BY - SRI ASISH DEB, PRESIDENT
The brief factual matrix leading to the complainant’s case is that the complainant is the permanent inhabitant of the above mentioned address. The O.P. 01 is the Orthopedic Doctor of the Capital Clinic & Nurshing Home at Padumbasan, Ward No.-11, P.O. & P.S.- Tamluk, Dist. Purba Medinipur (op-2) and also doctor of Purba Medinipur Dist. Hospital at Tamluk. O.P. 2 is the nursing home at the above address where the Complainant was treated by Dr. B. Sarkar. The Complainant had been injured due to road traffic accident on 19.09.2017. He was admitted in the said nursing home on 19.09.2017 and got discharged on 24.09.2017. He was treated by Dr. B. Sarkar . The Complainant’s right leg had been badly Fractured (Rt. Tibia and Fibula) Dr. B. Sarkar Operated the Rt. Leg of the Complainant and inserted plate and nail on his leg and gave some medicine. After a few days later i.e. on 05.10.2017 and on 26.12.2017 the complainant went to the said doctor and told that he was feeling continuous pain and white Fluid and blood was coming from the wound area and operation area. Then doctor told that it would be fully cured after 6 months when Iron Plate and Nail would be removed from leg by Operation. The complainant felt very nervous and mental anxiety as there was no remedy from the said doctor. Then the complainant went to Care hospital at Bhubaneswar on 31.03.2018 for better treatment. The doctor of this Hospital treated and operated the complainant. The doctor told the complainant that the cause of bleeding and coming up white fluid was due to infected nail and bad quality of nail and plate. There after the Complainant went to Sabhabrata Super Specialist Hospital and Diagnostic Centre Pvt. Ltd. at Bazarpara, Uluberia on 08.04.2018. The doctor Ananda Mondal also told that the cause of infection was due to infected nail and bad quality of nail and due to neglecting treatment. For better treatment the Complainant went to Vydehi Institute of Medical Sciences and Research Centre at Bangalore on 11.05.2018 and his treatment is going on. In these circumstances, the Complainant incurred huge Amount of money for his treatment. Due to wrong and Careless treatment of Dr. Bhajan Sarkar and using bad quality and Nail the Complainant is facing great monetary loss and mental shock incurred huge amount treatment cost. So the complainant prayed for Compensation of Rs. 9,00,000/- for medical negligence ,litigation Cost of Rs. 50,00.00/- Total Rs. 9,50,000/- (Nine Lakh Fifty Thousand Only)from the op.
Upon notice the opposite parties filed their written versions and denied the allegations of wrong and neglecting treatment. According to them on 19.09.2017 the complainant came to O.P. No.1 in injured condition i.e., right leg had been badly fractured due to road traffic accident at Bagnan and the complainant firstly got treated at Bagnan Rural Hospital, Bagnan, Howrah. Thereafter the complainant came to the chamber of O.P. No.1 and after examining the patient op-1 advised for some clinical examination which will reflect in the prescription of O.P. No.1 dated 19.09.2017. The O.P. No.1 after examining the complainant advised to do X-Ray and other clinical examination to know the actual injury of the patient. That after proper investigation it is found that the complainant’s right TIBIA & FIBULA was fractured and it is required to do operation of the patient at right leg for quick recovery. All relevant pre operative investigation was done before completion of operation. On the same day i.e. 19.09.2017 the complainant was admitted at CAPITAL Clinic & Nursing Home of the choice of the complainant and the operation was completed on 21.09.2017 and the fracture was reduced by locking nail, and as such the desired objectives of the surgery was met. Post operative recovery of the patient was satisfactory and the patient was released from the nursing home on 21.09.2017 with full satisfaction and no objection remarks and signature was made on discharge certificate, bed head ticket and feedback form. Thereafter your O.P. No.1 further assured on 05.10.2017 and 26.10.2017 the complainant that it would be fully healed after 11/2-2 years when interlocking nail would be removed from the right