DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

      C.C. CASE NO. _70_ OF ___2013_

DATE OF FILING : 12.2.2013                     DATE OF PASSING JUDGEMENT:27/042017

Present                        :   President       :   Udayan Mukhopadhyay

                                        Member(s)    :   Subrata Sarker

COMPLAINANT             :   Manjusri Mukherjee,P-8, Ashoke Trust, Ganguli Bagan, East Road, P.O Garia, Kolkata – 84.

-VERSUS  -

O.P/O.Ps                            :  1.    Dr. Biplab Dolui, Desun Hospital & Heart Institute, ( A unit of P.N Memorial Neuro Centre & Research Institute Ltd.), Desun More, E.M Bypass, Kasba Goalpark, Kolkata – 107, P.S Tiljala.

                                             2.     Desun Hospital & Heart Institute, Desum More, E.M Bypass, Kasba Goalpark, Kolkata – 107, P.S Tiljala.

                                              3.     The Christian Medical College, IDA Scudder Road, Vellore- 632 004.

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Sri Udayan Mukhopadhyay, President

            The short case of the complainant after amendment of the complaint is that complainant is a housewife of 60 years old and got severe pain in her right knee  and Artharities,for which she rushed to Desun Hospital and Heart Institute, where Dr. Biplab Dolui, O.P-1, advised for replacement of the knee and for that several tests were done and operation was done in the month of October, 2011  and by this operation cartiledge was replaced and implant the knee. After two month of the operation, complainant noticed that pus was formed and was discharging form the affected right knee. She again visited the said hospital. The O.P-1, who operated the patient, washed and dressed the affected part and released the patient. But complainant did not bear with the pain in her right knee and no improvement was also seen, patient became nervous, weak and wanted to get relief from elsewhere, for which she went to the Christina Medical College, Vellore on 3.9.2012. The case of the complainant is that in course of treatment at Vellore, it had seen that the patient had persistent pain in the right knee and developed redness and swelling of the right knee with fever associated. It was also found swelling in the anterior aspect of the knee and vertical middle scar with a actively discharging sinus. It has claimed that doctor of Vellore Hospital has taken every possible steps and ultimately patient was discharged on 16.1.2013 and from the discharge summary   it reveals that complainant is a known patient of diabetic for two years . But O.P doctor inspite of having full knowledge about diabetic advised operation of the knee of the complainant, as a consequence whereof the patient has not recovered and she has to spent huge amount of Rs.4 lacs at Desun Hospital and Christian Hospital, Vellore. It has claimed that due to wrong treatment of the O.P Doctor the patient had to go Vellore where she got relief but due to wrong treatment of the O.P doctor, her right knee is still remaining defective. It has claimed that Doctor of Desun hospital did not disclose his incapability and even the complainant requested and asked the doctor for referring the patient to Vellor but Doctor advised no need at all , as because treatment of Vellor and Desun Hospital are same, for which, complainant claimed against the O.P Doctor Rs.10 lacs as compensation including medical expenses both at Desun Hospital and Vellore.

