Date of Filing: 17.11.2014. Date of Disposal: 30.11.2022.
Complainant :Durga Roy, D/O Basudeb Roy, W/O Abhijeet Roy, Resident of Ismile Madhyapara (Near Protima Sangha Club), P.O. Asansol, P.S. Hirapur, Dist. Burdwan, Pin-713301.
-VERSUS -
Opposite Party :1. Dr. Bidhan Chandra Das @ B.C. Das, Resident of Hill View, S.B. Goray Road, (Near St. Vincents School Gate), P.O. Upper Chelidanga, Asansol, Dist. Burdwan, Pin-713304.
2. Dr. Supriya Maity, Lower Chelidanga, P.O. Upper Chelidanga, Asansol, Dist. Burdwan, Pin-713304.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
: Mr. Atanu Kr. Dutta. - Hon’ble Member.
Appeared for the Complainant :Sri Samyuk Banerjee, Ld. Advocate.
Appeared for the Opposite Party Nos.1 & 2. :Sri Deb Kumar Sinha Ld. Advocate.
FINAL ORDER
On 17.11.2014 namely Durga Roy has lodged the complaint u/S 12 of the Consumer Protection Act, 1986, against the OPs.
The case of the complainant, in brief, is that the complainant is capable of doing all household activities in the capacity of a home make as well as a student of LLB. All on a sudden, while doing household work, got an injury in her left hand on 26.10.2012 and she went to the chamber of OP No.1. Upon examining her, the OP No.1 advised her to undergo X-rays. On issuing the Xerox plate as well as the report, the doctor opined that the little finger of her was fractured. The OP No.1 set the said fractured bone of the complainant at his chamber and put Crape Bandage and prescribed some medicines. But due to continuation of pain, she had to visit the OP No.1 on 01.11.2012 and the complainant complained about the continuing pain to her. But the OP No.1 doctor did not bother to untie the Crape Bandage for examining the injured finger and verbally said to her that the pain happens to be the general consequence of any facture and setting thereof and advised to come after 10 days on 11.11.2012. Accordingly, she went to the OP No.1 on that day and upon examining the injury clinically, the OP No.1 doctor said that the fracture injury had been united , unwrapped the Crape Bandage and advised her to have hot compress for 10 weeks, 3-times a day and active exercise for three months . The OP No.1 doctor also advised her to do no heavy works for 15 days. But unfortunately, either setting the injury on 26.10.2012 or on 01.11.2012 or on 11.11.2012, the OP No.1 had not done or advised her for X-ray for determining the actual position of the injured finger and continued the treatment of the complainant upon guess work.
Again, on 26.12.2012 she had been compelled to go to the Chamber of the OP No. 2 Dr. Supriya Maity. OP No.2 doctor had first asked her to have an X-ray of her left hand . Upon seeing the X-ray and the plate verbally said that the fracture is still existing and it has not been united and advised the complainant to have Physiotherapy and prescribed certain medicines to be taken for a period of 30 days. But due to continuing of the problem, she against visited to the Chamber of Dr. B.P. Mohanti on 24.1.2013 when the said doctor asked her to make X-ray on 26.01.2013. Thereafter, Dr. B.P. Mohanti, after perusing the report of X-ray, had prescribed two numbers of medicines only. But the pain had been continuing. In spite of having Physiotherapy and taking medicines, the pain could not be controlled and by this time, the little finger of the left hand of the complainant curved and/or bent.
Then, she again went to Asansol District Hospital on 25.09.2014 when upon examining the finger in dispute, the doctors of the said Hospital asked her to undergo X-ray and the X-ray report disclosed to the effect that united fracture has of Proximal phalanx of little finger as compared with old plate. But the doctors of the said Hospital could not say in true sense that fracture was perfectly united and on the self same date she again went to Asansol District Hospital and she had been advised to continue Physiotherapy and had been advised to attend plastic surgery OPD of any State Medical College. On seeing the report dt. 25.09.2014 the doctor commented to the effect that the X-ray shows Bony Union. On 11.01.2013 in the meantime, the complainant sent an advocate’s letter to the OP No.1 but no reply received. The complainant raised question about the treatment of the doctor regarding the bony union and cure of the injured finger.
It is further stated that being mother of one female child 18 years the age of whom had been in and around 16 years in the year 2012 , she supposed to bring up as also being a housewife she has to look after and shoulder all the household responsibility which could not be carried on for a prolonged period for treatment and for that they suffered tremendous hardships. In this way, the OPs committed deficiency in service and negligence. The complainant had to incur total medical expenses of Rs. 1, 30,000/- . The OPs did not follow the Code of Ethics and regulations of Medical Council of India and the provisions of other laws related to Medical Science in respect of medical treatment of the complainant.
