DATE OF FILING : 01-02-2013. DATE OF S/R : 01-03-2013. DATE OF FINAL ORDER : 23-09-2013. Sri Nirapada Maiti, s/o. Dulai Maity, of 9, Paran C handra Das Road, P.S. Bantra, District – Howrah.---------------------------------------------------- COMPLAINANT. - Versus - 1. Dr. Dinesh Patel, c/o. Ashoka Polyclinic & Nursing Home Pvt. Ltd., 30/1/1, Moti Ghosh Lane, P.S. District –Howrah, PIN – 711101. 2. Ashoka Polyclinic & Nursing Home Pvt. Ltd., 20/1/1, Moti Ghosh Lane, P.S. & District – Howrah, PIN – 711101.------------------------------------------------------OPPOSITE PARTIES. P R E S E N T President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS. Member : Shri P.K. Chatterjee. Member : Smt. Jhumki Saha. 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 wherein the complainant has prayed for reimbursement to the tune of Rs. 8 lacs for the medical expenses borne by the complainant and compensation for Rs. 4 lacs for mental pain and for faulty operation and for litigation costs of Rs. 10,000/-. The case of the complainant is as follows : On 11-02-2011 the complainant fell on the road from a cycle and was feeling severe pain. He consulted two doctors who suggested that his hip-bone was seriously damaged and needed immediate operation. The complainant went to the nursing home of O.P. no. 2 on 14-02-2011 where the O.P. no. 1 Dr. Dinesh Patel conducted operation on his right hip-bone on 16-02-2011 and cemented Thompson on the injured hip. Thereafter he was discharged from the nursing home. Subsequently he started feeling severe pain on the operated portion and puss was oozing out from the stitch. He found one piece of gauge remained inside the operated portion and that was the reason for severe pain and infection. Thereafter the gauge was removed by the person who was conducting dressing work. The complainant again visited Dr. Patel ( O.P. no. 1 ). X-ray was done. Dr. Patel advised the complainant to visit the nursing home. But the pain did not subside in spite of taking medicine. Thereafter the complainant consulted Dr. Nirmalya Thakur on 30-11-2011 and Dr. Indrajit Sardar on 04-11-2012. They suggested further operation in two stages. Then the complainant consulted Dr. Sujay Kundu on 24-11-2011 for 3rd opinion who supported the opinion of Dr. Indrajit Sardar. Thereafter the complainant went to Christian Medical College, Vellore, on 27-12-2011 where he was medically checked up by Dr. Anil Thomas who suggested operation in two stages and for such operation he was required to stay for six months. But he was not prepared to stay there so he came back. Next he consulted Dr. Arindam Ganguly who did his first operation on 18-01-2012 and discharged him on 24-01-2012 after removal of prosthesis and debriment which was implanted by Dr. Patel at the time of first operation. The second operation was done by Dr. Arindam Ganguly on 07-05-2012 and the complainant was discharged on 09-05-2012 and at present the complainant can walk with the help of two elbow crutches. It is for the gross negligence on the part of the O.P. no. 1,Dr. Patel that the complainant had to move from place to place for medical advice and in this process, he has incurred huge expenses to the tune of Rs. 4 lacks. O.P. no. 1 took Rs. 76,000/- for conducting operation at the O.P. no. 2 nursing home. Hence the case. 2. The o.p. no. 1 Dr. Dinesh Patel in his written version denied on the material allegations made in the complaint and contended interalia that he never committed any medical negligence in conducting the operation on the complainant; that the complainant consulted him on 12-02-2011 for injury sustained on his right hip on 10-02-2011 and the O.P. no. 1 advised surgery for the same ; that surgery was done on 16-02-2011 at O.P. no. 2 nursing home ; that the complainant was discharged on 21-02-2011 in stable condition with advice to follow up after four weeks or SOS and dressing if required ; that the complainant was reexamined on 16-03-2011 and never in between ; that the complainant had cellulites in operated area for which the complainant was advised dressing and antibiotics ; that the complainant was never under his treatment till 02-10-2011 ; that there is no evidence that the gauge was left inside the operated area ; that the claim of Rs. 8 lacs as compensation is absurd and baseless. So the complaint should be dismissed. 