DATE OF FILING : 13-07-2011..
DATE OF S/R : 02-02-2012.
DATE OF FINAL ORDER : 10-07-2012.
Smt. Kakali Chowdhury,
wife of Gouranga Chowdhury,
Village – Fuleswar, P.S. Uluberia,
District –Howrah--------------------------------------------------------------- COMPLAINANT.
- Versus -
1. Dr. Bhaskar Chatterjee,
Consultant Orthopedic Surgeon & Traumatoligist,
attending doctor of ‘Treatwell Nursing Home’
situated at Uluberia Station Road ( South ), P.S. Uluberia,
District – Howrah, also having chamber at ‘New Jivandeep Nursing Home’,
situated at Bazarpara, P.S. Uluberia,
District – Howrah.
2. Treatwell Nursing Home,
situated at Uluberia Station Road ( South ), P.S,. Uluberia,
District – Howrah.
3. Sri Kalyan Chatterjee,
claiming himself to be the owner of
‘Treating Nursing Home’
situated at Uluberia Station Road ( South ), P.S. Uluberia,
District – Howrah.------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Smt. Samiksha Bhattacharya.
Member : Shri P.K. Chatterjee.
F I N A L O R D E R
1. The instant case was filed by complainant U/S 12 of the C.P. Act, 1986,
as amended against the O.Ps. alleging deficiency in service U/S 2( 1 )( g ) of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the O.Ps. to award a compensation of Rs. 10,00,000/- on different counts.
2. The complainant Kakali Chowdhury, aged about 35 years, on receiving fractured injury on her right arm had gone to the O.P. no. 2 nursing home for treatment. She was admitted there by O.P. no. 3, the owner of the nursing home and underwent operation on 14-04-2010 under supervision of O.P. no. 1 Dr. Bhaskar Chatterjee. She was discharged on 17-04-2010. Thereafter as per advice of the O.P. no. 1 she went to his chamber on 26-04-2010 when some of the stitches were removed and again on 30-04-2010 for removal of other stitches. Feeling severe pain on the operated area she again visited the same doctor ( O.P. no. 1 ) on 04-05-2010 who assured that the healing was in progress. Feeling further aggravation of pain she again visited the O.P. no. 1 on 18-05-2010. O.P. no. 1 medically treated her and advised her to revisit after four weeks. Instead of healing the patient started feeling unbearable pain. She was again taken to the same doctor ( O.P. no. 1 ) on 20-05-2010. With no sign of improvement, the patient revisited the O.P. no. 1 on 31-05-2010 when the doctor opined that the union of the plate was in progress as the operation was very successful. Unfortunately the plight of the patient did not end. She further visited the O.P. no. 1 on 18-06-2010 and 22-07-2010 with no noticeable relief and recovery. Loosing faith on the mode of treatment of the O.P. no. 1 the complainant consulted Dr. H.A. Shah, an Orthopedic Surgeon, who opined that the operation was faulty and the infection already started in the operated area.
3. Finding no other alternative she was taken to Christian Medical College at Vellore on 30-08-2010 for undergoing treatment and operation incurring huge expenditure. Her right arm has been shortened for the defective operation and insertion of low quality plate in her arm by O.P. no. 1.
4. The O.P.no. 1, Dr. Bhaskar Chatterjee in his written version denied all material allegations made in the complaint and contended interalia that he had done the operation properly and successfully in using good quality steel plate ; that the patient was in suitable condition on 17-04-2010 when discharged ; that at the time of removal of the stitches there was no infection ; that the patient never complained of any pain in the operated area during her visits ; that the patient did not take proper care over dressing after removal of the stitches and started lifting of articles by the operated hand ; that the bone healing being a natural process, required sufficient time; that he never neglected any operation and treatment ; that the complaint is filed for the purpose of extorting money ; that the complaint is not maintainable for non joinder and mis joinder of parties. So the complaint should be dismissed.
5. The O.P. nos. 2 & 3 in filing joint written version stated that the complainant made direct contract with the O.P. no. 1 for operation and implant of the steel plate which was supplied by the O.P. no. 1 ; that the patient was discharged on 17-04-2010 ; that they run the nursing home with good reputation for last 17 years. So they prayed for exemption from the case.
6. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
ii) Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
7. Both the points are taken up together for consideration. Admittedly patient Kakali Chowdhury was admitted in the nursing home of O.P. nos. 2 & 3 with a fracture in her right arm and the operation and implantation was done by O.P. no. 1, Dr. Bhaskar Chatterjee. From the written version of the O.P. nos. 2 & 3 a confusion creeps in over the appointment of O.P. no. 1 as the operating doctor. They stated that the mother of the complainant, a registered nurse of the same nursing home appointed Dr. Bhaskar Chatterjee. On the other hand the complainant claims that this doctor was appointed by the O.P. nos. 2 & 3. This claim has substance when we come across the written version of the O.P. no. 1 himself. He stated that he was appointed by O.P. no. 3 for operation of the complainant. Therefore, we have no hesitation in our mind that the nursing home authority appointed the O.P.no. 1 for conducting operation upon the patient. So the dispute over appointment of Dr. Bhaskar Chatterjee is set at rest.