Upon this back ground, the complainant prayed for directing the OPs to pay a compensation of Rs. 3,50,000/- for causing unfair trade practice and negligence in treatment and Rs.1,30,000/- as medical expenses incurred by the complainant and litigation cost of Rs.10,000/-.
OP Nos. 1 and 2 have contested the case by filing two separate Written Versions (W.V) by them denying all the material allegations contending inter alia that the complainant has no cause of action for the case and that the case is not maintainable in its present form and that the case is barred by law of limitation and that the case is defective for non-joinder and mis-joinder of parties and that the case is barred u/s 1(1)(d) of the Act.
The specific case of the OP No.1 is that one Mrs. Durga Roy, the complainant, came to the OP with swelling injury in the left hand. On examining the left little finger of the patient, it was found slightly deformed from the base of the finger. X-ray showed simple Fracture Base of Proximal Phalanx of Little Finger near 5th Meter Carpo Phalangeal joint and soft tissue swelling. This OP advised it needs Close Reduction and Immobilization for healing and pressure Bandage for Soft Tissue Injury. Prognosis of the fracture was explained to the patient before doing C.R. In this fracture, healing is not problem but stiffness of the finger is the main problem. In such a case, after reduction of fracture, patient needs to do active movement of finger regularly and sincerely. That close reduction of the patient was done by stripping the finger followed by pressure Bandage Analgesic and Calcium medicine were prescribed with advice of regular finger movement. After few days, the patient came to this OP , it was found that the patient did not abide by the given advice for finger movement for which he again advised her to do exercise of finger movement regularly and properly and sincerely. That after 3 weeks when the patient came, this OP removed the Bandage and the Strips and advised for hot compression and regular active exercise of the finger. This OP even warned the patient in the event of non-performance of the instructed advice, physiotherapy will be required. This OP also advised to do all permitted activities at home. The complainant agreed to it as Physiotherapy will be very much expensive to the complainant to bear the expert’s cost. Since then, the patient never visited to this OP. But from the copy of the notice of the complainant, received by this OP from the Ld. Forum, he came to know that after obtaining treatment from this OP, she went to other doctors and hospitals and took medicines and Physiotherapy as per their advice. There was no such prescription or daily chart of attendance in the clinic of the physiotherapist. As per documents submitted by the complainant. This goes to show that the complainant neither did exercise nor did Physiotherapy for further treatment which once again goes to show that the complainant herself was very much negligent in taking care of the injured finger for which the complainant was solely liable and responsible for alleged sufferings. But there were no clinical written findings of the same as to why the doctor advised for plastic surgery.
It is further stated that the fracture in question is a simple fracture near the Matecarpophalengal joint. In this region of finger, soft tissue and tendon gets more damages. By this tendon and soft tissue finger movement occurs. So, healing or Union of Bone at Fracture Site is not a problem, the only problem is the stiffness of joint movement. In this context, it can safely be held and presume that due to the negligence on the part of the patient, active movement of finger from the beginning and after striping of C.R. Stiffness of Inter Phalengeal Joint and Matacarpopholengeal joint occurred. Further, for such neglect and carelessness of the patient in some cases problems of slight flexion deformity of Finger Joint can also develops. It is further stated that the complainant never came for check-up before this OP after three weeks when this OP advised for active exercise and hot compression. She got herself treated by other orthopedic doctors. This OP came to know that the patient at present is doing all works without any problem. The complainant only with a sole motive to extract money by the threat of maligning the reputation of this OP, has filed the present case against this OP.
Upon this background, this OP prayed for dismissal of the case with a cost of Rs.50, 000/- against the complainant.
The specific case of the OP No.2 is that the complainant came to the Chamber of this OP in the evening of 26.12.2012 and he had seen the patient only once in the evening on that very day and there after the complainant never came to this OP for follow up. On that very day, whatever steps were taken by this OP as per the Medical Science, he gave those advice. The patient got her treated by other orthopedic surgeons. X-ray reveals Fracture Proximal Phalanx of left little finger with partial union and he referred the patient to Physiotherapy for exercise work, wax bath, Ultrasound therapy and medicines. He did not commit any deficiency in service or negligence and from the documents; it is found that two other Orthopedic Surgeons examined the patient. The advices given by the said doctors are in the same line given by this OP to the patient. Apart from the aforesaid two doctors, another Orthopedic Surgeon of District Hospital, Asansol, examined the patient on 25.09.2014. The said doctor Banibrata Ghosh also advised for physiotherapy and referred the patient to Plastic Surgery OPD of any Govt. Hospital.
