DATE OF FILING : 02-01-2013. DATE OF S/R : 01-02-2013. DATE OF FINAL ORDER : 05-07-2013. Smt. Atasi Hazra, wife of Rabin Hazra, residing at 27/6, Fakir Chand Ghosh Lane, P.O. Santragachi, P.S. Bantra, District –Howrah, PIN – 711104. ------------------------------------------------------------------- COMPLAINANT. - Versus - 1. Dr. Jagannath Bhattacharyya, People’s Medi-Treat Pvt. Ltd., 262, Netaji Subhas Road, Howrah – 711101. 2. Manager, People’s Medi-Treat Pvt. Ltd., 262, Netaji Subhas Road, Howrah – 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 compensation for medical negligence to the tune of Rs. 9,50,000/- and litigation costs of Rs. 10,000/-. 2. Briefly stated the fact of the case is that the complainant together with her husband took her eight years old son Abhrajit to O.P. no. 2 nursing home for treatment of the fractured left arm. Abhrajit received fracture on 30-12-2010. On the same date O.P. no. 1 Dr. Jagannath Bhattacharya conducted the treatment after primary x-ray and examination. Thereafter Abhrajit was taken to the operation theatre and after applying full anesthesia the O.P. no. 1 medically set the fracture arm and administered plaster. The act of setting took nearly 45 minutes in the senseless condition of Abhrajit. When after the due dates the plaster was open it was learnt that the setting was not at all properly done as the bone of the elbow was visibly displaced. When it was mentioned before the doctor by the complainant the O.P. no. 1 assured them that the setting was properly done and the problem would be overcome after physiotherapy exercise. Accordingly as per doctor’s advice the assistant of the doctor one Ganesh was engaged for physiotherapy. In spite of regular physiotherapy exercise, the matter worsened and Abhrajit started feeling excruciating pain on the affected area. When the complainant contacted the doctor the O.P. no. 1 advised to continue the physiotherapy and there was no other option for betterment. Complainant accordingly continued the physiotherapy with the help of Ganesh. 3. Finding no betterment and relief to her child who was languishing with unbearable pain, as bewildered mother the complainant consulted Dr. Dinesh Patel and thereafter the Institute of Child Health Care Unit and subsequently SSKM Hospital. All the doctors suggested for further operation and opined that only physiotherapy cannot care the defect of the setting. 4. Ultimately the complainant visited Christian Medical College Vellore on 05- 04-2011. Abhrajit was admitted in the Paediatric – Orthopaedic Department. After preliminary examination operation was conducted and Abhrajit was discharged with direction to revisit the Vellore Hospital for follow up treatment. The doctors there further advised that a second operation is a necessity for removing the inner materials. Hence the case. 5. The O.P. no. 1 in his written version contended interalia that the O.P. did not operate the patient on his injured arm, rather close reduction was done and plaster casting was applied on the left upper limb on 30-12-2010 ; that after four weeks plaster casting was removed and the patient was strictly advised to physically make active movement on the injured part ; that no massage should be done on the affected area ; that there was no medical negligence on the part of the O.P. ; that the setting was perfectly done ; that the patient was under his treatment till 18-02-2011 ; that the plaster casting was open on 07-02-2011. There is no negligence on his part, the complaint should be dismissed. 6. The O.P. no. 2 in his written version contended interalia that the allegations are totally absurd, baseless and motivated ; that the O.P. no. 1 selected the O.P. no. 2 nursing home for the medical treatment. So he has no liability for any medical negligence as alleged. 7. Upon pleadings of both parties two points arose for determination : i) Is there any deficiency in service on the part of the O.Ps. ? ii) Whether the complainant is entitled to get any relief as prayed for ? DECISION WITH REASONS : 8. Both the points are taken up together for consideration. Ld. Lawyer for the O.P. relying on the decision of the Hon’ble Apex Court as reported in 2003 Volume VIII Supreme Court Cases 731 argued that negligence does not always mean absolute carelessness. Negligence is a failure to observe for the protection of the interest of another person, the degree of care, precaution and the vigilance which the circumstances justly demand. According to him no absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence and lack of it can be infallibly measured in a given case. He further argued what constitutes negligence varies under different conditions. He further argued that there was no medical negligence on the part of the O.P. no. 1 rather the application of massage deteriorated the situation. He further argued that no operation was conducted on the fracture arm of the minor rather the O.P. no. 1 chose the treatment of close reduction without percutaneous pinning followed by plaster casting which is absolutely common standard method of treatment accepted universally in medical parlance. According to him the negligence on the part of the complainant made the situation worse, if any. 9. Be that as it may, by and large a housewife, not being a medical expert cannot be expected to describe the terms of medical treatment method accurately. In the case at hand if the complainant states in her complaint that the left arm of her son Abhrojit was operated by the O.P. no. 1, we are to understand that close reduction was done on the fracture affected arm. As Abhrajit was taken to operation theatre on 30-12-2010 and setting process took nearly 40 minutes after robbing her sense by applying anesthesia, the complainant as a mother of ordinary prudence took it for granted that ‘operation’ was conducted on the affected elbow of Abhrajit. 