            The O.P-1 doctor has contested the case by filing written version supported by an affidavit and claims that the case is not maintainable and liable to be dismissed as the complainant has failed to make out prima facie case of medical negligence or deficiency of service either on the part of the O.P-1 Doctor or O.P-2 hospital. It has claimed that the instant complaint is a speculative attempt for unjust enrichment and not really for any alleged damage due to the reasons attributable to either of the O.Ps and complainant has come with unclean hand and complainant suppressed the relevant facts while filing the complaint. It has admitted that complainant was brought to the emergency department of O.P-2 Hospital on 16.10.2011 at about 11.15 am with complaint of severe pain in  both the knee joint and mild swelling. From the case history as was given by the complainant’s husband  it revealed that complainant was hypertensive but non-diabetic, had pain in knees for the last two years and also had history of Cerebro vascular attack two years back ,after which the right upper limb and the lower limb were mildly paralysed, she used to have medicines namely Stamlo Beta, Plagril on regular basis  and at the time of admission she had blood pressure 140/80.  On examination of the complainant it was found that she was suffering from osteoarthritis Grade IV with gross deformity in both knees joints specially with right knee and had difficulty in movement  in he knee along with pain ,she was put under conservative management of treatment. The complainant was also referred to the dental specialist on a routine procedure to exclude source of infection  and a specialist in medicine as she had prolonged history of HTN. The investigation reports of the complainant was all within the normal parameters including the glucose fasting which was 101md/dl while the glucose post prandial was 147 mg/dl. Thereafter complainant was advised for undergoing total knee replacement .But complainant was taking clopidogrel, for which TKR was deferred. Thereafter she was found to be haemodynamically stable and  she was discharged along with relevant advises and again brought to the emergency department on 22.10.2011 with pain in both joint  , blood pressure 130/90 mg CBS 105 mg/.dl. After pre-operative medicines and pre-anesthesia checks done, on 23.10.2011 the TKR was done under general anaesthesia whereby the implant was inserted into the right knee of the complainant and the surgery was uneventful and the relevant post operative advises were given which was followed. The opinion of Endocrinologist was immediately sought when the blood sugar levels was raised in post operation period  and as per his advice insulin dose was given to the complainant for management of blood sugar. Further on 25.10.2011 the haemoglobin of the complainant was found to be 7.38gm and two units of bloods was advised to be transfused . Thereafter on 27.10.2011 Dr. Debashis Giri found the complainant’s glycemic state was controlled and suggested Tab Glycomet SR tab and insulin to be given only on SOS basis. . Finally on 28.10.2011 the hemoglobin level and blood sugar level of the complainant was found to be normal limit and she was discharged on 31.10.2011 in a haemodynamically stable condition with relevant advises which included regular medication. Complainant again visited the hospital on 30.11.2011 with complaint of pain in the knee and soakage in the area of stitch where the TKR was previously done. Complainant got admitted at the hospital for dressing and debridement was done on 1.12.2011 by the O.P-1 doctor. Again on 23.5.2012 complainant visited the Hospital with pain and swelling at the right knee associated with discharge of pus and restricted movement of the right knee. Accordingly dressing and debridement was done and specimen of sinus was sent for culture sensitivity report. During the dressing the patient was found to have discharging of sinus from the lower end of the scar and debridement of the infected tissue was performed. The complainant and her accompanying relatives were explained in details about the prognosis including revision knee replacement and arthrodesis for treating the infection in the right knee.  The post procedural period was uneventful and the complainant was discharged on 24.5.2012 in a haemodynamically stable condition with the advice of medicine. The O.P-1 doctor strongly denied that due to wrong treatment of O.P doctor, complainant had to go to Vellore where she got relief and due to wrong treatment by the O.P Doctor the patient and her knee is still remaining defective as alleged. It has claimed that the O.P doctor never disclosed his incapability or complainant requested him for referring the patient to Vellore when she was advised that the treatment of Vellore and Desun Hospital are identical. The positive case of the O.P doctor is that there has been no wrong treatment done upon the complainant by O.P-1 and the TKR was done as per the standard medical protocol. It has claimed that O.P-1 is a Surgeon by academic qualification MBBS MS Orth. and is capable of doing TKR as per academic credential as well as long professional experience. It has further claimed that on admission on 23.5.2012 the complainant was found to have infection in the right knee after TKR , the O.P doctor suggested the complainant about the alternative remedies of arthrodesis and revision knee replacement of right knee which are the standard protocol remedies available as per medical science to treat a patient of post TKR infection, but the patient failed to pursue and never turned up for any further medical   treatment/advice after being discharged on 24.5.2012 from the O.P-2 hospital. Accordingly O.P-2 claims not to give any relief to the complainant and the case is liable to be dismissed. It has claimed that without valid notice at his address the proceeding was initially initiated by the Ld. Forum and exparte order was passed , though notice was not served at his proper address and finally when copy of judgment was served to him at the right address he came to know for the first time about the matter and preferred appeal and on remand copy of complaint was served upon him to file W.V . The O.P-1 doctor submitted that the complaint as amended is devoid of any merit and has been filed with a speculative motive and the same is vexatious and as such the same is liable to be dismissed on the ground of maintainability and also on merit with cost.

            The O.P-2 Desun Hospital contested the case by filing written version and submitted that complainant has neither any grievance nor any claim of compensation against this O.P  and hence there exist no “consumer dispute” as contemplated under provision of the Act . Therefore, the complaint is not maintainable against this O.P hospital. The O.P-2 also supported the case of the O.p-1 doctor and submitted that accusation made against the O.P doctor is not correct and the copy of complaint served upon the O.P-2 does not contain any reference of any document  and prays for dismissal of the case .

