The case of the complainant in brief is that the on 15-01-13 while the complainant was going from Dibrugarh to Digboi in his family car, a Tata truck coming from opposite direction hit his car at Dikom Ikoratoli at about 10:45PM as a result of which, the complainant suffered grievous injury on his head, both hands, left leg and minor injuries on his other parts of the body. The complainant was immediately shifted to AMCH, Dibrugarh but due to non-availability of Neurosurgeon he was shifted to Brahmaputra Diagnostics and Hospital Limited, Dibrugarh i.e. OP No.2 for better treatment. After being admitted the OP No.2 conducted C.T. scan , x-ray, blood test etc and found fracture on the right wrist and left knee joint of the complainant. After examining the above reports the OPs intimated to the complainant that he needs immediate operation for his fractured hand and leg. As such, OP No.1 Dr. Bipul Borthakur, an Orthopaedician conducted the said operation on 18-1-13 and thereafter a steel plate was fixed in his left leg and steel clip in the right hand. But after the operation the complainant did not get any relief, rather pain in both hand and legs increased for which he informed to the hospital authorities nurses and resident doctor and also requested them to inform the concerned surgeon i.e. OP No-1. But, surprisingly, the behaviour of the hospital authority including the resident doctor and nurses were very rough and did not bother and enquire about the above condition of the complainant. The family member of the complainant were rebuked by the authority concerned and misbehaved them. The complainant informed the matter to OP No.1 during his routine visit but the OP No.1 took the matter very lightly and prescribed some pain killers. But still, then the pain of the complainant did not subside and suffered from extreme pain each and every moment whereas, hospital authority did nothing and remained as silence spectator in spite of repeated request. Finally, having no other alternative the complainant and his mother decided to get discharge from Brahmaputra Diagnostics and Hospital Limited 24-1-13 on payment of Rs.1,20,000/- towards hospital bill, medicine and examinations. After being discharge the complainant took admission at Srimanta Shankardev Hospital & Research Institute, Dibrugarh on the same day and was examined by Dr. Ananta Saikia, an Orthopaedician. Dr. Ananta Saikia after thorough check up found that the operation was not conducted properly by Brahmaputra Diagnostics and Hospital Limited due to which the complainant was suffering from extreme pain. Dr. Ananta Saikia during examination found that one broken head screw was fitted and rest of the screw were loose and fracture was unacceptable position. He advised for revision fixation of both fracture. Accordingly, the complainant was again operated on 26-01-13 at Srimanta Shankardev Hospital and Research Institute by Dr. Ananta Saikia and revision fixation was done. Dr. Ananta Saikia informed to the complainant that the steel plate fixed by OP No.1 was found to be in unacceptable position due to which complainant was suffering from severe pain. Besides, steel plate fitted by OP No.1 in the left leg was actually mean for the right leg as it is seen on the plate that R (Right) mark was embossed by which it implies plate for right leg. Whereas, in the instant case OP No.1 had fixed the said plate in the left leg of the complainant for which he was suffering severe pain. At the time of manufacturing the plates the manufacturer put R (right) and L (left) to identify the difference between right and left legs. After the second operation the complainant gradually felt better and he was discharged on 30-01-13 on payment of Rs.1,10,000/- with advice to continue medicine and some exercise. Apart from these during the course of treatment at Srimanta Shankardev Hospital and Research Institute the complainant felt some pain in his left hand for which Dr. Ananta Saikia suggested for x-ray. After conducting x-ray it was found that there was another fracture on left elbow which remain undetected due to negligence of OP No.1 and 2. It is unfortunate to say that due do neglected act of the OP No.1 and 2 the condition of the complainant was detoriated instead of recovery and he suffered severe pain. The act of the OPs were out and out deficiency in service due to their negligence for which the complainant suffered severe pain, torture, harassment and agony. Hence, the complainant filed this case claiming Rs.2,30,000/- only for the expenses incurred in his treatment, Rs.15,00,000/- for physical pain and mental agony and Rs.10,000/- for the cost of proceeding.