10. This ignorance on the part of the complainant who could not engage a lawyer for financial stringency cannot ipso facto place the O.P. in a comfortable position nor any benefit can be reaped for such malappropism. 11. Likewise, the loud proclaim on the part of the O.P. no. 1 over the user of the word ‘massage’ in the medical paper of the Christian Medical College Vellore under column ‘History’ cannot in fact establish that the O.P. was not wrong in the treatment of Abhrajit. The claim on the part of the O.P. no. 1 that the application of ‘massage’ set the correct treatment at naught is just bogus and cannot merit acceptance. This is because the report of the CMC, Vellore, in the column of ‘Diagnosis’ carries the precious opinion in capital letters – “Malunited Supracondylar Fracture Left Humerus Ith Myositis Ossificans.” This means the fracture bone was found malunited on 5th April, 2011 though the O.P. no. 1 conducted the close reduction process on 30-12-2010. Had the setting of fracture bone by the O.P. no. 1 would have been proper and correct, after four months it could not be found as malunited. The blame as cast upon the complainant for alleged application of massage cannot have any leg to stand upon. In fact the cry on the part of the O.P. no. 1 that the complainant applied massage and so the situation was made worse is just the attempt to shift the blame of the so called expert to a commoner. Nowhere in the four corners of the complaint there is mention of the word ‘massage’ or application of any ointment by the complainant. The O.P. no. 1 in his medical prescription dated 07-02-2011 the date of removing the plaster, noted – ‘no massage’. Naturally the question of rubbing the affected area with any ointment by the complainant does not arise. 12. Though it is not noted in his prescription, the complainant categorically stated on the dates of argument that the O.P. no. 1 advised for physiotherapy exercise with the help of physiotherapist. The complainant further stated that the doctor ( O.P. no. 1 ) called one Ganesh, physiotherapist for conducting the exercise on the minor. Accordingly the physiotherapist conducted the exercise that means the movement of the arm of Abhrajit. Once during argument we directed the complainant to produce the child Abhrajit. Accordingly Abhrajit came and we called him in our ejlash and wanted to know how the physiotherapist conducts the physiotherapic treatment on him. He demonstrated how the movement of the arm upto elbow is done as per the advice of the physiotherapist. On our pinpointed question if the affected area is rubbed with any ointment, Abhrajit replied no such occasion did arise. 13. In fact the dispute over the fact of massage stemmed from the noting of the CMC, Vellore, in the report sheet. It is noted there “ With a massage for a period of 10 days under the column history”. In fact the complainant repeatedly stated that there is always a communication problem with the doctors in Vellore and they perhaps misunderstood her description. That means physiotherapy exercise was wrongly understood by the doctors as massage or she might have used the word ‘massage’ to interpret the physical movement of the arm. 14. We are to bear in mind that the complainant never premeditated the filing of the instant complaint against the O.P. no. 1 upon whom she reposed faith for 38 days. Even the complainant never thought of any other doctor during the period of treatment by O.P. no. 1 upon whom she reposed faith and confidence. Is it believable that the complainant in contravention to the advice of the doctor could engage a physiotherapist out of her own volition ; or apply massage with the help of some ointment ? In fact, the claim on the part of the O.P. that the bone setting was all right but the act of alleged massage marred the situation, cannot be taken for granted. This is because the patient Abhrajit was under treatment of the O.P. no. 1 for 11 days after the removal of the plaster. The plaster was opened on 07-02-2011 and the complainant attended his chamber next on 11th February and last on 18th February. As Abhrajit was feeling agonizing pain after removal of the plaster on 7th February, 2011, the complainant again visited the chamber of the O.P. no. 1 on 11th February. He did not pay heed to the problem of Abhrajit and directed to continue the physiotherapy treatment as usual. 15. We are constrained to hold that as inconsolable mother the complainant took the right decision to severe fiduciary relation with the doctor ( O.P. no. 1 ) at the right time. Had she continued the treatment of Abhrajit under O.P. no. 1 the malunited humerus bone would have remained at the same position plunging Abhrajit in further pain and agony and even he would have been disabled permanently on his left arm. She went to Dr. Dinesh Patel on 20-02-2011 and thereafter to S.S.K.M. Hospital. The doctor after consulting the x-ray plate on 23-02-2011 opined that the humerus of the left arm was malunited. Likewise, the complainant again consulted the Institute of Child Health on 4th March, 2011, they also opined that the humerus bone was distorted. 16. Therefore, we come to learn that the complainant last visited the O.P. no. 1 on 18-02-2011 when he advised to continue the physiotherapy as the setting of the bone was all right, as if as an expert orthopaedic he cannot do any wrong. Just after two days she consulted Dr. Patel and after three days doctors of S.S.K.M. Hospital and after 10 days to Institute of Child Health Care Unit. All the doctors opined for resetting of the fracture bone as the humerus bone of the left arm of Abhrajit was found malunited. 