8. Admittedly post operation treatment was conducted by the O.P. no. 1. The patient since after operation on 14-04-2010 was under prolonged treatment and care under O.P. no. 1 till 22.07.2010. The enclosures viz. the discharge certificate and medical prescriptions ( photo copies ) indicate that the patient received systematic treatment from O.P. no. 1. In all she attended the doctor ( O.P. no. 1 ) on 8 to 9 times but with no sign of improvement. It is the persistent claim of the O.P. no. 1 that a very good quality steel plate of Green Surgical was implanted in the right area of the patient and it required proper care and rest during post operative period for satisfactory union of the plate with the bone and muscle. He further claims that the operation was successful and the healing being a natural process the patient ought to have kept patience. So there was no deficiency in service on his part nor there was medical negligence in operating and treating the patient.
9. In spite of the lofty claim by the O.P. no. 1 two pertinent questions creep in – viz. a) For what specific reason the patient started feeling agonizing pain in the operated area within 2/3 days after removal of the stitches ? When the pain became unbearable she was taken to the O.P. no. 1 on 04-05-2010 and again on 08-05-2010. The medicines prescribed could not subside her pain. This aggravation of pain remained unabated till 22-07-2010 and 06-08-2010 when she last consulted the O.P. no. 1.
10 The second distressing question emerges – if the operation was successful and good quality steel plate was implanted, why the patient did not notice improvement in the operated area ? Why the documents or purchase receipts of the so called good quality steel plate was not made over to the patient as is normally followed by the reputed nursing homes or hospital authorities ?
11. We have no hesitation in our mind that the o.ps. have miserably failed to give any satisfactory explanation to these questions. We know that everything happened in four walls of the operation theatre. Nothing can eliminate the strong suspicion if there was collusion between the O.P. no. 1 and O.P. nos. 2 & 3 in purchasing a low quality plate. We also cast doubt over the expertise of the doctor ( O.P. no. 1 ) who operated the patient and implanted the plate.
12. This doubt is reinforced from the opinion of the Dr. H.A. Shah who was also unsure over the union of the plate by putting question mark in his prescription and detected spread over of infection in the operated area.
13. It is needless to mention that a patient having operation and implantation in her right arm cannot be capable to move her operated arm for a considerable period and not to speak of lifting of articles as blamed by the O.P. 1 to justify his successful operation or performance. In fact the accusation that the patient is to blame, is just bogus. This is proved from the subsequent events on medical treatment.
14. Loosing faith on the treatment of Dr. Bhaskar Chatterjee, O.P. no. 1, the complainant was taken to Vellore for treatment and was admitted in Christian Medical College, Department of Orthopaedics, on 25-08-2010. The treating doctor Vignesh Prasad diagnosed the patient with infective non union of both bone right forearm with implant insitu.’ This opinion of the Christina Medical College Vellore converges with the opinion of Dr. H.A. Shah who was sceptic over the progress of the union and detected infection. However, she was operated on 26-08-2012 and discharged on 30-08-2012 after removal of the implanted steel plate. She was directed to again attend the hospital on 26-11-2010 for definite fixation when the infection settles. Accordingly she was again admitted in the same hospital on 06-12-2010 for necessary operation and discharged on the same date. But she had to stay in Vellore till 14-12-2010 for suture removal.
15. Therefore, it is established that the doctor ( O.P. no. 1 ) was not proficient in handling the implant matter, and that his operation and implantation of the plate was faulty. We are constrained to hold that the O.P. no. 1 was ignorant of the fact that the implant starts eroding into the bone if the bone is soft and this can cause severe pain and lead to infection. This is what actually happened in case of the complainant.
16. We are shell-shocked when we imagine the plight of the patient. Had she been under further treatment of the O.P. no. 1, she might develop gangrene in her right arm and we must say she has marginally escaped amputation. If she was not placed for revision surgery for taking out the defective implant and to replace it with the good one by the doctors of the Christian Medical College Vellore, her life would have been miserable together with the life of her deaf and dumb 10 years old daughter Tiyaasa, who is solely dependent on the complainant.
17. It is for the prolonged wrong treatment followed by faulty implant by Dr. Bhaskar Chatterjee, O.P. no. 1, the right hand of the complainant has shortened. This doctor has a tie-up with the O.P. no. 2 and 3 nursing home and as such in our considered opinion we trace gross medical negligence on their part. The persistent claim on the part of the O.P. nos. 2 & 3 that they have no liability for alleged medical negligence and that the O.P. no. 1 doctor was selected by the mother of the complainant who is a staff nurse of the same nursing home cannot hold ground as per the admission of the O.P. no. 1, Dr. Bhaskar Chatterjee, that he was engaged by the O.P. nos. 2 & 3 nursing home. Naturally the O.P. nos. 2 & 3 cannot have a respite from the rigours of law.
Hence,
O R D E R E D
That the C. C. Case No. 53 of 2011 ( HDF 53 of 2011 ) be allowed on contest with costs against all the O.Ps.
The complainant is entitled to a compensation of Rs. 5 lacs towards damage and Rs. 1,50,000/- for prolonged mental harassment, pain and agony and for Rs. 3 lacs for medical treatment.
The complainant is further entitled to litigation costs of Rs. 20,000/-.
The O.P. nos. 1 and 2 & 3 be directed to pay jointly and severally the total amount aggregating Rs.9,70,000/- within one month from the date of this order failing the amount shall carry interest @ 12% per annum.
The O.P. no. 1 be further directed to deposit a sum of Rs. 50,000/- in favour of Consumer Welfare Fund.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