leg by operation. But it is regret to say that the complainant is very non co-operative because after operation first time i.e. on 05.10.2017 when the complainant came to your O.P. No.1 for check up O.P. no. 1 advised the complainant for MRI on right leg but the complainant denied to do that. Thereafter on 26.12.2017 when complainant came to O.P. No.1 for routine check up then O.P. No.1 advised to examine CPR and X-Ray but the complainant did not follow the advice (Annexure A & B). He Consulted otherwise and all of them advised the same. In all prescription of other doctors also there is no indication and mention about wrong operation and setting of infected nail. Prescriptions are enclose herewith for disproof the allegation of the complainant. The doctor of CARE Hospitals Bhubaneswar did not opine due to negligence of O.P. No.1 infection of nail was caused. The complainant was operated by the doctor of Vydehi Institute of Medical Science & research Centre to remove the metal nail but no other complication was mentioned. The Prescription Forms do not opine that due to negligence of O.P. no.1 nail was infected. It is quite natural after fracture bone joints properly then metal nail is required to be removed from human body. The patient being misguided has brought this case without any sufficient cause . Moreover, all precautions ,all ethics and norms have been properly maintained in performing the operation and in rendering the service and there was no negligence on the part of the O.P. No.1 so also the nursing home authority. As per CAMPBEL’S OPERATIVE ORTHOPEDICS TWELFTH EDITION textbook studied published in the 1970s and 1980 reported unacceptedbly high infection rates (13.6% to 33%) in small series of open tibial fractures treated with nailing ……All infections resolved with no chronic osteomyelities page 2650-2651 enclose herewith . Annexture). As per DD TANNA textbook of Interlocking Nailing Second Edition it is mentioned that “there is no treatment like wait and watch with higher antibiotics once infection is suspected even without the proof of its existence…” and on the same book it is mentioned that “ the fracture proceeds to healing in spite of lo-grade infection. Sinuses will close down after removal of the nail page 57 enclose herewith. (Annexture). Endogenous (from patient’s own body) source is one of the important cause of infected nail including nasal carrier. ( Panikar’s text book of Microbiology 8th edition page 362) In the post operative period at home if port site get direct contact with soil or contaminated water (tap or pond) there may be port site infection it is important in this case because there was a large gap of time between the operation and the port site infection. Journal of Microbiology (sept-2013) shows that “patients with NYM (Atypical Mycobacterium ) disease may have acquired their infection from water sources in the home” “41% of patients having. A Typical Mycobacterial infection having the same DNA finger print as Atypical Mycobactium (NTM) isolate from their house hold plumbing “. (EMERGING INFECTIONS DISEASE – March 2011, 17(3) page 419-424). The Complainant did not produce all relevant medical treatment sheet before the commission to keep in doubt about the treatment by O.P. No. 1. In view of the Reported Medical Journal Published in India it can be observed that O.P. No.1 maintained all precautions, ethics and norms properly to perform the operation and rendering the service ; and no negligence was caused on the part of the O.P. no.1 so also the nursing home authority. Being harassed for no cause of action, O.P. No.1 demands Rs. 1,00,000/- for harassment and amputating his good will .
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
Heard arguments of the Learned Counsel for both parties. We gave our thoughtful consideration to the arguments from both sides. We have carefully perused and assessed the affidavit of the complainant, written version filed by ops, evidence of both parties, other documents and medical literature on the subject as referred.
Having regards had to the facts and circumstances of the case and other materials on record, it appears that the instant case is maintainable in its present form and in law.
