. 6 refers to the “ fracture is united”.
The O.P. No. 1 in his written version at page 2 in para 7 (a) has specifically stated that he has chosen best internal fixation (locking volar plate fixation for the type of fracture of the petitioner). Now this Commission feels necessary to mention what is volar plate fixation; it means volar plating is indicated in nearly all unstable fractures of the distal radius. It is use in young and active patients for optimal reconstruction of the articular surface and restoration of bony anatomy while allowing nearly immediate, but protected, active range of motion which is the best method applicable in present days (google).
It further appears that the O.P. advised long term physiotherapy (1- 2 yrs) and active exercise by patient. On scrutiny of the record it appears that the petitioner underwent physiotherapy for about six months only as has been admitted by her at page 4 paragraph 10 of the petition of complaint. This frank admission 0f the petitioner manifests a sheer negligence on her part. On scrutiny of the record in its entirety it appears that all the doctors suggested continued physiotherapy which the petitioner has neglected to do the same.
Now the pertinent point to be discussed herein is whether there is any “medical negligence” on the part of the O.P. Nos. 1 & 2. At the very outset it may be mentioned that mere taking admission under O.P. No. 2 dose not in any way makes it liable for the present allegation. So, this Commission is concerned with O.P. No. 1 only. The term “negligence” means a breach of duty and is an essential ingredient of the offence the negligence to be established by the prosecution must be culpable and gross of the medical professional. Herein the O.P. no. 1 exercised reasonable degree of skill and knowledge and also exercised reasonable degree of care. In the instant proceeding all the documents submitted by the petitioner mention about taking steps for physiotherapy for a long term which the petitioner appears to have neglected to do so absolutely referred to hereinabove.
It further appears that O.P. No. 1 has performed his duties with reasonable skill and competence and this Commission has reason to hold that the O.P. no. 1 is entitled to get protection as he has performed his duty with reasonable skill and competence in the interest of the petitioner.
On scrutiny of the documents filed by the petitioner dated 04.05.2016 there appears no doubt that the O.P. No.1 took reasonable care in respect of the petitioner; at the same time, no evidence has come on record which in any manner could demonstrate medical negligence of follow up care on the part of the treating doctors.
Accordingly, this Commission is of considered opinion that there no fault of treatment of the petitioner by the O.P. No. 1 and as a result this petition is without any substance and deserves to be dismissed.
Hence,
ordered
that the complaint case no. 58 of 2016 be and the same stands dismissed with no order as to cost.
