District Consumer Disputes Redressal Forum
Dakshin Dinajpur, W. Bengal
(Old Sub-Jail Municipal Market Complex, 2nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)
Telefax: (03522)-270013
Present
Shri Sambhunath Chatterjee - President
Miss. Swapna Saha - Member
Shri Siddhartha Ganguli - Member
Consumer Complaint No. 12/2014
Smt. Sarathi Barman
W/o Sri Gobinda Barman
Vill.: Kismat Ramkrishnapur
PO: Chingispur, PS: Balurghat
Dist. Dakshin Dinajpur …………………Complainant(s)
V-E-R-S-U-S
1. Dr. Alok Kumar Maity, M.S. (Orthopedic)
Medical Officer, District Hospital, Balurghat,
Dist.: Dakshin Dinajpur
2. Superintendent,
Balurghat Poura Hospital & Matri Sadan
Under IPP-VIII (Extn.) Balurghat Municipality
PO & PS: Balurghat
Dist.: Dakshin Dinajpur. …………………Opposite Party / Parties
Ld. Advocate(s):
For complainant ……………… - Shri Nihar Roy & Shri Avijit Roy
For OP No. 1 ……………… - Shri Sushovan Chatterjee
For OP No. 2 ……………… - None
Date of Filing : 23.04.2014
Date of Disposal : 04.12.2015
Contd…P/2
Judgment & Order dt. 04.12.2015
Fact of the case in brief is that the complainant is a rustic poor village woman. While she was doing her domestic work, suddenly she fell down on the platform of the tubewell and sustained injury on her right forearm. In spite of receiving such injury she thought that she would be cured shortly but with the passing of the days’ she felt severe pain and her fingers had swollen then on 3.5.2010 she went to Balurghat for treatment and she was treated by the OP No.1 in his chamber. Despite detecting fracture injury OP No.1 neither operated the hand nor suggested for immediate operation. The OP No.1 prescribed some medicines but adverse effect of injury was increasing gradually. Finding no improvement the complainant again went to OP No.1 on 19.5.2010 and she was again treated by the OP No.1 who suggested some clinical tests and after perusing the report the OP No.1 disclosed that an operation has to be done and accordingly operation was conducted at private hospital and she was admitted on 22.5.2010 for operation and it was operated on 23.5.2010 and the complainant was released from the hospital on 27.5.2010.
Since, the operation was not successful the complainant had to be admitted to the hospital on or from 7.10.2010 to 9.10.2010 and she was treated by the OP No.1 and the complainant had to spend huge sum of money for purchasing of medicines. In spite of the treatment rendered by the OP No.1 the complainant did not get any relief but ultimately she went to Dr. Anindya Sarkar on 18.3.2014 and as per advice of Dr. A. Sarkar another operation was made and the complainant got some relief. Dr. A. Sarkar on perusal of the treatment rendered by OP No.1 and x-ray plate and opined that the implanted plate and screws of the forearm was not properly fixed for which the bone forearm could not be united and the complainant had to go 2nd time operation. The complainant had to bear expenses of Rs.40,000/- to Rs.50,000/- for the treatment.
Contd…P/3
Because of such wrong treatment rendered by the OP No.1, the complainant had suffered financial loss as well as mental agony for which the complainant has claimed a sum of Rs.7 lakh as compensation and Rs.50,000/- for defective operation etc.
The complainant subsequently filed an amendment petition which was allowed by this Forum and in the said amendment petition the effect of operation sustained by the complainant for the 2nd time was mentioned and it was stated that the complainant was admitted at Upasam Nursing Home Pvt. Ltd., Raiganj on 7.9.2014 and she admitted there on 6.9.2014 and discharged on 9.9.2014. The attending doctor removed bone from the left side waist and left side let of the complainant by surgery and set up the same on the right hand forearm. Since there was negligence on the part of the treatment by the OP No.1, the complainant had to undergo operation for the 2nd time.
The OP No.1 has contested the case by filing a written version denied all the material allegations made by the complainant in her complaint petition.
