Date of Filing: 11.09.2014 Date of Final Order: 15.09.2017
Sri Asish Kumar Senapati, President
This is an application u/s 12 of the C.P. Act, 1986.
The complaint case in a nut shell is as follows :-
One Tarun Chakraborty (hereinafter referred as Complainant) went to Dr. Amlan Bhadra (hereinafter referred as OP No.1) on 09.03.2012 due to falling down from his Motor Cycle at Cooch Behar. After examination, the OP No.1 advised him to undergo External fixation for proper union of both bones in his right leg and accordingly, he got himself admitted at Shila Nursing Home & Diagnostics (hereinafter referred as OP No.2) and paid a package of Rs.75,000/- which included the cost of surgery, post operative care as also other expenditure. The surgery was performed on 09.03.2012 by Dr. Amlan Bhadra at OP No.2 Nursing Home, but due to negligence of Ops, pus was developed in the right leg and Complainant started experiencing severe pain though debridement was done on 15.03.2012. In spite of that, the condition of his right leg did not improve. As there was possibility of gangrene and amputation of leg, the Complainant left the OP No.2 Nursing Home on 20.03.2012. The OP No.2 received Rs.75,000/- and after receiving the said amount from the Complainant, they did not issue treatment sheet to the Complainant. On 20.06.2013, the Complainant sent a letter to the OP No.2 for obtaining whole treatment sheet including the case record of the Complainant (Annex. B). In spite of receiving the said letter, the OP No.2 did not respond. The Complainant rushed to Patna on 20.03.2012 for proper treatment and consulted Dr. J. Mukhopadhyay in the Popular Nursing Home at Patna and the Doctor had found the blood sugar level of the Complainant 369. The Complainant was indoor patient of Popular Nursing home from 21.03.2012 to 24.03.2012 and left Patna for Kolkata without surgery because of paucity of fund. On 26.03.2012, the Complainant went to Bhattacharyya Orthopedic & Related Research Centre Pvt. Ltd. at Kolkata and consulted Dr. Sailendra Bhattacharyya who also found uncontrolled blood sugar and infected wound. The Complainant got himself admitted in the said Research Centre on 26.03.2012 and remained there up to 30.04.2012. The Complainant further got admitted in the said Research Centre on 10.05.2012 and he was discharged on 11.05.2012. On 12.03.13, the said Research Centre issued a report which revealed that right leg of the Complainant was short about 1”. The Complainant was not fully recovered from the damage done to his right leg because of the first surgery by the OP No.1 at OP No.2 Nursing Home, which resulted 58% disability due to negligence of the Ops. The Op No.1 did not maintain professional ethics which tantamount to medical negligence and deficiency in service. The Complainant has claimed Rs.1 lakh for medical negligence and deficiency in service, Rs.3,78,161/- as miscellaneous expenses for treatment of the Complainant, Rs.5 lakh for mental pain and agony and other reliefs.
The OP No.1 and 2 put their appearance through Ld. Agents. The Op No.1 filed w/v on 05.01.2015 inter-alia denying the material allegations of the Complainant contending that the Complaint case is not maintainable against the OP No.1 and it is bad for defect of parties. It is the version of the OP No.1 that one Tarun Chakraborty was admitted under him at OP No.2 Nursing Home on 09.03.2012 with history of open fracture both bone on right leg. The condition of the patient at that time was critical and considering the nature of fracture and to protect the leg from the surgical point of view, an urgent operation was needed for reunion of the bones. Accordingly, he was advised for admission and operation. Accordingly, an operation was done and an external fixation done on 09.03.12 to protect the leg which was the only option left to the OP No.1 at that time to protect the injured bones. The operation was uneventful. On 15.03.2012, a debridement was done and the patient was under medication and treatment in the said Nursing Home till 20.03.2012 though the treatment required more time considering the nature of injuries but the patient party insisted the OP No.1 to discharge the patient. Accordingly, the patient was discharged on 20.03.2012 on the request of the patient party with some medical advice and prescription. The operation was done properly and the fixture was done rightly. The patient party took the patient at their own risk. The OP No.1 received Rs.10,000/- as his professional fees and it is false to say that a sum of Rs.75,000/- was charged towards package treatment. The OP No.1 is not concerned in any way about further treatment of the patient by any other Doctors. There is no negligence and carelessness on the part of the OP No.1. The Op No.1 has prayed for dismissal of the complaint.