After registering the case notices were issued to all the OPs who contested the case and submitted their written statement stating inter-alia that the case is not maintainable in law as well as on facts. The OPs stated that the complainant was admitted on 16-01-13 at Brahmaputra Diagnostics and Hospital Limited, Dibrugarh and thereafter, several tests were conducted on the complainant, as such, C.T. scan, x-ray, blood test etc. After being examination it was found that his right wrist and left knee joint were fractured. The attending physician of OP No.2 found that the complainant required immediate operation for conservation with plate and screw for Tibia of left leg and K-wire fixation on his right hand. Accordingly, after performing necessary examination and test the complainant was operated by OP No-1 on 18-01-13. After being successful operation the condition of the complainant was improved for which on 24-01-13 OP No.2 discharged the complainant from hospital with necessary advice for taking the prescribed drugs. He was also advised to visit the hospital after one month. The OP denies that the complainant was discharged on his request. It is further stated that if patients are discharged on their request, in every discharge certificate it is remarked that “Discharge against medical advice” whereas, in this case no such remark is available on the discharge certificate. As the complainant was satisfactorily improving and there was no necessary for constant observation in the hospital he was therefore, discharged from the hospital with necessary advice. It is reiterated that the operation of the complainant was successfully completed by OP No.1 who is a highly qualified and experienced medical physician of reputation.
The OPs further denied that the complainant after discharge from Brahmaputra Diagnostics and Hospital Limited admitted at Srimanta Shankardev Hospital and Research Institute, Dibrugarh on the same day itself and was examined by Dr. Ananta Saikia and also denied that after thorough examination by Dr. Ananta Saikia that the operation was not conducted properly due to which complainant was suffering from extreme pain and also denied the lock ortical screw found with broken head and rest were loose and fracture was unacceptable position for which Dr. Ananta Saikia advised for revision fixation of both the fracture. The OP also denied regarding the operation on 26-1-13 by Dr. Ananta Saikia and revision fixation was done and during operation Dr. Ananta Saikia found the right steel plate was fixed on the left leg due to which complainant was suffering severe pain. The OPs stated that while admitting the complainant in the hospital of the OP, he was carefully examined and when it is opined that it require immediate operation for conservative with plate and screw for Tibia of left leg and K-wire fixation on his right hand, the OP No.1 accordingly, duly electronically examined the plates for suitable fitting conforming to the complainants injuries and on being satisfied with the test he fixed the plates. After performing the operation the complainant was regularly examined and it was observed that the injuries were improved and the complainant was therefore discharged. The allegation of the complainant was malafide, baseless and absolutely false with some malafide intention to malign their reputation and goodwill of the OPs. There is no deficiency in service on the part of the OPs and hence, they prayed to dismiss the case against them.
In this case complainant gave evidence by swearing affidavit of three witnesses as CW-1, CW-2 and CW-3 and exhibited as many as 71 (seventy one) documents in support of his case. on the other hand, OPs have examined one witness i.e. Bipul Borthakur but exhibited no any documents to rebut the case of the complainant.
Complainant and OPs submitted their written argument.
DECISION AND REASONS THEREOF:
On perusal of the evidence of CW-1 Sri Kuresh Hazarika it is found that on 15-01-13 he sustained grievous injury on his body due to sudden hit by a Tata truck at Dikom Ikoratoli at about 10:45pm. As such, he was immediately shifted to Brahmaputra Diagnostics and Hospital Limited, Dibrugarh i.e. OP No-2. Immediately after his admission, OP No.2 conducted investigation including CT scan, x-ray, blood test etc and after examination it was found that the right wrist and left knee joint of the CW-1 were fractured along with external head injury. After seeing the above report OP No.1 found that complainant required immediate operation for conservative with plates and screw for Tibia of left leg and K-wire fixation on his right hand. Accordingly, OP No.1 performed the operation on 18-1-13 and fixed steel plate in the left leg and K-wire fixation on his right hand of the complainant respectively. But surprisingly the complainant after operation instead of getting relief he experienced and suffered extreme pain in his left leg and right hand. Matter was informed to the hospital authority as well as OP No-1. The hospital authority including the resident doctor and nurse of OP No.2 neglected the matter and behaved the complainant roughly and rebuked him. While the complainant informed his extreme pain to OP No.1 during his routine visit the OP No.1 expressed his grief but did not care at all and showed negligence instead of investigating the real cause of the pain of the complainant. OP No.1 simply prescribed few pain killers ignoring the real fact. Considering the negligence of employee of OP No.2 as well as OP No.1, CW-1 felt that he will not get relief at the hospital of OP No.2, he took discharge from the hospital of OP No.2 on 24-01-13 and immediately after taking discharge he took admission in the Srimanta Shankardev Hospital and Research Institute, Dibrugarh, where after thorough examination by Dr. Ananta Saikia i.e. CW-3 opined that one locked ortical screw found with one broken head, rest of the screw were loose and the fracture was unacceptable position for which CW-3 advised for revision fixation. CW-3 opined that steel plate fitted by the OP No.1 in the left leg of the complainant actually meant for right leg for which the pain of the leg of the complainant increased and thus, OP No.1 and 2 committed medical negligence.