3. The O.P. no. 2 in his separate written version contended interalia that allegations of treatment by Dr. Patel from 16-03-2011 till 02-10-2011 is baseless and this O.P. no. 2 in fact supported the written version of the O.P. no. 1 stating that there was no latches and negligence on the part of the O.P. no. 2. So the case should be dismissed. 4. Upon pleadings of both parties two points arose for determination : i) Whether the O.P. no. 1 is guilty of medical negligence ? ii) Whether the complainant is entitled to get any relief as prayed for ? DECISION WITH REASONS : 5. POINT No. 1 In deciding the case of medical negligence we cannot be unmindful of the widely respected Bolam Test. The basic principle relating to medical negligence is known as Bolam Rule. Justice Bolam laid down that the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In case of medical men, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. A doctor is not guilty of medical negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men who possess similar skills. 6. Though no expert report from a medical board was sought for to ascertain the decree of negligence as alleged on the part of the O.P. no. 1, the instant case being not as complicated as in case of death of a patient by way of adopting negligent methods. Now we are to scrutinize if the O.P. no. 1 Dr. Dinesh Patel was negligent in conducting the operation of the right hip-bone of the complainant on 16-02-2011. 7. It is persistent claim of the complainant that since after the operation and his discharge on 21-02-2011 he was feeling severe pain at the operated place and puss was oozing out from the stitch area. Subsequently the person who was in charge of dressing the affected part drew the remnant of gauge particle from the stitch area. 8. It is the further claim of the complainant that he again visited Dr. Patel ( O.P. no. 1 ) and complained of excruciating pain in the operated area. O.P. no. 1 prescribed medicine. In spite of taking those medicines, the pain did not subside though the complainant remained under the treatment of O.P. no. 1 till 2nd October, 2011. Thereafter he consulted Dr. Nirmalya Thakur on 30-11-2011 who advised x-ray of pelvis including both hip joint and another x-ray of right hip lateral part. On 04-01-2012 when the complainant visited Dr. Nirmalya Thakur he wrote a letter to Dr. Indrajit Sardar to examine the complainant as his pain did not subside. On the same date i.e., 04-01-2012 the complainant visited Dr. Indrajit Sardar who suggested further operation in two stages. For further opinion, the bewildered complainant consulted Dr. Sujay Kundu on 24-11-2011 who supported the opinion of Dr. Indrajit Sardar. 9. To dispel the doubt over the operation done by O.P. no. 1 the complainant visited Christian Medical College, Vellore, on 27-12-2011 after covering a long distance. He was medically checked up there and Dr. Anil Thomas suggested operation in two stages and for such two stage operations the complainant was required to stay in Vellore for six months. For financial stringency, he decided to come back to Kolkata. 10. Next he consulted Dr. Arindam Ganguly who conducted the first operation on 18-01-2012 and removed prosthesis and debriment implanted by Dr. Patel, O.P. no. 1, and discharged him from the West Bank Hospital on 24-01-2012. This Dr. Arindam Ganguly conducted second operation on the complainant on 07-05-2012 and discharged him on 09-05-2012. At present the complainant is free from any pain and can walk with the help of two elbow crutches. It is the pertinent to mention here that the dates as mentioned in the complaint suffers from some typographical mistake and it is detected when we consulted the original prescriptions and documents filed by the complainant. 