Upon this background this OP prayed for dismissal of the case with an order of cost of Rs. 1, 50,000/- in favour of this OP as the complainant damaged the goodwill without having any basis or foundation.
Decision with Reasons.
In order to prove the case, the complainant has filed evidence-on-affidavit and Xerox copies of documents. OP No.1 filed the questionnaire against the said evidence of the complainant and the complainant filed reply of the said questions.
OP Nos. 1 & 2 prayed for accepting the written versions as their evidence-on-affidavit which was granted. Therefore, the Written Versions supported by an affidavit filed by them have been accepted as their evidence-on-affidavit. The complainant filed two separate questionnaires against the evidence of OP Nos. 1 & 2 and both the OP Nos. 1 & 2 replied separately to those questionnaires.
The expert opinion dt. 29.08.2016 has been received by this Commission on 01.09.2016. The complainant filed questionnaire to the expert and the expert submitted the answer dt. 28.02.2017.
Perused the evidence on record both orally and documentarily.
It appears that the complainant has corroborated the fact depicted in the complaint by the evidence-on-affidavit of her. On the other hand, the OPs, by way of filing evidence-on-affidavit, corroborated their specific case and denied all the allegations made by the complainant either in complaint or in evidence. The complaint stated in her evidence that on 26.10.2012 she was examined medically by the OP No.1 for the treatment of her injury in her left hand little finger and from the X-ray report, it was found that it was a fracture on the little finger of the left hand and the OP No.1 set the said fractured bone by putting Crape Bandage and prescribed some medicines and advised her to take medicines properly. As the pain was continuing, on 01.11.2012 she went to the OP No.1 again and after examining, the doctor verbally said that the pain happens to be the general consequence of any fracture. Again on 11.11.2012 she was examined clinically in respect of the injury by the OP No.1 doctor and the doctor said that the fractured injury of the complainant had been united and un-wrapped the Crape Bandage and advised her to have hot compress for 10 weeks, 3-times a day and active exercise for three months and also gave advice to do no heavy work for 15 days. In this connection, the complainant alleged that the doctor did not advise her for X-ray for determination of the actual position of the injured finger of the complainant and it is the negligence on his part. But according to the orthopedics, a doctor has choice to advise for X-ray after completion of the medical treatment as advised by him to see whether the fracture has been united or not and it is not the mandatory to make X-rays during the middle period of treatment. But since after 11.11.2012 this complainant did not come to the OP No.1 for further treatment and in this way she did not give any chance to the OP No.1 for further medical treatment or advice to her. Rather, she went to another doctor i.e. OP no.2 who made advice for x-ray of the left hand little finger on 26.12.2012 long after the incident happened on 26.10.2012 , who advised her to have Physiotherapy . On seeing the report and X-ray plate, he said verbally that the fracture is still existed and the finger is not united. But it is the duty of a doctor to write down the report of X-ray in the prescription and his advice. The OP No.2 verbally said the complainant that the fracture is still existed. It had not been united which has been stated by the complainant in her evidence is very week evidence in nature and it cannot be believable. But the OP No.2 in his evidence said that the complainant got her treated by other Orthopedic Surgeons and X-ray revealed Fracture Proximal Phalanx of left little finger with partial union and he referred the patient to Physiotherapy for exercise work, wax bath, Ultrasound therapy and gave some medicines. He also stated that he treated the patient only once in the evening of 26.12.2012 and thereafter, patient (complainant) never came to him for follow up treatment. Therefore, the evidence of the complainant on this point that the doctor verbally stated that the fracture still exists and that it has not been united cannot be believable. In this regard, the prescription issued by OP No.2 supported by his evidence with regard to medical treatment and opinion given by him to the complainant. Thereafter, the complainant was treated again by one Dr. B.P. Mohanty on 24.01.2013 and X-ray was done on 26.01.2013 whereas it was seen that the Fracture base of proximal phalanx of 5th Matacarpal and he prescribed some medicines though the said doctor has not been made a party and the complainant did not make any allegations yet as per evidence of the complainant it is relevant that the said doctor also opined the same opinion as the opinion of OP No.2. It is also evident from the evidence of the complainant that he again on 25.09.2014 went to Asansol District Hospital and the doctor of the Hospital advised her to undergo X-ray and from the X-ray report, it has been found to the effect United fracture base of proximal phalanx of little finger as compared with old plate. At this stage, the complainant stated that the doctor did not directly speak to the effect that in true sense fracture was perfectly united. It is the word of mouth of the complainant but it is interesting to note that the doctor must note the report as per X-ray report and plate. From the Ticket of the Hospital and the X-ray report of left hand (AP & LAT) dt. 25.09.2014, it is found that united fracture base of proximal phalanx of little finger as compared with old plate and the doctor of the Hospital rightly pointed