West Bengal

South 24 Parganas

CC/192/2013

SRI SAMIR MUKHERJEE. - Complainant(s)

Versus

DR. DIPAK ROY CHOWDHURY. - Opp.Party(s)

02 Feb 2017

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _192_ OF ___2013__

 

DATE OF FILING : 2.12.201420.5.2013                             DATE OF PASSING JUDGEMENT:  02/02/2017

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu

                                                                             

COMPLAINANT        :        Sri Samir Mukherjee,s/o late Atul Narayan Mukherjee of                                       

                                               22, Parui Paka Road, P.S. Parnashree, Kolkata – 700061.

 

-VERSUS  -

 

O.P/O.Ps                            :  Dr. Dipak Roy Chowdhury, (MBBS, D. Orth, MS. Orth), son of not known, residing at 27A/7, Brojomoni Debya Road, P.S. Thakurpukur, Kolkata – 700 008.

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President          

The short case of the complainant is that O.P is a practicing Doctor having professional degree of MBBS, D.Orth. MS.Orth ,having its clinic and chamber at Behala Bazar on Diamond Harbour Road and he also attached to different renowned hospitals like Kothari Hospital, Cancer Hospital, B.P Poddar Hospital and BMRI situated in and around Kolkata. It has further stated that complainant had accidentally suffered an injuries at his right leg patella due to sudden fall on 13.6.2012 and rushed to the clinic of the O.P for medical treatment, who advised the complainant for X-ray of Right Knee and complainant done the same from Sethi Diagnostic on Diamond Harbour Road, Kolkata. After examining the X-ray plate Doctor advised the complainant to admit either in Kothari Hospital or BMRI for operation where the O.P was attached as Consultant. It has further stated that complainant had insisted for BMRI Hospital as it is very close to both of the O.P and the complainant’s residence. Complainant admitted at BMRI on 13.6.2012 at about 11.35 am having registration no.12-13/0488 and Bed no.330 under the care and supervision of the O.P Doctor. It has further stated that complainant was totally relied on the assurance of the O.P that he would be totally recovered since he has expertise knowledge in similar cases and done similar type of operations successfully earlier ,for which complainant agreed for operation which was on 13.6.2012  at BMRI Hospital and after operation O.P assured the complainant and his family members that operation was successful and complainant’s family members paid all his fees for such operation and other ancillary charges to the said hospital in all Rs.80,000/- . Complainant was discharged on 15.6.2012. The copy of Discharge Certificate is marked “D” attached with this application. The operation note was “ CIRCLAGE AND FIGURE OF 8 WIRING RIGHT PATELLA DONE WITH GENERAL ANESTHESIA” . It has observed that while the complainant was under the observation and treatment of O.P Doctor, felt tremendous pain in his right leg Patella very frequently and rushed to the O.P Doctor and wanted to know the cause of such pain. The O.P immediately examined the operation portion and advised X-ray  and from X-ray it was revealed that “TEARING OF SS WIRE DUE TO IMPLANT FAILURE” on the basis of X-ray plate and report . The O.P further advised for second operation of Right Leg Patella for removal of wiring. Accordingly complainant admitted for second operation as per advice at BMRI Hospital on 5.9.2012 having registration no.12-13/1107 Bed no.302 and undergone operation on 5.9.2012 b y the O.P Doctor and finally discharged on 6.9.2012 and at that time complainant’s family member has to pay further Rs.40,000/- for all relevant costs. But the similar suffering of tremendous pain from right let was started along  with swelling. Complainant again informed the matter to the O.P Doctor who advised to consult Dr. Faizal on 24.9.2012 . But the family members having no confidence and due to nervousness avoided Dr. Faizal or the performance of O.P Doctor and consult Dr. Asoke Ray instead of Dr. Faizal. Thereafter on 21.9.2012 the complainant along with his family members visited the clinic of Dr. Asoke Ray and narrated the story of broken patella of right let and also the treatments done so long. Dr. Ray on perusal of all medical documents and papers opined that second operation was not successful , the Wire in Situ and Fragments were widely separated , Dr. Asoke Ray suggested for removal of wires and patellectomy, but Dr. Asoke Ray refused to do treatment of the complainant and sent the complainant to original Surgeon Dr. Dipak Roy Chowdhury, the O.P to do the needful. The copy of the said prescription is marked “E”. Thereafter complainant and his family members according to the advice of Dr. Ray visited Dr. Faizal at Kothari Hospital on 24.9.2012  and Dr. Faizal after examining had advised for admission on 3.10.2012 but due to unbearable pain , passing of puss from the operated area and deteriorating condition of the patient the family members of the complainant though it prudent to take immediate medical treatment of the complainant without waiting any further consulted Dr. Ayan Ray at CMRI on 25.9.2012 who after perusing the medical papers and past history and medical reports of fractured right knee patella injury of the complainant opined that Right leg Patella of the complainant was infected due to non-union of Fracture Right Patella-hardware in-situ and skin loss and loss of bone and developed ulcer of 5cm x  4 cm over knee and advised for immediate admission and operation to avoid further infection and loss of limbs and or other complications. Accordingly complainant was admitted in CMRI hospital under Dr. Anupam Golush on the advice of Dr. Ayan Ray on 27.9.2012. Photocopy of OPD is enclosed. The Doctors of CMRI Hospital to protect the further infection and/or imputation of right leg had conducted repeated operations to permanently remove the right leg patella and converted the same with flap from thigh muscles. The complainant finally discharged from CMRI on 19.10.2012 and complainant had to pay further Rs.2,66,006/- for such treatment. Xerox copy of discharge certificate of CMRI dated 19.10.2012 is attached . Thereafter, complainant followed up treatment as a case of fracture Right Patella Debridement and follow up case of Flap + Skin Grafting done at CMERI under Dr. Anupam Golash (Plastic Surgeon ) on 14.12.2012 and admitted there and skin grafting was done by Dr. Anupam Golash and complainant had to further incur Rs.36,484/- for such treatment. Complainant further stated that he has to pay Rs.50,000/- for keeping a medical attendant at home for the purpose of regular dressing of wound and attending the patient i.e. complainant as the complainant could not even move a single step without other help.