            The O.P-3 Christian Medical College and Hospital, Vellore, is also contesting the case by filing written version. At the outset O.P-3 has submitted that there is no cause of action against O.P-3 ,for which case must be dismissed  as usual against O.P-3 ,since complainant admitted at Vellore and every possible steps were taken and ultimately patient was discharged on 16.1.2013. The O.P-3 has claimed that complainant himself has admitted which reveals from the history of the patient that she is known diabetic for two years and administered injection on 12.4.2013 and immediately there was sign of relief. It has claimed that O.P-2 has been wrongly , unlawfully and unnecessarily impleaded in this proceedings. It is true that complainant has included O.P-3 only for the sake of convenience. Thus, answering O.P does not make any comment on the averment of the complainant in this procedure , especially in light of the fact that complainant herself has praised the efforts of this O.P.  It has further stated that a brief history of treatment given to the complainant at our hospital shall explain the position further. The complainant Mrs. Manjusri Mukherjee  was presented with Right Knee infected total knee replacement on 25.8.2012. She was diagnosed to have bilateral knee osteoarthritis and underwent right total knee replacement in Calcutta in October, 2011 and she developed infection of the replacement after six months and presented to CMCH for further treatment. She underwent Right Knee Implant exit, Debridement and Arthrodesis with an external fixator on 11.9.2012 and was followed up on 3.11.2012. She underwent fixator removal on 19.1.2013 and her knee arthritis was uniting at follow up. The fixator was removed and the cylinder cast was applied on 19.1.2013. In this circumstances answering O.P prays for dismissal of the case in so far as against O.P-3 is concerned along with exemplary cost in favour of O.P-3.

            Points for decision is whether the treatment of O.P-1 doctor is in negligent manner ,for which complainant suffered lot.

Decision with reasons

            At the very outset we must have to state that complainant has relied the judgment of the Hon’ble Supreme Court of India reported in 2010 CPJ (1) ,wherein Hon’ble Court has observed the view of principle of re-ipsa-locutor which comes in a case where principle of res-ipsa-locutor  operates and complainant does not have  to prove anything as the things proves itself because the facts    of the reported judgment is that complainant’s wife was suffering from Malaria and patient died due to Cardiac Respiratory Arrest and Malaria . But the case record shows wrong treatment for Typhoid  given to the complainant’s wife.  Here, in the instant case  this judgment is not applicable ,because principle of res-ipsa-locutor is not identical regarding the dispute of the complainant.  Herein, the dispute is that complainant was suffering from pain in her right knee and arthritis, for which she had rushed to Desun Hospital and operation was done and thereafter complainant noticed that pus was formed and quashing out the same she was discharged and Doctor advised some antibiotic and ultimately when it was not controlled she went to Christian Medical Hospital, Vellore, where the same pain was noticed in right knee as well as developed redness and swelling of right knee with fever associated.

            From the history sheet of Vellore Hospital it has come to our knowledge that Doctor of Vellore treated the patient in the same area and no where in the discharge certificate it has mentioned “the treatment of Desun Hospital by the Doctor of O.P-1 was not proper”. The doctor of Vellore on examination  of right knee  where the operation was done in Calcutta by the O.P-1 doctor, observed that right lower limb flexed at hip; 90 deg flexion at knee ,ankle and foot at position . Swelling in the anterior aspect of the knee. Vertical midline scar with a actively discharging sinus in the intrapatellar region. Erythema present. There is no swelling in the popliteals fossa. ROM: Not assessed due to severe pain. Stability: Not assessed. HIP and ANKEL:  normal. There are no distal neurovascular deficits. Examination of left knee: Fixed flexion deformity:10deg.

            So, we find from the history and examination report of the Christian Medical College of Vellore that there is no whisper of any negligent act  of the O.P-1,doctor. The treatment given by the O.P-1 and treatment given by the Doctor of Vellore is in the same region.  So, that judgment of Hon’ble Supreme Court is not applicable here.       It is not the case that O.P doctor  treated for the left knee instead of right knee .

            Thus on a moment scrutiny we find that expert opinion is required to determine whether the treatment given by the O.P-1 doctor at the relevant juncture was correct diagnosis or not. But complainant did not avail the said facilities even by filing any application.  It is needless to say that Hon’ble State Commission while remanding the case ,giving opportunity to the complainant to implead the hospital ,at that time has observed as below:

            “ Secondly it has been observed by the ld. District Forum that no treatment papers relating to the first time knee joint replacement at Desun Hospital could be produced by the complainant.  The Ld. District Forum further observed that available papers were referred to the SSKM Hospital and the board constituted in the Hospital sought for documentary details of the pre-operative preparation and also post operative treatment papers but the complainant could not submit available papers. Having regard to the circumstances as aforesaid we find it is just and proper to send the case on remand after giving opportunity to the complainant to implead the hospital as party”.