It was specifically stated by the OP No.1 that he applied his best medical service care treatment and advices to the patient. Since, the time of initial treatment till the end of the treatment rendered by the OP No.1. It was stated that the complainant fell on the ground by sustaining injury on her hand and she did not come to OP No.1 for treatment but she went to bone Kabiraj who applied bandage with the help of leaves over the affected arm that type leave extract caused local inflammatory action leading to destruction of the skin, some subcutaneous tissues and even bones of the complainant was affected due to all those destruction. After 2 months on 3.5.2010 the complainant came to the chamber of OP No.1 and removing the bandage and leave extract and found severe condition of right hand and by examining her doctor found the skin of right forearm was severely inflammated, suffering swelling of
Contd…P/4
right hand was found due to tied bandage by the local Kabiraj, as a result of which the forearm was deformed which had restricted movement of right elbow. In this situation, it was not possible to operate on the affected part of the hand and accordingly the OP No.1 doctor prescribed some antibiotics for reducing severity of the affected part of the hand. Accordingly, while the condition after 15 days it was found to some extent it improved the complainant was asked for facing operation and some tests were prescribed. Thereafter on 23.5.2010 operation was done by plates & screws added with the bone grafts taken from the right waist and thereafter the patient was released on 27.5.2010 with the advice that good quality of antibiotics, pain killer are to be taken by her but she expressed inability to purchase those medicines and she requested the doctor to supply those medicines by the Govt. Hospital. On the hearing the said plea of the complainant the OP No.1 told the complainant that there was no such provision for supply of medicines to the patient without getting admission in the hospital. On the request of the patient party the complainant was admitted to Balurghat District Hospital and from the hospital medicines provided to the patient was of poor quality for which the operated portion became affected.
The OP No.1 has stated that several factors influencing the fractured healing and among them the most important factors are mal-nutritional status, anemia, vitamins deficiency (A, C, D, K) type of bone soft tissues interposition, infection, metal allergy. The patient / complainant was malnourished, anemia, having vitamins deficiency, condition of the patient of soft tissues were very poor due to vigorous message by the Kabiraj and the application of leaves extract and the bone quality was also very poor due to rubbing on skin. The patient was treated the OP No.1 by the plates & screws made of stainless steel. In some cases it shows that there is erosion of bones underline plates and around the screws or cause of bone erosion by metal allergy is not known.
Contd…P/5
In this case the doctor decided to remove all implants plates & screws to eradicate the infection. Due to confession made by the complainant before the doctor that she had message of the affected limb with old Ghee with the belief that the bone infection will be stopped because of such applying of Ghee and vigorous message caused the loosening the screws & plates. To eliminate such infection all the implants were removed and asked the complainant for further operation after controlling the infection but this said advice was not adhered to by the complainant causing various complications to the complainant on affected limb. The disablement certificate does not disclose that due to faulty operation done by the OP No.1 the complainant had suffered such permanent disability and the complainant is also enjoying normal life by using such limb.
The OP No.1 stated in his written version that the 2nd time operation was rendered by Dr. Anindya Sarkar and he properly treated the patient and the complainant got the relief which the OP No.1 could have given to the complainant, if she would have followed the advices of OP No.1.
In view of such facts and circumstances of the above case the OP No.1 has prayed for dismissal of the case.
On the basis of the pleadings of the respective parties following points are to be decided :-
- Whether the complainant was treated by OP No.1- Dr. A. K. Maity?
- Whether the complainant started her treatment under the said doctor OP No.1 immediately after she sustained injury?
- Whether the OP No.1 took proper care and gave medial advices to the patient / complainant and took all sorts of necessary measures for treatment?
- Whether OP No.1 committed any medical negligence in treating the complainant?
- Was there any fault of the treatment of the complainant for which the complainant suffered permanent disability?
Contd…P/6
- Whether the said doctor is liable to compensate to the complainant for committing medical negligence?
- Whether the complainant will be entitled to get relief as prayed for?
DECISION WITH REASONS
Point Nos. 1 to 7:
The point nos. 1 to 7 are taken up together for the sake of brevity and avoidance of repetition of facts.