In this backdrop complainant submits that due to extreme carelessness and lack of expertise knowledge of Dr. Dipak Roy Chowdhury, the O.P, complainant had to suffer a prolong suffering together with huge financial losses. It has claimed that O.P Doctor is not only negligent but did not take reasonable care with sufficient expertise knowledge in the field of operation. Hence, the complainant prays for recovery of Rs.4,22,490/-  for the total costs incurred by the complainant towards the treatment  at different hospitals including operation and other charres , Rs.50,000/- towards cost of medical attendant, Rs.14,27,510/- towards compensation for suffering mental agony, suffering and pain, harassment, cost Rs.50,000/-.

The O.P contested the case by filing written version and denied all the allegations and also relied the reported judgment of the Hon’ble Supreme Court in 2009 CPJ 32 SC and wanted to convince this bench that the allegation is a complicated one and the facts are technical in nature. This type of dispute should be decided after expert opinion and evidence of the parties are required. It has further claimed that the complainant suppressed the material facts before this Bench. So, present case is bad in the eye of Law. It is the positive case of the O.P that complainant came to his Chamber sometimes in June 12, accompanies by his family members with the history of fall and injury to his right knee followed by inability to walk along with unbearable pain, for which complainant had admitted that he had suffered a cerebral attack for which his right leg was partially paralyzed and taking drugs for such paralysis and as such the left leg was weak with compromised features. Thereafter on clinical and radiological examination he diagnosed that the patient had suffered a fracture of right patella for which he was advised to get admitted in hospital or nursing home of his choice for proper investigation and further operative fixation of fracture. The O.P has denied that the choice of the hospital was due to any convenience of the doctor. The doctor also prescribed some medicine like  anti-inflammatory, analgesic, antacid etc as standard protocol to reduce pain.  It has further claimed that the patient had a past history of cerebro-vascular accident which resulted in paralysis of his right lower limb and he had to use support for walking. Even then he used to limp that is why he was in habit of sedentary life style for long time. It has stated that the patient admitted at BMRI , Thakupukur on 13.6.2012  after thorough investigation and pre-operative checking he was operated upon under general anesthesia by opening patellar fracture , fracture line was cleaned and the fractured patella was stabilized by tension band wiring using stainless steel wire suture and the surgery was uneventful. It has claimed that post operative x-ray which was done suggested satisfactory stabilization and in good position of the fractured part and patient was discharged from BMRI with advice of further post operative protocol on 15.6.2012 with the advice for follow up at regular intervals as per requirement. It has claimed that Limb was put in splint and skin staples were removed at two weeks with healed and dry wound. Limb splint were continued and muscle exercises were advised within splint. It has claimed that original x-ray was in custody of the complainant which was not disclosed before the Ld. Forum. The O.P as usual practice kept the x-ray plate which is annexed hereto as annexure A ,from where it will be crystal clear that the subject x-ray was absolutely perfect. It has claimed that patient was advised graded walking with splint on the operated limb and support in hand . Gradually external supports were discarded to only one stick in contralateral hand. The patient was also advised graded movements and exercise of knee avoiding any forceful passing movement. But the patient and the family members hurriedly wanted to get back knee movement as before and were under the false impression that the patient can do movement as before just after the surgery. Although patient and his family were specifically told not to hurry as forced passive movements