Coming to the examination-in chief on affidavit of complainant it appears that he stated that he was treated by Dr. B. Sarkar as he met a road traffic accident on 19.09.2017. He was admitted in the op-2 nursing home on 19.09.2017 His right leg had been badly Fractured (Rt. Tibia and Fibula) Dr. B. Sarkar Operated his Rt. Leg and inserted plate and nail on his leg and gave some medicine and got discharged on 24.09.2017. After few days later i.e. on 05.10.2017 and on 26.12.2017 the complainant went to the said doctor and told that he was feeling continuous pain and white Fluid and blood was coming from the wound area and operation area. Then doctor told that it would be fully cured after 6 months when Iron Plate and Nail would be removed from leg by Operation. The complainant felt very nervous and mental anxiety as there was no remedy from the said doctor. Then the complainant went to Care hospital at Bhubaneswar on 31.03.2018 for better treatment. The doctor of that Hospital treated and operated the complainant. The doctor told the complainant that the cause of bleeding and coming up white fluid was due to infected nail and bad quality of nail and plate. rom the above statement the complainant wants to convince that there are elements of acts of negligence on the part of the ops. But the complainant has not adduced any cogent evidence or expert medical opinion to the effect that the iron plate and the nail were of bad quality and the alleged infection was caused due to the negligence of the ops.
Having regards had to the relevant medical literature and the evidence and the facts and circumstances of the case it is evident that the op-1 is qualified and experienced Orthopedician followed the accepted standard method to treat the fractured right TIBIA & FIBULA .
Now, on careful analysis of the evidence on record we have noted the chronology of the entire treatment particularly the treatment and service rendered by the ops. On 19.09.2017 the complainant came to O.P. No.1 in injured condition i.e., right leg had been badly fractured due to road traffic accident at Bagnan and the complainant firstly got treated at Bagnan Rural Hospital, Bagnan, Howrah. Thereafter the complainant came to the chamber of O.P. No.1 and after examining the patient op-1 advised for some clinical examination which will reflect in the prescription of O.P. No.1 dated 19.09.2017. The O.P. No.1 after examining the complainant advised to do X-Ray and other clinical examination to know the actual injury of the patient. That after proper investigation it is found that the complainant’s right TIBIA & FIBULA was fractured and it was required to do operation of the patient at right leg for quick recovery. All relevant pre operative investigation was done before completion of operation. On the same day i.e. 19.09.2017 the complainant was admitted at CAPITAL Clinic & Nursing Home and the operation was completed on 21.09.2017 and the fracture was reduced by locking nail, and as such the desired objectives of the surgery was met.
The mode of treatment and skill differ from doctor to doctor. The doctor is not liable for negligence if he performs his duty with reasonableness and with due care. In the case. Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others, IV(2006) CPJ 8 (SC)= 1996 (SLT Soft
) 1000=(1996) 2 SCC 634, the Hon’ble Supreme Court held that: “ The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he had performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if he patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”
In the instant case the primary duty of OP-1 was to operate the wound and fixation nail and plate which he performed with reasonable care. The operation was completed on 21.09.2017 and the fracture was reduced by locking nail, and as such the desired objectives of the surgery was met. Based on the entire treatment records and the evidence of the parties, in our considered view the Op-1 treated leg injury of the patient as an accepted line of treatment. Further literature suggests Endogenous (from patient’s own body) source is one of the important cause of infected nail including nasal carrier. ( Panikar’s text book of Microbiology 8th edition page 362) In the post operative period at home if port site get direct contact with soil or contaminated water (tap or pond) there may be port site infection. We do not find any fault with the operation or treatment given by Op-1. The chance of sufferings of patient due to wound infection caused due to his home surrounding situation as indicated in the literature can not be brushed aside. On 05.10.2017 when the complainant came to O.P. No.1 for check up O.P. no. 1 advised the complainant for MRI on right leg. Thereafter on 26.12.2017 when complainant came to O.P. No.1 for routine check up then O.P. No.1 advised to examine CPR and X-Ray but the complainant did not follow the advice (Annexure A & B). He did not follow the post discharge instructions of Op-1 .properly. In the light of the foregoing discussion, we find that there was no negligence while performing the fracture operation by ops .The complainant has failed to establish the elements of medical negligence against the ops. Thus, he is not entitled to get the reliefs as prayed for.
Both the points are decided accordingly. Resultantly, the complaint case fails.
Hence, it is
O R D E R E D
That the CC/368 of 2018 be and the same is dismissed on contest against the Opposite parties, however without any order as to costs.
Let a copy of the judgment be supplied to each of the complainant and the OP s free of cost.