11. The relation between a doctor and a patient is fiduciary. Whenever a patient relies on a doctor for operation, he is solely at the mercy of the doctor. On 16-02-2011 when the O.P. no. 1 conducted operation on the complainant, he never thought that some day he would be required to file a complaint before this Forum for redressal. In fact such thinking of a patient shall be beyond contemplation when he is operated. The complainant was attracted to the chamber of the doctor ( O.P. no. 1 ), for the reputation of the doctor. If he cannot get the relief after costly operation and acute pain in the operated area does not ebb for long 6/7 months, remaining under the treatment of the same doctor, the complainant cannot be to blame for filing a complaint against the O.P. no. 1. Subsequent bewilderment of the complainant in rushing to the chambers of 4/5 doctors after 02-10-2011 reveals that the operation done by the O.P. no. 1 was not successful and he was definitely negligent in conducting the operation. If we brash aside the complaint for the remnant of gauge inside the operated area, the negligent activity on the part of the O.P. no. 1 cannot be ignored as the maloperation is well established from the subsequent operation of Dr. Arindam Ganguly. 12. That the complainant was to be operated at two stages is uniformly opined by Dr. Nirmalya Thakur, Dr. Indrajit Sardar and Dr. Sujay Kundu. On scrutiny of the report of Christian Medical College, Vellore, we come across the same opinion of two stage operations by Dr. Anil Thomas. 13. What better instance of medical negligence can be than this ? It was not a luxury on the part of the complainant to visit number of chambers of doctors by paying handsum consultation fees and by undergoing subsequent two operations by incurring huge costs. 14. The argument put forward by the ld. Lawyer for the O.Ps. that a doctor is never presumed to be infallible and not operates to achieve success in every case he treats, is not disputed. But we are not ready to accept his submission that the patient is an uncontrolled diabetic and as such is prone to infection. Had the O.P., doctor was aware of such predicament, he ought to have taken safety measures before operation. We are to bear in mind that the patient, complainant, remained under his treatment for months together but did not receive any healing of pain in his operated area. He took medicines as per advice of the doctor systematically but no relief could be achieved. If it was on two stage operations, why the O.P. no. 1 failed to suggest the complainant of such double operation? Here lies the ingredient of medical negligence as the O.P. no. 1 who poses to be an expert in the Stream of Orthopaedics. 15. Therefore, we have no hesitation in our mind that the O.P. no. 1 was negligent in conducting the operation on the complainant. Simple denial on the part of the O.Ps. that the amount of fees as canvassed by the complainant was not charged from him, cannot divert the attention of the Forum. This is because the O.Ps. did not extend benevolent service or service free of charge to the complainant. The preponderance of probability is that the complainant was operated in lieu of considerable payment. The claim of the O.Ps. that the operation was done properly is just hollow. This is negatived from the subsequent treatment of the complainant. Therefore, we are of the view that this is a fit case where the prayer of the complainant shall be allowed as the medical negligence on the part of the O.P. no. 1 is established from the materials on record. Hence, O R D E R E D That the C. C. Case No. 29 of 2013 ( HDF 29 of 2013 ) be and the same is allowed on contest with costs against O.P. no. 1 and dismissed without cost against O.P. no. 2. . The O.P. 1, Dr, Dinesh Patel be directed to pay a sum of Rs. 4 lakhs to the complainant for committing medical negligence and for reimbursement of the total medical expenses incurred by the complainant since 16-02-2011. The o.p. no. 1 shall further pay a sum of 40,000/- for his journey it from Kolkata to Vellor with assistants and for medical consultation there. The O.P. no. 1 do further pay a compensation of Rs. 2,00,000/- for causing agony, unbearable pain and prolonged harassment to the complainant who is a senior citizen. The O.P. no. 1 do further pay a sum of Rs. 10,000/- to the complainant as litigation costs. The O.P. no. 1 do pay the total sum of Rs. 6,50,000/- to the complainant within 30 days from the date of this order failing the amount shall carry interest @ 10% p.a. till full satisfaction. 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. DICTATED & CORRECTED BY ME. ( T.K. Bhattacharya ) President, C.D.R.F.,Howrah. | 