might cause severe damage of the knee or the implants but the patient was walking and he was satisfied. But has further stated that after three months of the operation in around September 2012 patient attended the chamber with the complaint of pain , swelling , overlying skin gap in the operated knee and inability to walk and on clinical and radiological examination it was found that the stainless steel wire suture which was implanted had ruptured, which was possible only if the knee was tried to bend forcefully or there was an injury of high impact. So, complainant was again admitted and complainant was trying to get back his knee movements taking help of an untrained physiotherapist who is not expected to have any idea as to the requirement of orthopedic patients and also he did suffer an injury after which there was a massive increase in pain. The further case of the O.P is that in this circumstances he was advised antibiotic like Cefuroxime to take for at least five days and to get admitted for re-operation and re-exploration was done at BMRI on 5.9.2012 under general anesthesia but after surgery few superficial skin stitches loosened due to general weakness of the leg, the dressing was continued and subsequently the patient was advised to consult plastic surgeon Dr. Faizal at KMC for the skin related complications and since then the patient did not consult him. It is the positive case of the O.P that in the present case limb was paralyzed for a long years that means the muscles were weak and thin, resulted in less blood supply of the skin and subcutaneous tissue as compared to other normal and healthy limb which led to a compromise state of the general immune system of the area. It is the further case of the O.P that weakness and less use of the limb for long years resulted more thinning of already thin skin in front of patella and that skin was also injured before second operation by the pointed ends of the torn stainless steel wire and gap was created and repeated operation on the thin , injured and less vascularised skin which was open for at least five days and suturing the skin margins resulted in giving way few sutures and that small gap persisted and if it was not operated the condition of the patient could have been worse. It is the further case of the O.P that the condition then was under the territory of plastic surgery and he was referred to Plastic Surgeon to find out further treatment protocol and prescribe the protocol to the patient but the patient refused treatment and lost to follow up. It has stated that unfortunately inspite of best efforts patient suffered subsequently and it has claimed that complainant is absolutely cured now and is able to perform all movements save and except what has been compromised due to the cerebral attack. The O.P has denied all the allegations made in paragraph 1 ,2,3,4,5,6,7,8,9,10,11 save and except what are matters of record. The O.P doctor also stated that hardware in situ clearly indicates that the surgical implant of the hardware in around the broken bone was intact as per standard surgical protocol. It has further stated that infection for which the treatment was provided at CMRI and other doctors are known complications of any major surgery for which the surgeon cannot be held negligent by any stretch of imagination. Accordingly complainant had not come in clean hand. The O.P doctor further stated that complainant had undergone skin grafting which is mostly cosmetic in nature under Dr. Anupam Golash who was renowned Cosmetic Surgeon which conclusively profess that the treatment as was rendered by the O.P was as per well accepted medical norms and without negligence and strictly denied the claim of expenses of Rs.50,000/- for medical attendance and also denied paragraph 12 to 15 except which are on record . It has strongly claimed that O.P Doctor was never careless, negligent, and possessed education and experience to treat the complainant. Accordingly present complaint is absolutely misconceived and only to harass the O.P and should be dismissed with cost.

Points for determination is whether the O.P doctor  is negligent and did not discharge his duty properly or not.