out it, in his prescription and that should be believable. On perusal of the facts as well as the evidence of the complainant, it is clear that the complainant went to various doctors for her treatment and did not complete her treatment either before OP No.1 doctor or Op No.2 doctor or Dr. B.P. Mohanty or the doctor of the Asansol Hospital. In this connection, the evidence of the OP No.1 is very vital. The OP No.1 stated that the fracture in question is simple Fracture Base of Proximal Phalanx of Little Finger near 5th Meter Carpo Phalangeal joint and in this region soft tissues and tendon gets more damages and by this tendon and soft tissue finger movement occurs. So healing or union of bone at Fracture site is not a problem, the only problem is the stiffness of joint movement. In this context, it can safely be held and presumed that due to the negligence on the part of the patient i.e active movement of finger from the beginning and after striping of C.R. stiffness of Inter Phalengeal Joint and Matacarpopholengeal joint occurred. Further for such neglect and carelessness of the patient in some cases problems of slight flexion deformity of finger joint can also develops. This evidence, in the instant case, especially in the injury of the little finger of the left hand of the complainant is very vital. From the expert’s report dt. 29.08.2016, it is found that the patient was treated first by OP No.1 and then OP No.2 and thereafter, Dr. B.P. Mohanty and lastly by Dr. Banibrata Ghosh , Asansol District Hospital and Dr. Ghosh referred the patient to the Plastic Surgeon , OPD of any Govt. Hospital , but reason not written. Therefore, it cannot be ascertained why or for what reasons, he referred the patient for plastic surgery and the second part of the report is that patient Durga Roy, had fracture Base of Proximal Phalanx of left little finger and which was primarily treated by Dr. B.C. Das . The fracture united in improper position which may have created some functional problem surity of which cannot be averred by the paper submitted. From this report , it is not clear whether there was any lack of treatment caused by the OP No.1 or OP No.2 or either Dr. B.P. Mahanti or the doctors of Asansol District Hospital.
In this connection, it would be worthy to note that the Commissions have dealt with such problems of medical negligence having regard to peculiarity of each case and the relevant law on subject, particularly the common practice in vogue. In most of the cases, the expert evidence play a vital role and the expects in the line are examined in details and the act or omission is analyzed in the light of various writings by the Ld. Members of the profession. Negligence means omission to do something which a reasonable and prudent person guided by the considerations, which ordinarily regulate human affairs would do something, which a prudent and reasonable person would not do those reasonable degree.
As per this legal position, in the instant case, we do not find any materials in the expert’s report that those two doctors can be held liable for commission of negligence regarding medical treatment of the complainant.
The error of judgment on the part of a doctor can be excused, and a reasonable degree of care and skill is expected. A doctor was not be held negligent, simply because something went wrong. He was not liable for the mischance or misadventure for an error of judgment. He was also not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonable competent practitioner in his field.
Here, no such materials are forthcoming to prove that the doctors are only liable when they fell below the standard of a reasonable competent practitioner in their field.
The standard of care expected of a medical man is neither too high nor too low. All that the law expects from him to exercise reasonable care expected of a skilled medical practitioner.
In the instant case, both the doctors OP No.1 & OP No.2 are the skilled medical practitioners in their fields and no such evidence is forthcoming from the complainant that the they did not exercise reasonable care, as expected from a skilled medical practitioner and the skill of medical practitioners differ from doctor to doctor. The nature of profession is such that there may be more than one course of treatment which may be given for treating a patient. The Commission would be slow in attributing negligence on the part of a doctor, if he has performed his duty to the best of his ability with due care and caution and the medical opinion may be different with regard to course of action to be taken by a doctor and the Commission would see that the doctor attended on the patient with care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold that a doctor guilty of negligence.
This principle is wholly applicable to the present case. It is well settled principle that a doctor was not be held if something went wrong. The defective treatment cannot always said to be a negligent treatment and a doctor cannot be held responsible for failure in his treatment , unless there is positive evidence including expert’s evidence was brought on record in support of the allegations of negligence, latches and/or deficiency in service on their part.
Considering the evidence on record and the above made foregoing discussions, we are of opinion that the complainant has failed to prove her case that the OP-doctors committed deficiency in service and negligence by them.
Hence, it the case must fails.
Hence, it is
ORDERED
That the Consumer Complaint No. 218/2014 be and the same is dismissed on contest against the OP Nos. 1 & 2 , but without any cost.
Let a copy of this order be given to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C, Purba Bardhaman. D.C.D.R.C , Purba Bardhaman