It is the case of the complainant that she met with an accident causing injury on 12.3.2010 and went to doctor on 3.5.2010 since the complainant had idea that the injury sustained by her would be normalized but whenever she found that the said injury become serious she went to the OP No.1 for treatment. The OP No.1 did not operate upon the complainant, on the contrary, he gave some medicines which did not give any relief to the complainant and further she visited the chamber of OP No.1 when he disclosed that it was an operative case and the OP No.1 asked the complainant to get admission in the private hospital and she was admitted there for surgery and the OP No.1 operated upon the complainant and the complainant was released on 27.5.2010 and the complainant paid all the charges as claimed by the OP No.1 and OP No.2. Even after the said operation the complainant did not get any relief and she again admitted to District Hospital and she had been several days. During the said period she had to spend lot of money.
It is the contention of the complainant that because of wrong treatment given by OP No.1 the complainant had to suffer and she had lost her strength of right hand and has become handicapped. The OP No.1treated the complainant till the 2013 and consumed medicines as prescribed by the OP No.1. Whenever she found that there was no chance of recovery the complainant went to another doctor namely Dr. Anindya Sarkar and after perusing the medical papers and also examining the operated hand Dr. A. Sarkar suggested for 2nd time
Contd…P/7
operation. It was emphasized by Ld. Lawyer for the complainant that on perusal of x-ray plate it was found that the plate & screw was not properly fixed for which the bone could not be united, because of such negligence act on the part of OP No.1 in treating the complainant. The complainant has suffered 60% disablement i.e. certificate to that effect was issued by the Government. Since, the complainant being a doctor failed to treat the complainant in proper way and due to medical negligence committed by him, the complainant has claimed the damage as well as expenses borne by her for the treatment given by the OP No.1.
Ld. Lawyer for the complainant in support of the contention of the complainant that medical negligence was committed by the OP No.1 relied on some decisions viz. 2010(1) CPR 319 NC, wherein it was held that applicability of the maxim res-ipsa loquitor is applicable in cases of medical negligence, even delegation of responsibility to another may amount to negligence in certain circumstances. Here in this case the OP No.2 – Hospital is also vicariously liable for making commission and omission by its doctors, para medical staffs, where they are employed on permanent basis or as contractual basis and as visiting doctors.
Ld. Lawyer for the complainant argued that here in this case it was found that screws & plates were not properly placed for which the bone was not united and if the said fact is proved it can be presumed that there was gross negligence on the part of OP No.1 and he must be guilty of medical negligence and the Ld. Lawyer on this point relied on a case in the Raj Choudhury vs L. L. Rathi Memorial Hospital wherein it was held that because of not properly fixing the plates & screws that the bone could not be united of the complainant and had to go for the 2nd operation. Doctor OP No.1 was held negligence in performing the operation.
Contd…P/8
Dr. OP No.1 would be held liable for negligence only where his conduct fell below that of standard of a reasonable competent doctor [2011 (2) CPR 2013 NC]. Ld. Lawyer emphasized that the treatment of patient by the doctor without confirming the diagnosis of disease and which ultimately proved fatal would amount to negligence on the part of doctor (Ram Avatar Chouhan vs Dr. Sajjan Kumar).
Relying on those decisions the Ld. Lawyer for the complainant argued that those ruling as cited herein above are applicable in this case and the medical treatment rendered by OP No.1, substantiated the claim by the complainant that there was gross negligence on the part of OP No.1 for which the OP No.1 is to be held guilty for medical negligence and huge cost is to be imposed upon him so that the complainant could get adequate compensation for the sufferance she has faced due to wrong treatment given by the doctor OP No.1.