                                                                        Decision with reasons

Needless to say that the case of the complainant was complicated one ,that is why it was explained to the complainant regarding risk involved in the surgery as well as in anesthesia including the possibility of death in one language, which is appearing in the consent letter.

Apart from that we peruse the discharge certificate along with the advice of discharge summary wherein all pros and cons are categorically mentioned by the O.P doctor and also directed to review at clinic after one week. This reveals from the discharge certificate dated 6.9.2012. It is well known to us that Hon’ble Apex Court had observed that the skill of medical practitioners differs from doctor to doctor . The very nature of the profession is such that there may be more than one course of treatment ,which may be advisable for treating the patient and negligent cannot be attributed to a doctor so long as he is performing his duty to the best of his ability and with due care and caution.

It is well known to us that where the complexities of the medical treatment as well as surgical procedures are required to be examined, it is desirable to have the expert opinion. Mere fact that patient suffers from adverse effect during or after surgery is not enough to take a frog-leap and say, it is a case of “ Res-ipsa-loquitor” . For example, in surgical operation of fracture Tibia-fibula resulting of an accident, there may sometimes takes place complications due to fat embolism that may prove to be fatal. However, it may not be prevented even though the operating Surgeon is an expert and well experienced Orthopedic doctor. Needless to say that the burden of proof in case of deficiency of service or unfair trade practice is upon the person who alleges it. It is also well known to us that complainant suffered from Patella of fracture  due to sudden fall and brought to O.P doctor who examined him and advised for immediate admission in Kothari Hospital or BMRI for immediate operation after consulting the X-ray plate and accordingly operation was done on 15.6.2012 and he was discharged. It is the further case of the complainant that he visited the O.P doctor for post operative checking. The O.P doctor also advised X-ray of the operated knee and directed the complainant to visit him after one month, which was done as per prescription of 25.7.2012 and thereafter examining the X-ray plate of the right knee it was detected that implanted wire was in teared condition and O.P doctor advised the complainant for second operation after consuming tablet Ceftum500 mg for 10 days. But we find that complainant was admitted on 5.9.2012 for second operation. From 25.7.2012 10 days elapsed on 5.8.2012. Accordingly, complainant was admitted on 5.9.2012 and from discharge certificate on 6.9.2012 it appears that diagnosis was post operation patella, operated on 15.6.2012 and operative note is appearing from the discharge certificate of BMRI Hospital dated 6.9.2012  that broken circlage wire, reduction and reosteosynthesis and figure of 8 wiring . It appears from the prescription dated 21.9.2012 that patient was not seen by the doctor. This is the prescription of another doctor who advised to report to the Surgeon who has operated and also observed that X-ray shows wires in situ fragment widely separated and another doctor Ayan Ray of CMRI Hospital has observed  on 25.9.2012 that it is a case of infected non-union – ® Patella with hardware in-situ and skin loss and loss of bone and thereafter complainant was admitted at CMRI Hospital on 27.9.2012 under supervision of Dr. Anupam Golash and after prolong treatment at CMRI Hospital the complainant had to undergo 8 serial operations and thereafter became stable and discharged on 19.10.2012 . After check up on 14.12.2012 follow up treatment complainant had undergone three more minor operations on the right knee wounds and skin grafting. Although in the BNA at para 13 it has argued by the ld. Advocate of the complainant that discharge certificate dated 19.10.2012 clearly shows and opinion of Dr. Anupam Golash  as history of patient at the time of admission is “ Implant failure”. But we find from annexure G ,the discharge summary that Dr. Anupam Golash diagnosed initially that “follow up case of fracture right patella , complaints of pain and discharge from wound at right knee. History of fracture patella (right) on 13.6.2012 . Due to implant failure (tearing of SS Wire) operation done again on 5.9.2012 ,since operation patient complaining of pain and discharge from wound at right knee , was attended at CMRI OPD and admitted for operation”.