Ext-1 to 26 filed by the complainant which include C.T. scan report, x-ray film, x-ray report and other relevant reports fully support the contention of the complainant when he was admitted in the hospital of OP No-2. OP No-1 Dr.Bipul Borthakur advised him to undergo all the tests and examinations which were conducted by the Diagnostics Centre of OP No-2. After scrutiny of the Ext.1 to 26 the OP No.1 opined for operation for conservative with plate and screw for Tibia of left leg and K-wire fixation of right hand and accordingly performed the operation of the complainant on 18-01-13. This part of evidence is admitted by the OP and as such, there is no dispute in this respect.
Now the point to be considered in this case is that after 18-01-13 on the day on which operation was conducted by OP No.1 whether the complainant suffered more pain on his left leg and right wrist instead of getting relief and also to be considered whether the OP No.1 and 2 were negligent and ignored all the principle of medical practice.
While going through the evidence of CW-1 the complainant, it is found that after conducting the operation complainant suffered extreme pain both his hand and leg which he informed to the hospital authorities, nurse and resident doctor and OP No.1, but the OP No.1 and other staff did not take the matter seriously and gave only few pain killers. Besides, the resident doctor and the nurses of the OP No.2 instead of showing sympathy misbehaved the complainant and rebuked him. OP No-1 instead of investigating the reason for his pain, negligently prescribed some pain killer which is harmful for human consumption and due to this reason the complainant (CW-1) took discharge from the hospital of OP No.2 on 24-01-13 and was admitted again at Srimanta Shankardev Hospital and Research Institute, Dibrugarh on the same day. Dr. Ananta Saikia, CW-3 while thorough examination found that the operation was not conducted properly due to which he suffered from extreme pain. Dr. Ananta Saikia, CW-3 found one locked ortical screw with broken head and rest of the screws were loose and the fracture was unstable, as such, he advised for re-fixation of both the fracture and accordingly he again operated the complainant on 26-01-13 and after the said operation CW-1 got some relief of his pain. Moreover, the steel plate fitted by OP No.1 in the left leg of the complainant was found to be fitted the plate of right leg as because it was embosed R (right) mark on the plate fitted on the left leg and therefore, it appears that the plate of right leg was fitted on the left leg. Ext-51 to 52 are copy of Discharge Certificate and Discharge Summary. One polythene packet contain those headless screw and steel plate where it was written ‘R’ are exhibited as Ext-53, which clearly shows that right side plate was fitted on the left side leg.
On the other hand, OPs claim that on 18-01-13 complainant was successfully operated and fixed the plate only after due electronically examining plates for suitably fixing it only conforming to the complainant’s injuries and on being fully satisfied with all the tests as well. After performing the said operation the complainant was regularly examined and subsequently it was observed that the injuries were improving for which on 24-01-13 the complainant was discharged from the hospital of OP No-2 with strict advice to take prescribed medicines and to revisit the hospital after one month for check up. There was no any ortical screw with broken head nor it was loose and the fracture was also not unstable as alleged by the complainant. According to them the best treatment was provided to the complainant with utmost care for healing up the injuries but it was the complainant who deliberately ignored and neglected to follow the medical advice.
So far the negligence of OP No.1 and 2 are concerned, while examining the CW-3 Dr. Ananta Saikia who is an expert in Orthopaedics it is found that he examined the complainant at Shankardev Hospital after being operated at the hospital of OP No.2 and found that the complainant could not move his leg and came with bandage on his left leg and right hand. When he opened the bandage of the leg he found severe pain, tensed and swelling and the leg was previously operated by Brahmaputra Hospital. The wound was dirty for which he washed the same and admitted him at Shankardev Hospital. He also examined the right wrist of the complainant and found it deformed. While examining the left knee he found it was unstable as well as abnormal movement. He also suffered from food drop of right side. The complainant was re-operated on 26-01-13 at Shankardev Hospital and reapplied the bandage on right wrist because the right wrist alignment was unstable. During operation of the left leg he found that the right side plate was applied on the left leg and the fracture was not holding properly. He also found broken headless screw fitted inside. So, he decided to remove the defective plates and screw on revision fixation. Ext-53 is the packets containing those broken screw and the wrong fitted plate along with other screw which he found during operation. He also operated the right wrist, removed previously applied pins as the reduction was not proper. After being operated with and revision fixation with plate and screw the complainant could move his toe and felt his wrist stronger. Subsequently, he gave one certificate vide Ext-51 regarding cause of food drop and advised him to go to some specialists for further corrective operation. Ext-71 is the certificate issued by him. CW-3 opined that the first operation done at Brahmaputra Hospital was defective, post operative care was also not adequate and was not done properly because bandage on his left leg was quite tight and only a portion of it was changed by making window due to which he was having severe pain in his left leg with inability to move the toe. While the bandage at Shankardev Hospital was removed the complainant felt better. The complainant was discharged on 30-01-13 after being recovery.
