This appeal is directed against the judgement and final order dated 15.09.2017 of Ld. DCDRF, Cooch Behar in CC. No. 61 of 2014.

The case is short is that the appellant Tarun Chakraborty registered the consumer complaint U/S 12 of CP Act, 1986 on 11.09.2014 to the effect that he 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 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 at 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 puts 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.

Ld. Forum after conclusion of the process of hearing came to a conclusion that the complainant has failed to established any medical negligence or deficiency of service on the part of the OP’s and the complainant was dismissed having no merit.

Being aggrieved with this order of Ld. Forum this appeal was registered before Hon’ble SCDRC, at Kolkata Bench. Subsequently it was reassigned here.

After admission of appeal, the respondents have recorded that presence and they were (respondent 1 & 2) represented by Ld. Advocate S. Choudhary before this bench.

On the part of the appellant, Ld. Advocate Mr. Snelanabis was appointed and before this bench, Ld. Advocate Mr. R. Dey has represented the appellant.

                                                       Decision with reason: -

Admitted position is that the appellant due to motor cycle accident received severe injury in his right leg and got admitted at Shila Nursing home under the care of Dr. A. Bhadra(orthopedic) where he had to undergo external fixation for proper union of bones in this right leg. The appellant left the said nursing home at his own risk on 20.03.2012. There after he was admitted at a Patna Nursing Home from 21.03.2012 to 24.04.2012. At last, he was treated in Kolkata in a reputed orthopedic center for couple of days and after the accident and surgery he has become partially disable to 58%.

It is contented on the part of the appellant that due to negligence of respondents/opposite parties soon after the operation pus developed in the right leg and the appellant/complainant started experience severe pain and agony. The Debridement done on 15.03.2012 but the condition of Right leg further deteriorated and because of that there was a possibility of gangrene which could have resulted in amputation of his right leg. The appellant/ complainant left respondents/opposite parties Nursing home on 20.03.2012.

 On 21.03.2012, the appellant consulted with Dr. J. Mukhopadhyay, in the POPULAR NURSING HOME at Patna and the said doctors had to undergo several tests and detected that Blood Sugar Range at 369, and the appellant got admitted in the said Nursing Home on the same day for reviving from acute pain and proper union of the both bone in his Right leg i.e. surgical site and he remained in the said Nursing Home from 21.03.2014 to 24.03.2014, but because of paucity of funds, the appellant came back to Kolkata on 26.03.2012, without surgery.

On 26.03.2012 the appellant went to the BHATTACHARYYA ORTHOPAEDICS & RELATED RESEARCH CENTRE (P) LIMITED in Kolkata for reviving from acute pain and proper union of the bone in his Right leg i.e., surgical site. That on 26.03.2012. The appellant consulted with Dr. Sailendra Bhattacharyya and the said doctor had to undergo several tests and diagnosis that "Uncontrolled Blood Sugar" and "Infected wound5" x 2" and also explained treatment procedure i.e., 1st Stage Debridement Readjustment of Ex. Fixator frame, then would coverage by cross leg flap. Next stage according to wound condition Pixation by ilizaron Ring fixator with bone transfer.

That on 26.03.2012, the appellant got admitted in the BHATTACHARYYA ORTHOPAEDICS & RELATED RESEARCH CENTRE (P) LIMITED in Kolkata to save his life. Dr. S. Bhattacharyya, Dr. S. Dutta and Dr. S. Mukherjee performed the following surgery:

                            On 28.03.2012 - Debridement + Gross Leg flap (sural artery flap) done.

                            On 10.04.2014 - Partial release of cross flap done.

                            On 16.04.2012- Debridement + of Flap + SSG over doner area + Reattachment of flap

                                                         atreceient area.

                            On 18.04.2012 - Debridement + Ex. Fixator (Right) leg done.

                            On 27.04.2012 - Readjustment of Ex. Fixator +Debridement & Dressing done. and after surgery the appellant had to endure a great deal of pain as well as expenditure of his treatment. The appellant remained in the said Nursing Home from 26.03.2012 to 30.04.2012.

Ld. Advocate of the respondent countered the appeal by canvassing the arguments that almost all medical malpractices required Medical Expert Testimony. Without it the, Judge will dismiss the case or decides the case early. This is because the court have decided that the technical Information the jury must consider in a Medical Malpractice case is too complicated to sort through without help. The Jury is not required to adopt the Expert's options, but must use it to consider the facts in some special cases like the present case which has ample of loopholes to justify the actual velocity of negligence.

In Medical Experts Testimony which is required in special case as the Medical Experts will address the two questions central to any medical malpractice case:

   •    Did the doctor follow the standard care for doctors in the same position?

   •    Did the doctor's failure to follow the standard of care injured the patient?

After hearing both sides it is revealed that just after the accident the complainant was required to have a surgery of his right leg for reunion of bones which was done on 09.03.2012 and he was admitted in the said nursing home till 20.03.2012.

But in spite of his surgery, he was feeling severe pain in his wounded post operative leg. So, he then and there want for Patna and there after got admitted at Bhattacharya orthopedic center at Kolkata for a month as the re-surgery was necessitated.

Now the question is, why re-surgery was necessitated. Certainly, the complainant out of his passion or choice did not opt to visit or travel more then 600 km. Path way. He want for better management of treatment of his post operation right leg to Patna and Kolkata, from Cooch Behar.

So, in a straight way, the Ld. Forum had no occasion to hold that there was no medical negligence and deficiency of service on the part of respondent No 1 & 2.

Ld. Forum also did not opt the process in recording evidences and also did not take any attempt to obtain an expert opinion to resolved the dispute in a judicious manner.

So, the findings and observation and the process adopted of by the Ld. Forum appeared to be haste, mechanical and contrary to the established judicial procedure.

Thereafter, the appellant has got some merits in his appeal.

                                                              Hance it is ordered,

That the instant appeal be and the same is hereby allowed on contest without any cost.

The impugned Judgement challenged in appeal dated 15.09.2017 delivered by Ld. DCDRF, Cooch Behar in CC No. 61 of 2014 stands set aside.

The Ld. Forum is requested to re-open the case, give opportunities to place oral and further documentary evidences from all sides and also shall obtain an expert opinion by reference and thereafter adjudicate the dispute as early as possible as the case is very old one. Let a copy of this order be supplied to the parties free of cost and be communicated to the Ld. Forum.

Both sides are asked to appear before the Ld. Forum on 19.10.2022 for fixing a fresh schedule.