Ld. Lawyer for the OP No.1 submitted that from the complainant’s case it is crystal clear that the accident took place on 12.3.2010 and the complainant went to OP No.1 on 3.5.2010 while there was such delay. During the intervening period a village Kabiraj treated the complainant with the help of leaves and tied the injury with bandage after putting some juice of some plants known as ‘Har Bhanga’ plants the bandage was done by the local Kabiraj in the affected forearm causing deformation and curved like a bow which was restricted for movement the right elbow. The underline skin condition was very poor and as such the OP No.1 was unable to make immediate operation over the affected limb. The tied bandage with hold of some leaves extract ‘har jorde’ over the right arm which caused severe inflammatory reaction leading to destruction to the skin subcutaneous tissues and even bones and thus the injury was affected from those destruction. In such circumstances, the complainant came to OP No.1 and doctor OP No.1 prescribed some medicines for healing the affected parts and prescribed some antibiotics to bring the damage condition in
Contd…P/9
order for operation. While after 15 days the complainant visited the chamber of doctor OP No.1 she was informed that she was required to be operated. Since the operation facilities are better in Matri Sadan than that of Balurghat District Hospital and accordingly operation was done at Matri Sadan at Balurghat by installing the plates & screws added with bone grafts taken from right waist. After operation some medicines were prescribed but since the complainant failed to purchase those medicines and on the request of the complainant she was admitted to Govt. Hospital for getting free antibiotics but the antibiotics provided not of good quality for which the patient suffered chronic osteomyelitis (infection of bones). The OP No.1 having seen the condition of the patient advised her for undergoing for another operation after controlling the infection but the complainant did not agree. Subsequently, the complainant went to Dr. A. Sarkar, Orthopedic Surgeon who treated her but Dr. A. Sarkar never stated that due to wrong operation done by OP No.1 the condition of the patient deteriorated. The complainant after undergoing operation for the first time went to her native place and started to massage the affected limb with old Ghee which deteriorated the condition of the injury and due to such pressure/ message applying on the affected part with the ghee caused loosening the plates & screws causing inflammation to the area.
Considering such backdrop of the follow up action made by the complainant without having any medical support or advice from the doctor caused damage to her affected part for which the OP No.1 cannot be held liable for not rendering medical treatment properly or there was any medical negligence on his part. Ld. Lawyer for the OP No.1 brought to the notice the catena of documents including the medical papers wherefrom it is evident that the doctor took all sorts of measure for proper treatment of the complainant and there was no deficiency in rendering medical service to the complainant. Accordingly,
Contd…P/10
Ld. Lawyer emphasized that at the instance of some touts / village people the case was filed against the OP No.1 and as such the same is to be dismissed.
Considering the submission of the respective parties it is an admitted fact that the complainant sustained injury on her right forearm on 12.3.2010. But she neglected the said injury she did not rush the hospital or to any doctor for the treatment. She underwent treatment of Kabiraj who bandaged the affected part with ‘har jorde’ plants juice causing inflammation to the affected part. From the materials on record it is found that the complainant went to doctor OP No.1 at his chamber on 3.5.2010 i.e. about 2 months after injury sustained by the complainant, while she found that the condition of the affected part was serious then she went to doctor OP No.1. Doctor OP No.1 on examining her on affected part found that the skin on the underline bone and the flesh are infected and he prescribed some medicines, which corroborates the facts that the doctor OP No.1 also advised the complainant for undergoing operation afterwards and he rightly refused to operate on the first day of her examining the patient and rightly deferred the operation since the condition of the affected part was serious and accordingly some medicines were prescribed and after recovery while the patient again came to the doctor, then OP No.1 advised for operation. It is also found from the materials on record that the operation was done at Matri Sadan Hospital instead of Govt. Hospital since the facilities for operation in Matri Sadan Hospital is much better than that of Govt. Hospital. It is an admitted fact that the operation was done and some plates & screws were inserted after grafting the bones from the right waist and the complainant after released from the Matri Sadan Hospital, while she went to her native place she applied old ghee message on the affected part causing the loosening all the plates & screws. While she sustained severe pain she again met doctor and the OP No.1 prescribed medicines and advised
Contd…P/11
her for another operation but she did not turn up. Immediately during convalescing period the doctor prescribed medicines but the complainant failed to purchase those high doses of antibiotics and vitamins and while she expressed her inability to purchase those costly medicines, as per advice of doctor OP No.1 she was again admitted to Govt. Hospital, free medicines supplied from the hospital which did not cure her properly. All the documents placed before this Forum corroborates the said fact.
It is pertinent to mention here in that the Dr. A. Sarkar of Raiganj operated upon the complainant on her affected part and she got relief but Dr. A. Sarkar in his medical prescription never mentioned that there was no any fault in the operation made by Dr. A. K. Maity- OP No.1. The complainant in order to prove the medical negligence on the part of OP No.1 no expert has been brought for examination to substantiate her claim that there was any medical negligence on the part of Dr. A. K. Maity.
The ruling cited on behalf of the complainant are not at all applicable in this case, since the facts and circumstances of the this case are totally different from this case.