On meticulous scrutiny of the evidence of the complainant and CW-3 it is found that complainant was discharged from Brahmaputa Diagnostic and Hospital Limited on 24-01-13 with some prescribed medicines and advice which, appears from Ext-28. The complainant was again admitted in the Srimanta Shankardev Hospital and Research Institute on 24-01-13 on the very day of discharge from hospital of OP No.2 which appears from Ext-52 and from Ext-52, it also appears that the complainant was discharged from Srimanta Shankardev Hospital and Research Institute on 30-01-13 after being second operation. The findings of the CW-3 has been clearly mentioned in Ext.51 and 52. It was written in Ext-51 that at the time of admission the patient was found with (i) Volar Barten fracture (R) radius with unacceptable position after fixation by percutaneous k-wire, (ii) unstable fixation of tibial platear (left) with foot drop. Further from the said Exhibit it is found that treatment to be provided were (1) revision fixation of Distal radius with LCP additional K-wire which was done on 26-01-13 (2) revision fixation of (L) tibial plate with LCP which was done on 26-01-13. Accordingly, it appears that while the complainant could not bear his pain his left leg and right wrist he took discharge from the hospital of OP No.2 on 24-01-13 and immediately after discharge from the hospital of OP No.2, he took admission at Srimanta Shankardev Hospital and Research Institute and the doctor i.e. CW-3 during examination found that the operation done by the OP No.1 wrongly and fitted the plate of right leg in the left leg of the complainant. The fracture was not stable after operation. The hospital employee of OP No.2 did not take proper care of the complainant for which at the time of discharge the wounds were dirty and as such, were tensed and swelling for which CW-3 washed the wound and admitted him in the hospital. During the course of examination CW-3 found right wrist alignment was unstable, it was also found right side plate was wrongly fixed on the left side leg for which the fracture was not healing properly. There was also a broken headless screw inside the left leg for which CW-3 decided to remove the defective plates and screw on his revision fixation. Ext-53 is those plates and the headless screw which were recovered from the leg of the complainant. From the perusal of the plate contained in the Ext-53 it is found that ‘R’ was ambushed on the plate which means that the plate is meant for right leg. Whereas, while the OP No.1 fixed the said plate on the fractured parts of the complainant OP No.1 fixed the said right plate to the left leg which is clear amount of negligence on the part of OP No-1. Besides, from the perusal of the evidence of CW-3, the Doctor it is found that when he opened the bandage of the leg it was dirty and was also fastened tightly for which the complainant suffered severe pain both on leg and hands which appears to be negligence on the part of the employee of the OP No-2.
From the Ext-1 to 26 i.e. C.T. scan report, x-ray film, x-ray report and other relevant reports which clearly depict when the complainant was admitted in the hospital of the OP No.2 the OP No.1 advised him to undergo all the tests and examinations which were conducted by OP No-2. The OP No.1 after due scrutiny of above Exhibits particularly Ext-4 OP No.1 advised for conservative operation with plate and screw for Tibia of left leg and K-wire fixation of right hand which was completed on 18-01-13. OP No.1 though conducted the operation, but he acted in most negligent manner. The OP No.1 was negligent enough to fix plate in the left leg of the complainant which was meant for right leg and also showed grave apathy in letting screw used and applying one screw used and broken head. Such activities of the OP No.1 was unprofessional and unethical medical practice. Apart from these while the complainant reported about severe pain of his leg and hand OP No.1 instead of making investigation as to why the complainant was suffering from such severe pain, simply prescribed some pain killer which are effective to the health. At last the complainant finding no other alternative had to take discharge from the hospital of the OP No.2 and took immediate admission in the Srimanta Shankardev Hospital Research Institute on the same day which speak of the fact itself to be true otherwise complainant would have not taken discharge from the hospital of OP No.2 and took admission on the same day at the Srimanta Shankardev Hospital Institute and thus the circumstances are such that the negligence of the OP No.1 and 2 by the fact itself and is based on the principle of res ipsa loquitor (the things speaks of itself). As such, this requires the OPs to prove some reasonable explanation of all the incident which they failed. The OP stated that before the day of discharge i.e. on 23-01-13 x-ray of right wrist and left leg was done at the advice of the OP. The complainant has accepted the money receipt of x-ray dated 23-01-13 as Ext-48 and also exhibited x-ray plate as Ext-26 but the complainant failed to submit the Radiological report of the same which appears that the complainant failed to establish the claim of the complainant. In this respect it is to be noted that the complainant submitted all the documents such as x-ray plate i.e. Ext-26 and further the fact is supported by medical expert who conducted the refixation of the plates and the clips in the left leg and wrist of the complainant. Under the circumstances, I do not find any reason to disbelieve the evidence of the complainant.