The OP No.2 filed w/v on 08.05.2015 stating that the complaint case is not maintainable as there is no cause of action against OP No.2. The OP No.2 only arranged for OT, Cabin and beds along with other infrastructural support of its Nursing Home to the patient and treatment process and other medication were made as per direction and supervision of the Doctor. In the present case, everything was done as per direction and advice of OP No.1. The OP No.2 stated that it never received any amount without giving bill or receipt of payment to the patient party.
The Branch Manager, United India Insurance Co. Ltd., Cooch Behar was made a party as OP No.3 vide order dated 12.06.2015. It submitted its w/v on 07.08.2015 stating that OP No.3 has no knowledge of the fact of this case and it is not at all involved in the case. The OP No.3 has been wrongly added as a party. It is the version of the O.P. No. 3 that there is an insurance which covers only Indemnity for Professional Indemnity (Medical Establishments) policy subject to terms and conditions in the name of Shila Nursing Home but not in the name of Shilla Nursing Home & Diagnostics. The OP No.3 has got no liability to pay the compensation if any as because no such policy was ever issued in favour of OP No.2 by the Insurance Co. There was no negligence or deficiency in service on the part of OP No.3. So, the Complainant is not entitled to get any relief against OP No.3. The OP No.3 has prayed for expunging its name from this case.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.P Nos. 1&2 any medical negligence and/or deficiency in service, as alleged by the Complainant?
- Whether the Complainant is entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point Nos.1 & 2
Both the points are taken up together for the sake of convenience.
Ld. Agent for the Complainant submits that the Complainant is a consumer under the OP No.1 and 2 and this Forum has territorial and pecuniary jurisdiction to entertain the complaint. Ld. Agents for the Ops did not raise any objection on those points. On perusal of the written complaint, w/v, evidence on affidavit and the documents filed by both parties, we are of the considered view that the Complainant is a consumer under Section 2(1)(d)(ii) of the C.P. Act, 1986 and this Forum has both pecuniary and territorial jurisdiction to entertain the complaint. Both the points are thus disposed of in favour of the Complainant.
Point Nos.3 & 4
The Ld. Agent for the Complainant submits that the Complainant is a victim of medical negligence and deficiency in service. It was urged that the Complainant was brought to Dr. Amlan Bhadra (OP No.1) on 09.03.12 with a complaint of falling down from his Motor Cycle and after examination, the OP No.1 advised him to undergo External fixation for proper union of both bones in his right leg and accordingly, the Complainant got himself admitted in the OP No.2 and paid the OPs a package fee of Rs.75,000/-. He argued that OP No.1 informed the Complainant and his family members that operation was successful but the condition of the patient was deteriorated and the patient felt severe pain and ultimately, debridement was done on 15.03.12. It is contended that the Complainant left the Nursing Home on being discharged on 20.03.12 as there was no improvement and possibility of gangrene and amputation of right leg. He further argued that the family members of the Complainant took the Complainant to Popular Nursing Home at Patna on 20.03.12 and one Dr. J. Mukhopadhyay of Popular Nursing Home had made several tests and detected that blood sugar level of the patient was 369 and he was a indoor patient of the Nursing Home from 21.03.2012 to 24.03.2012 and came to Kolkata on 26.03.12 without surgery due to paucity of fund. He further argued that Complainant consulted with Dr. Sailendra Bhattacharya of Bhattacharya Orthopedic & Related Research Centre Pvt. Ltd. at Kolkata and had undergone several tests and Dr. Bhattacharyya diagnosed uncontrolled blood sugar and infected wound 5”X2” and explained treatment procedure. It is urged that the Complainant did not recover fully from the damage in right leg because of first surgery which resulted in 58% disability due to negligence of the Ops. The Ops did not take pre-operative and post-operative care for Ext. fixation of both bones in the right leg on 09.03.12. He draws our attention to a number of decisions reported in 2010(2)CCC 365(NS), [2013]CJ 15(N.C.), 2015(3) CPR 528(NC), 2012(2)CPR 52(NC), [2012] CJ 152 (N.C.), and [2015]CJ 674 (N.C.). He argued that the Complainant has claimed compensation and litigation cost for medical negligence and deficiency in service against the OP Nos. 1 & 2.