So far as the materials on record are concerned it appears that the complainant was treated by OP No.1 in his chamber and after improving the condition of the injury the operation was done and subsequently she was released from Matri Sadan Hospital, she went to her native place and started the message the affected part with old ghee causing loosening all the plates & screws. Subsequently, whenever she visited the chamber of OP No.1, she was advised to take antibiotics of good quality but she failed to purchase the said quality medicines and she requested the doctor to provide antibiotics from the Govt. hospital wherefrom she expected that the free medicines would be provided to her and for that purpose OP No.1 took active part and
Contd…P/12
admitted to the complainant in the Govt. hospital but the medicines supplied by the hospital to the patient were not good quality and post operation cure was not taken properly for which the complainant had to suffer some infection for which the abnormality cropped up on seeing such abnormality, OP No.1 advised the complainant for undergoing another operation but she did not turn up and she went to Dr. A. Sarkar for better treatment wherein she was operated and she got relief. Nowhere in the prescription of Dr. A. Sarkar it appears that there was any mentioning of the fact that there was negligence on the part of doctor OP No.1 for treatment of his patient i.e. complainant. On perusal of the prescribed bed head ticket and other documents produced by the complainant it appears that the doctor OP No.1 took necessary steps for the treatment of the complainant and there was no laches or any negligence on his part i.e. because of wrong treatment rendered by doctor OP No.1 the patient / complainant suffered.
In this respect I must say that OP No.1 is attached to District Govt. Hospital and having degree of M.S. and even if for the sake of argument if it is found that there was ‘an error of judgment on the part of professional is also not negligence per se,’ was held in the case of Dr. Mahadev Prasad Kaushik vs State of UP, in Criminal appeal No. 1625 of 2008. The bench headed by Hon’ble Justices CK Thakker and DK Jain while quashing the prosecution initiated against a doctor, the bench explained, “The standard to be applied for judging whether a person charged has been negligent or not would be that often of an ordinary competent person exercising ordinary skill in that profession.” The court granted a breather to doctors, who, are living under the constant threat of being dragged to courts for “erroneous” treatment these days, are hounded by ambulance chasers, a category of lawyers who convince patients to file cases against any treatment “gone wrong”.
Contd…P/13
Hon’ble Supreme Court said, “Medical profession is often called upon to adopt a procedure which involves higher element of risk, but which a doctor honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow would depend on facts and circumstances of a given case.”
In the case of Indian Medical Institution vs. V.P. Shantha (1995, 6, SCC, 651) the Hon’ble Supreme Court approved a passage from Jackson and Powell on Professional Negligence and held that, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties.
It is well settled law as observed by the Hon’ble Apex Court in the case of Kusum Sharma and Ors. Vs. Batra Hospital 2010(1) CPJ 29 (SC) that –
“Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. Medical practitioner would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field.”
Since, the present case is based upon an allegation of deviation from ordinary professional practice, it is worth to refer Lord President Clyde in Scottish case Hunter v Hanley 1955 SC 200, wherein it has laid down the following requirements to be established by the patient to fasten liability in case of negligence committed by a doctor :
“To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it
Contd…P/14
must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course, the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three facts, and without all three, his case will fail.”
In the case Achutrao Haribhan Khodwa and Ors. V State of Maharashtra and Ors, the Hon’ble Supreme Court, held that :
“in the very nature of medical profession, skills differes from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of all ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him as acceptable to the medical profession.”
In the case of Kusum Sharma v Batra Hospital, laid down that :
Negligence cannot be attributed to a doctor so long as he perform his duties with a reasonable skill and competence. Merely because the doctor choose one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.”
On the basis of entire discussion, we do not find any deficiency or negligence on the part of OP No.1 and who treated the patient. It was the practice as per accepted standards norms.
Hence, it is
Contd…P/15
O R D E R E D
that the instant complaint petition CC No.12/2014 is hereby dismissed on contest against the OP No.1 and ex-parte against the OP No.2 without any cost. The parties are directed to bear their own costs.
Let a plain copy of this order be furnished to the parties forthwith free of cost.
Dictated & corrected
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(Sambhunath Chatterjee)
President
We concur,
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(S. Saha) (S. Ganguli)
Member Member
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