            So, we find that Anupam Golash is a Surgeon of Plastic Surgery. He is not a Orthopedic Doctor. Thus he did Plastic Surgery what was needed. So, treatment was done for skin loss and loss of bon e to fill up the gap which is derived from the treatment sheet. It is true that Anupam Golash and Dr. Ayan Ray was not made a party as Proforma O.P. So, it is very difficult to hold that the treatment which was given by the O.P Doctor was in negligent manner or not. On the other hand, the argument as advanced from the O.P doctor  that post operative result was uneventful and there was a satisfactory improvement in the condition of the patient and patient was advised to follow up at regular interval as per requirement and patient was also advised graded movement and exercise of knee avoiding any forceful passive movement. But complainant had not denied that such advice was made to him. But said advice was not followed by the patient and his family members due to hurriness to get back the knee movement as before with the false impression that patient can do movement as before just after the surgery.  It has further stated that after about three months sometimes September 2012 patient attended the O.P with complaint of pain, swelling, overlying skin gap in the operated knee and inability to walk and on clinical and radiological examination it was found that the stainless steel wire siture which was implanted had ruptured which was possibly only if the knee was tried to bent forcibly. The complainant had then admitted that he was trying to got back the knee movement taking help of an un-trained physiotherapist. At that time complainant was advised antibiotic like Cefuroxime to take for at least five days and to get admitted for re-operation  and re-exploration was done at BMRI on 5.9.2012 which was perfect and the affected area was re-stabilized by tension band wiring using stainless wire suture . The O.P doctor has admitted that after few days of second surgery few stitches gave away as the skin over the front of patella is normally thin and devoid of subcutaneous fat, so more prone to injury delayed healing and gap. It has further stated that repeated operation on the thin injured and less vascularised skin and suturing the skin margins with tension resulted in giving way few sutures and that small gap persisted. It was not operated the condition could have been worse. The dressing was continued and subsequently the patient was advised to consult plastic surgeon Dr. Faizal at KMC. It has strongly claimed that re-exploration was absolutely perfect so far as the Orthopedic surgery is concerned. The O.P doctor has claimed in his written argument that in any type of intervention some percentage of complication even infection is accepted worldwide as normal complication. It is more common in cases of repeated operations on same site which is never accepted as negligence. The O.P doctor further argued that in the present case the limb was paralised for long years that means the muscles were weak and thin, resulted in less blood supply of the skin and subcutaneous tissue as compared to other normal and healthy limb which led to a compromised immune state of the area. It has strongly claimed that the condition was under the territory of Plastic Surgery for which he was referred to the Plastic Surgeon to find out further treatment protocol and he prescribed the protocol to the patient but the patient denied treatment and failed to follow up. It has claimed that the complainant has admitted to have been skin grafting which is mostly Cosmetic in nature under Dr. Anupam Golash who is a renowned Plastic Surgeon which conclusively proved that the treatment as was rendered by the O.P doctor was as per well accepted medical norms and without negligence. Regarding the claim of expenses of Rs.50,000/- and others are strongly denied by the O.P.

The further argument which is appearing from the BNA that complainant has replied in question no.26 as below “What is your present condition of the operated limb? The answer is “ I can walk but with difficulties”. The Ld. Advocate of the O.P Doctor wanted to prove that second operation was successful so far as Orthopedic norm is concerned ,since O.P Doctor is an Orthopedic Surgeon. Apart from that A1 annexure clearly proves that standard form consent was taken as a routine, wherein the nature of surgery is explained in Bengali which is mentioned in the consent Form. Regarding the mandatory tests like blood sugar, ECG before the Surgery ,the O.P has stated that tests required before the surgery was done and the test reports like ECG, X-ray , blood report was returned to the wife of the complainant who had taken the same by signing ,which clearly suggests that all necessary steps were taken before the surgery and original discharge summary has been disclosed in part by Xeroxing the front and back page ,which has been intentionally suppressed. So, discharge summary is annexed herewith and marked A2.

We have perused the same and found blood report, X-ray plats 1+4, BMRI Blood routine test, ECG were done mentioning in the second page and in the third page again X-ray was done. But unfortunately in the discharge certificate filed by the complainant as marked D clearly shows that missing of second page as well as third page bearing the official seal and signature. Non-production of the second page of the prescription by the complainant is a matter of suppression and distortion of the actual facts of the case ,for which adverse inference should be taken in view of section 114(g) of the Evidence Act.