Learned counsel for the OP in their argument submitted that the complainant did not adduce any expert evidence to disprove that OP failed to act reasonably in the given circumstances nor submitted any evidence to disprove that the treatment administered to the complainant by OP was not appropriate. Even the complainant failed to call the medical history of the patient recorded by Srimanta Shankardev Hospital nor any diagnostic report during the stay at Srimanta Shankardev Hospital to prove any negligence of the OP. In this regard OP referred the decision of the Hon’ble National Commission in Dr. Harkanwaljit Singh Saini v. Gurbax Singh (decided on 20-11-02) where it was held that in civil case burden of proving the case that the defendant was negligent rest on the plaintiff. It is not for the defendant to show that he was not negligent. The standard of proof required is the normal civil standard “on take balance of probabilities” which means more likely than not criminal standard “beyond reasonable doubt”. But in case of professional negligence a high standard of proof is necessary than the ordinary civil case which the complainant failed to prove. In this respect we have admitted that the medical history of the patient recorded by Srimanta Shankardev Hospital has not been exhibited but the medical expert i.e. CW-3 has sufficiently satisfied to the effect that the OP has failed to act reasonably in the given circumstances which is sufficient evidence to prove that the treatment administered by the OP was not appropriate and was negligent.
In the instant case the inference of negligence may be drawn from the circumstances that the complainant took discharge on 24-01-13 when he suffered extreme pain both in his hand and legs and the matter was informed to the employee of the OP No.2 and OP No.1, even then both the OPs did not take any care of the complainant and also not examined the matter of his severe pain the complainant could realise the negligence of the OPs which normally does not happen and the complainant was forced to take decision of taking discharge on 24-01-13 and was admitted again at Srimanta Shankardev Hospital and Research Institute on the same day and this fact itself prove the negligence of the OPs, which is based on the principle of res ipsa loquitur. The fact is also supported by CW-3 an Orthopaedics. In this given case, evidence of the complainant can take an inference of negligence from the circumstances such that the injuries which he complained as well as the circumstances under which he took discharge from the hospital proved the negligence of the OP. The doctors and hospital owes certain duties to their patient which in the present case failed to exercise due care and discharge their duties. Hon’ble Supreme Court in the case of Bolam vs. Friern Hospital Management Committee observed that negligence in law means this .. some failure to do some act which a reasonable man in the circumstances could not or doing of some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act result in injury, there is a cause of action. The OP No.1 who is highly qualified, esteemed and experienced professor of Assam Medical College, Dibrugarh of Orthopaedics Department is no doubt expected such type of negligence and while handling such a case will commit the negligence by fitting right plate to the left leg which shows that the operation done by OP No.1 was improper and was wrong in the administration of the treatment. In the circumstances as mentioned above, we find merit in this case filed by the complainant and found both OP No.1 and 2 negligent.
In view of the above findings it has been disclosed and prove materials of committing serious negligence, deficiency in service and illegal practice by the OP just to extract money from the poor people. In view of the above this Forum comes to a conclusion that the evidence led by the complainant have been able to disclose deficiency in service and illegal trade practice committed by the OP No.1 and 2 by not treating the complainant and perform the operation properly for which, OP No.1 and OP No.2 are held liable for payment of compensation jointly and severally. This Forum doth order OP No.1 and 2 jointly to pay Rs.1,20,000/- to the complainant with interest @9% per annum which he made expenses for the treatment and operation in the hospital of OP No-2. Further, OP No.1 and 2 are directed to pay Rs.60,000/- for giving unnecessary mental harassment, agony and pain to the complainant. The Forum further directed OP No.1 and 2 to pay Rs.10,000/- as cost of filing the instant case. The OPs are directed to pay the above amount through this Forum within one month from the date of this judgment.
Send copy of this judgment to OPs for compliance.