The Ld. Agent for the Op No.1 submitted that the Complainant was admitted at OP No.2 on 09.03.12 with history of open fracture both bone on right leg and considering the nature of fracture, OP No.1 advised for ext. fixation to protect the leg from the surgical point of view and it was accordingly done on 09.03.12 and pre-operative and post-operative condition of the patient was uneventful. He argued that the debridement was done on 15.03.12 and the patient was under medication and treatment in the said Nursing Home till 20.03.12 but the patient party was not satisfied with the treatment for which the patient was discharged on 20.03.12 with some medical advice and prescription. He argued that the OP No.1 had received only Rs.10,000/- as his professional fees and it is false to say that a sum of Rs.75,000/- was charged towards package treatment. It is further argued that OP No.1 was never negligent and there was no lack of care and skill or deficiency in service from the side of the OP No.1. He draws our attention to the decisions reported in 201594) CPR 25 (N.C.), 2016(1) CPR 9 (N.C.) and 2014(2) CPR 340 (N.C.) The Ld. Agent for the OP No.1 has prayed for disposal of the complaint with cost.
The Ld. Agent for the Op No.2 submitted that the OP No.2 had no negligence or deficiency in service as alleged by the Complainant. He argued that the Complainant was a patient under the OP No.1 and OP No.2 had taken no part in treating the patient except providing OT, Cabin, Bed and other infrastructural support. He further argued that the Complainant has filed the complaint case on false allegations and in case of any award against the OP No.2, the same is required to be indemnified/paid by the United India Insurance Co. Ltd. as the O.P.No.2 is covered under Professional Indemnity being Policy No.031902/46/11/32/00000655. He has prayed for dismissal of the case with cost.
The Ld. Agent for the Op No.3 submitted that the OP No.3 is a unnecessary party and the Complainant is not a consumer in the eye of law as per provision of the CP Act. He submitted that the Insurance Policy is in the name of Shilla Nursing Home but no Policy was issued in favour of Shilla Nursing Home & Diagnostics, so, the OP No.3 has got no liability to indemnify the liability of o.P.No.2, if any. The OP No.3 has prayed for dismissal of the complaint with cost.
We have gone through the written complaint, written version of the O.Ps, evidence on affidavit submitted by both sides and the documents filed by both parties.
Admittedly, the Complainant was brought to the O.P. No.1 at Shila Nursing Home & Diagnostics (O.P. No. 1) on 09/03/2012 with a history of falling down from motor cycle and the O.P. No.1 conducted operation in the right leg of the Complainant for proper union of both bones on that very day. Admittedly, debridement was done on 15/03/2012 by the O.P. No.1.
According to the version of the Complainant, the condition of his right leg was deteriorated, for which he left Shila Nursing Home on 20/03/2012 as there was possibility of gangrene and amputation of his right leg and paid nursing home bill of Rs.75,000/-. No bill of Shila Nursing Home has been filed by the Complainant to establish that he paid Rs.75,000/-. It is also not the case that the Complainant paid the amount without any bill. It is not believable that the Complainant paid any amount without any bill.
The patient history sheet as submitted by Shila Nursing Home revealed that the patient was brought by local people along with his brother one Arun Chakraborty with a history of fall from motor cycle but the patient could not remember the incident due to intoxicated stage with large open wound (4” X ½”) over medial aspect of right leg and compound fracture both bones profuse bleeding and the patient was alcoholic. It also appears from the treatment of the patient as noted in the reverse of the patient history sheet that the doctor advised for preparation of emergency External Fixation. According to the O.P. No.1, the wound of the patient was type (III) wound as noted in the continuation sheet dated 09/03/2012 submitted by O.P.No.2.