Now the question is what is the opinion of the expert doctor. It should be mentioned here following the judgment of the Hon’ble Supreme Court, the O.P Doctor himself obtained expert report, evidence namely expert evidence of Dr. Kanchan Bhattacharya who is a consultant surgeon at CMRI , Advance Medical Research Institute, Calcutta, and Honorary Orthopedic Surgeon to the Hon’ble Governor of West Bengal who has referred the Campbell’s operative Orthopedic, 10^th edition page 2797 and clearly observed that surgery is according to the norms of Orthopedics and further stated that surgical technique of the O.P Doctor namely tension band wiring was common treatment of fracture Patella. Wiring techniques are used most often for transverse fractures, they can also be used in comminuted fractures. This Doctor also observed relying Campbell’s Operative Orthopedics 10^th Edition page 2810 that different fracture patterns require different activity restrictions, but it takes about 18 to 24 weeks . This Doctor also observed that breakage of wire is a known complication and does not indicate negligence. Patella is situated directly under the skin and does not have a lot of soft tissue coverage and hence irritation of the implants is a known complication. He has stated that Dr. Roy Chowdhury did right thing when he took out the wires and any skin deficiency resulting, do need to be covered and plastic surgery would be indicated . Complainant also put puts question  and in reply of question no.4 he did not speak anything regarding observation of X-ray plate before and after conducting the second operation and only stated “Prescriptions and reports clearly indicates the condition of the patient and in the cross examination he has stated that generally pre-operative check up, pre-anesthetic checkup, administration of pre-operative antibiotics and examining the x-ray o the patient is required before the surgery. He has also stated that post operative infection starts manifesting within 3 days from the date of surgery.

Now the expert opinion of Dr. Deb Kumar Mukherjee who is a practicing Doctor of Orthopedic is taken into consideration. Dr. Mukherjee has stoutly stated that he did not see the x-ray plate in question no.4. The vital question was in question no.9 ; whether Dr. Dipak Roy Chowhdury  should go for second operation or should go for extraction of torn wire and right knee patella after disclosing the chances of eminent danger followed by the second operation to the patient and his family members? The answer of Dr. Mukherjhee, who is aged about 78 years, is “Yes” he should go for second operation. This Doctor rightly said in questionno.12 as he did not see the x-ray plate, he cannot say regarding the decree of union or re-union. The Doctor has also replied in question no.12 that period of three months may not be long enough for adequate union in such a patient ,not to speak of complete union, which may take months or years. This Doctor in his reply in para 13 has rightly stated that one has to consider the benefits and risk of operating and also of not operating and leaving things alone. He has also stoutly stated that post operative infection starts manifesting within 3 days from the date of surgery. But in the case in hand the infection was not started within 3 days from the date of surgery.

The O.P doctor in his reply has stated that he has taken all precautions as per well accepted medical norms and mentioned the reason of the “Torn” in his written version. The O.P doctor has stated that the treatment sheet reflects that everything he has done. In this score we find that in relates to the Orthopedic matter O.P Doctor did all these things apart from the plastic surgery etc. which is done at CMRI by Dr. Golas ,although O.P “Doctor referred to Dr. Faizal who is in the same field of plastic surgery. But naturally complainant and his family members cannot set up their mind at that juncture to follow further direction of the O.P Doctor and rushed to elsewhere. But the treatment which was given that is the same field of surgeon by Dr. Golas and the discharge summary of the CMRI did not reflect that any Orthopedic matter was taken up.

Now we should turn our eyes on the expert report as achieved from the office of the Superintendent cum Vice Principal of IPGME & R SSKM Hospital on 6^th June, 2014. From the report of the Expert team of Doctors on examination on 21^st May, 2014 all  papers   , x-ray plates of operation of the complainant Samir Mukherjee , all  board members have to come to the following conclusion “The patient had displaced fracture patella of right side initially treated by standard surgical fixation on 13^th June, 2012 (1^st operation ) with accepted position of fracture fragments as seen in immediate post operative radiograph on `14^th June, 2012 followed by implant failure at 3^rd post operative month which was again treated by attempt of surgical re-fixation on 5^th September, (2^nd operation ) with accepted fixation of fragments as seen on radiograph of immediate post operative period dated 6^th September, 2012. Subseque4ntly with feature of re-displacement of fracture fragments as seen on radiograph of 22^nd September, 2012 with dehiscence of surgical wound, the patient was treated as per standard treatment protocol conservatively, failing which subsequent plastic surgical treatment with healing of the wound. Therefore, the disability of the patient cannot be ascertained from any fault of surgery.