            The ld. Advocate of the complainant failed to realize the observation of the Hon’ble State Commission i.e unless the Desun Hospital is being impleaded how the complainant will get the documents which are lying with the hospital authority and no order can be passed, if the said hospital is not being made party ,for which the then Hon’ble Justice Kalidas Mukherjee has observed “The said opportunity is for the interest of the complainant. But complainant did not avail the said opportunity ,although made party ,but did not pray for production of the said documents and thereafter seeking expert opinion. So, it is very difficult to hold without expert opinion the method of treatment of O.P-1 doctor was in negligent manner.

            It has also claimed by the complainant that at that time complainant was diabetic patient because the documents of Christian Hospital clearly suggests that complainant is a known diabetic patient for two years , hypertensive for 10 years.  The discharge certificate was given on 16.1.2013.

            Now we have to see whether the complainant was diabetic at the time of admission in the Desun Hospital, O.P-2, or not.

            Complainant was admitted on 22.10.2011 and discharged on 31.10.2011.  In the Discharge Certificate it has mentioned “ diet diabetic” and thereafter in discharge summary dated 24.5.2012 also it is mentioned “Salt restricted diet diabetic”.  But at the time of discharge in the discharge certificate dated 31.10.2011 it has mentioned that complainant having old hypertensive ,known diabetic female patient” and also mentioned “she became diabetic in post operative period, blood sugar is within the normal limit”. Her final diagnosis was Osteoarthritis right knee (M15.9) . Total knee replacement done on right knee on 23.10.2011. Thereafter we find that patient became diabetic. We also find some blood test reports outside the hospital and found that sugar was controlled. Apart from that at the time of taking case history from patient, the patient stated D.M (Diabetic Medicine) – NO, only stated Stamlo Beta one tab. Daily and another tablet. All the columns show “No , except hypertension” and diabetic follow up chart was maintained in  the Desun Hospital from 23.10.2011 to 30.10.2011.

            It is interesting to point out that  another case history of Desun Hospital annexure C clearly suggests that patient was suggested one and half months she is taking diabetic medicine i.e Tablet Glycomet SR.

            Thus, we find the totality of the circumstances  clearly depends upon the report of expert regarding the negligent treatment of the treating doctor. But complainant did not take initiative for medical expert opinion inspite of giving opportunity in this regard by the Hon’ble State Commission while remanding the case back to this Forum, that is why, we are unable to determine that the doctor,O.P-1, did not provide best efforts of treatment and we are aware even after giving best efforts of treatment, if the patient could not survive that does not mean that doctor or surgeon must be held guilty of medical negligence unless there is strong evidence to prove the same. We do not find in the naked eye that the treatment given by the O.P-1 doctor was short of standard and reasonable care. So, he cannot be found negligent. Moreover, it is the case of the O.P doctor that patient did not care the advice after the operation. We are aware the catena of decision of the Hon’ble Superior Court that “ a patient who does not listen to his doctor’s advice, then he has to face the adverse consequence”.

            Here we find that complainant was directed to check up but she failed to attend on that date and that is why pus accumulated in the operated area and became reddish due to such infection and fever may come. So, in the naked eye we cannot hold that O.P-1 doctor is negligent when standard of practice has already been adopted and the onus to prove the medical negligence lies heavily on the complainant and complainant should adduce expert evidence and medial literature to submit his allegation. But even after observation of the Hon’ble State Commission while remanding the case, complainant did not care to the same.

            Hence, we are sorry to say that we are unable to hold negligence of the O.P-1, doctor, at this stage from the available documents on record.

            Hence,

                                                                                    Ordered

That the case be and the same is dismissed on contest against O.P-1 including other O.Ps but considering the circumstances we make no order as to the cost.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

                                                Member                                                                       President

Dictated and corrected by me

                        President

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,         

                                                                                    Ordered

That the case be and the same is dismissed on contest against O.P-1 including other O.Ps but considering the circumstances we make no order as to the cost.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

                                                Member                                                                       President