It is the allegation of the Complainant that the O.P. No.1 & 2 did not take proper precautions before and after operation and the O.Ps did not measure the blood sugar of the patient before or after the operation resulting future complications and the blood sugar (R) of the patient as noted in the patient follow up record dated 26/03/2012 by Bhattacharya Orthopedics and Related Research Centre (P) Ltd. was 396. The blood sugar (R) as noted in the relevant chart of B.P, pulse and blood sugar maintained by Shila Nursing Home was 118 at 5.30 p.m. on 09/03/2012. It is the defence of the O.P. No.1 that he took note of blood sugar (R) of the patient before external fixation and found it was normal and he had only option to do external fixation for reunion of both bones.
There is no doubt that external fixation was necessary for reunion of bones of the Complainant on 09/03/2012 and after external fixation the next step i.e. debridement was done on 15/03/2012 by the O.P. No.1. The Complainant alleged medical negligence of the O.Ps on the ground that no precautionary measure to control blood sugar was taken before or after the operation by the O.P.Nos.1&2 resulting treatment of the Complainant at different centres and ultimately suffered 58% disability as per Annexure-H. The Complainant also asserted that the O.P. No.2 did not deliver medical papers in spite of written request dated 17/06/2013 (Annexure-B).
The Shila Nursing Home noted blood sugar (R) 115 on 09/03/2012 at 5.30 p.m. but Bhattacharya Orthopedics and Related Research Centre (P) Ltd. noted blood sugar (R) 396 on 21/03/2012 and Popular Nursing Home noted blood sugar 369 on 21/03/2012. Sudden rise of blood sugar is not uncommon and the Complainant has not produced any document to establish that sudden rise of blood sugar from 115 to 396 within a period of 12 days is not possible.
We have gone through the decisions referred by the ld. Agent for the Complainant. In the decision reported in 2010(2) CCC 365 (NS) the Hon’ble Apex Court has been pleased to hold that “in a case where negligence is evident, the principle of res-ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the Respondent to prove that he has taken care and done his duty to repel the charge of negligence”.
In the present case there was no history of blood sugar at the time of admission of the Complainant at O.P. No. 2 under O.P. No.1 and Blood Sugar (R) as noted in the chart maintained by O.P. No. 2 was 118 and the O.P. No.1 performed the emergency Ext. Fixation which was the only option to protect the leg of the complainant. With due regard to the above decision, we are of the view that the said decision is not helpful for the Complainant.
On a careful consideration over the other decisions as referred by the Ld. Agent for the Complainant, we are unable to ignore the principles of the decisions but none of the decisions is of any help to success of the Complainant case.
We have also gone through the decisions as referred by the Ld. Agent for the O.Ps and the principles of those decisions are settled principles. we are of the considered view that the O.P. No.1 had used his best performance, skill and knowledge and took due care and caution to treat the Complainant and the treatment chosen by the O.P. No.1 is an accepted practice. Therefore, we hold that the O.P. No.1 is not liable for any medical negligence or deficiency in service.
The Complainant has asserted that Shila Nursing Home did not supply medical papers in spite of written request sent by post on 17/02/2013 (Annexure-B) and it is nothing but deficiency in service.
Para-2 of Annexure-B is self contradictory. The Complainant stated in Para 2 that he was admitted at Shila Nursing Home on 13/03/2012 and remained there from 07/05/2011 to 14/05/2011 which was absurd.
The Complainant had not claimed medical papers for his treatment at Shila Nursing Home from 09/03/2012 to 20/03/2012. Therefore, allegation of the Complainant regarding non-supply of medical papers by the O.P. No.2 in spite of written request (Annexure-B) is baseless.
No relief has been claimed against the O.P.No.3 and there is no consumer dispute between the complainant and the O.P. No. 3. So, we find no necessity to discuss as to whether the O.P. No. 3 has any obligation to indemnify the liability of O.P.No.2.
On the basis of the above discussion, we are constrained to hold that the Complainant has failed to establish any medical negligence or deficiency in service against the O.P. Nos. 1& 2.
Reasons for delay : The complaint case was filed on 11.09.14 and admitted on 16.09.14. This Forum has taken endeavour to dispose of the case as expeditiously as possible as per Section 13(3A) of the C.P. Act, 1986 and the day to day orders will speak for itself.
In the result, the complaint case fails.
Fees paid are correct.
Hence,
It is , Ordered
That the complaint case be and the same is hereby dismissed on contest against the O.Ps without any cost.
Let plain copy of this order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action as per rules. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