On the basis of the said report of the team of doctors of the renowned Medical Institute, there was no negligence and standard of practice was adopted by the treating doctor. The complainant wanted to cross examine the said medical board which was allowed by this bench for the ends of natural justice. Thereafter, leaving the same complainant wanted to get further medical opinion from different hospital and thereby we have sent all the documents regarding medical treatment to the Department of NRS Calcutta and expert medical board was formed there and Doctors has observed that physical examination of the patient was not done by the Members. Only the documents, annexures and six x-ray plats are gone through. It has further observed that preservation of patella is usually preferred than its sacrifice in case of fracture of the patella  and thereafter has observed in point no.5 that “However, at the time of second operation i.e. 5.9.2012 patellectomy may have been considered instead of performing reduction osteosynthesis with figure of 8 wiring . It has further stated that last x-ray film reveals patellectomy done, no document showing the date of performing such operation is provided. The said report was challenged by putting some questions for cross-examination of the report of the Medical Board. The question nos. 10 and 11 was that due you consider the excision of patella (Patellectomy ) causes more mechanical and functional disability with some loss of power of knee joint thereby interfere with patient’s normal activities? Answer is “Yes”. Question no.11 was “Do you not consider that patellectomy causes more disability in weak lower limb than in normal lower limb? Answer is “Yes”. The vital cross-examination is question nos. 12 and 13 i.e. it is clear that infection breakage of stainless steel wire, etc. are the complications (though unwanted ) following operation for fracture patella so do you not believe that breakage of the stainless steel wire about three months after surgery was not due to the negligence of the surgeon?  Answer of the Board Medical College, Kolkata, is that “ If proper gauge of stainless steel wire is used, negligence can be ruled out”. Question no.13 was answered “Yes” . Lastly in question no.14 the answer of the Medical Board in reply of the medical board in cross examination that nature of surgeries depends on the individual patient including the complication at that time. It is not possible to frame all patients in one format of treatment.

We have discussed all the views of the expert . It is the observation of the Hon’ble Supreme Court in a reported decision in Civil Appeal no.6168 of 2008 that “ A simple lack   of care and error of judgment , for an accident, is not proof of negligence on the part of a medical professional, so long as a Doctor follows a practice acceptable to the medical profession of the day and he cannot be held liable for negligence merely because better alternative course of or method of treatment was also available or simply because a more skilled doctor would have not have chosen to follow or resort to the practice or procedure which the accused follow. Herein we find that better alternative course of method of treatment and the course of method of treatment ,whatever accepted by the Doctor, did on the basis of his standard practice following the practice acceptable to the medical profession of the day. So, the doctor cannot be held to be negligent , particularly when we have already observed that though further Orthopedical line of treatment was not done at CMRI and only plastic surgery was done. It is known to us that plastic surgery step by step is required ,that is why some operations in relates to the plastic surgery was done at CMRI by Dr. Golas, although it was suggested by the treating Doctor,O.P, which was not accepted for the reasons best known to the complainant.

So, the totality of the circumstances clearly indicates that while deciding the cases of medical negligence it would be appropriate to keep in mind that Doctor neither undertakes that he will positively cure the patient nor does he undertake to use the highest possible degree of skill . So, the case in hand against the medical profession , negligence means failure to act in accordance with the standard reasonably obtained by medical men at the relevant point of time and we find that O.P doctor exercised reasonable degree or care and skill and referred to Dr. Faizal for further treatment in relates to plastic surgery. Thus the cumulative effect of all the pros and cons clearly direct this bench to hold that O.P doctor is not at all negligent and he performed standard practice and skill and it is not beyond his line of treatment referring to Dr. Faizal who is a known Plastic Surgeon.

With that observation we are sorry to state that complainant has failed to prove negligence and deficiency in service of the O.P Doctor .

Hence,

                                                                        Ordered

That the C.C.no. 192 of 2013 is dismissed on contest but we do not propose to saddle the complainant by imposing 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 judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

           

Ordered

That the C.C.no. 192 of 2013 is dismissed on contest but we do not propose to saddle the complainant by imposing 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