17. Without taking further risk the complainant visited Christian Medical College at Vellore on 5th April, 2011 who opined that left humerus was found malunited. They conducted operation on the left elbow and the fracture humerus was fixed with crossed K wires and thereafter recommended medicines with the direction to revisit for follow up treatment and removal of the wires. Currently Abhrajit has been recovering fast. We found him moving his left arm almost freely when he visited our ejlash. 18. At the time of filing the instant complaint the complainant showed us a bunch of railway tickets to justify her 10 times visit to Vellore. She has also produced nine appointment slips of different dates of the Christian Medical College Vellore ranging from 1st April, 2011 till 11-10-2011 by incurring huge monetary expenditure. 19. It is, therefore, amply proved that the treatment or the close reduction setting of the fracture in the left arm of Abhrajit by O.P. no. 1 was wrong and the boast over his expertise is just hollow. In her written argument the complainant stated that all the doctors consulted subsequently opined for further operation or setting as the humerus bone was malunited. If arguably we brush aside the statement of the complainant, the treatment conducted by C.M.C., Vellore, uniquely establish that the treatment of Dr. Jagannath Bhattacharyya ( O.P. no. 1 ) was wrong and the C.M.C., Vellore, had to conduct a major operation on the left arm of Abhrajit to repair the wrong done to him by O.P. no. 1. What better instance of medical negligence can be than this ? We have no hesitation in our mind that the O.P. no. 1 committed gross medical negligence and callousness in not properly setting the fracture bone and plunging the minor in deep trouble as the agonizing pain never subsisted. It is the blessing of the almighty that Abhrajit has been recovering fast for the proper treatment of the C.M.C., Vellore. If the O.P. no. 1 would have conducted proper treatment, the family of the complainant would not have suffered huge monetary loss for the recovery of the child. We are of further opinion that Abhrajit very narrowly escaped the fate of permanent disablement for the timely treatment of the C.M.C. Vellore Hospital. Therefore, we are of further opinion that this is a fit case where the prayer of the complainant shall be allowed in toto as the complainant’s persistent claim of medical negligence committed by O.P. no. 1 stands vindicated. 20. Before parting with the record we must opine that all doctors are not God on earth. We further opine that only for such remissness and carelessness on the part of a few doctors the plight of the patient continues and they rush for better treatment either to Vellore or to any other better hospital in South India. We cannot dispute that the patients get relief from such hospitals. The case of Abrajit is the glaring example. 21. In awarding compensation we must bear in mind that the complainant had to run from pillar to post for medical relief for her minor son. Even she was compelled to visit Vellore for 8 times from her residence covering nearly 1800 km. That means 3600 km. for both way journey. If we multiply 3600 km. for 8 times we get nearly 28800 km. in total. Railway tickets are not easily available specially for Chennai for rush of the patients throughout the year. The complainant had to collect the both way journey tickets presumably with tremendous difficulty or from Tatkal facility paying much more from the actual fare. In fact Vellore became her 2nd home since 05-04-2011. 22. Considering such prolonged plight we think that a sum of Rs. 5 lakhs shall be reasonable and justified for medical negligence and reimbursement of the total medical expenses incurred by the complainant since 30-12-2010 till date. 23. A further sum of Rs. 1,50,000/- shall be sufficient as compensation for the journey of the family of the complainant with Abhrajit from Kolkata to Vellore for 8 times. 24. The complainant is further entitled to a compensation of Rs. 1,50,000/- for their stay in Vellore on every occasion as required for the medical treatment of Abrrajit. 25. A further sum of Ra. 1 lakh shall be awarded for causing agony, pain and prolonged harassment to the complainant and her son Abhrajit. 26. The O.P. no. 1 be further saddled with a further sum of Rs. 50,000/- for follow up treatment and further operation for removal of the K-wires of Abhrajit in Vellore Hospital. 27. She shall also be entitled to a litigation costs of Rs. 5,000/-. Accordingly both the points are disposed of. Hence, O R D E R E D That the C. C. Case No. 1 of 2013 ( HDF 1 of 2013 ) be and the same is allowed on contest with costs against O.P. no. 1, Dr. Jagannath Bhattacharyya and dismissed against O.P. no. 2, People’s Medi-Treat Pvt. Ltd. ( nursing home ). . The O.P. 1 be directed to pay a sum of Rs. 5 lakhs to the complainant for committing medical negligence and for reimbursement of the total medical expenses incurred by the complainant since 30-12-2010 till date. The o.p. no. 1 shall further pay a sum of 1,50,000/- for 8 times ( 28800 Km. ) journey with Abhrajit from Kolkata to Vellore. The O.P. do further pay a compensation of Rs. 1,50,000/- for the stay of the complainant with her ailing son in Vellore on every occasion ( 8 times ) as required for the medical treatment of Abhrajit. The O.P. no. 1 shall further pay a sum of Rs. 1 lakh for causing agony, unbearable pain to Abhrajit and prolonged harassment to the complainant. The O.P. no. 1 do further pay a sum of Rs. 50,000/- to the complainant for follow up treatment and further operation for removal of the K wires of Abhrajit in Vellore Hospital. The O.P. no. 1 do further pay a sum of Rs. 5,000/- to the complainant as litigation costs. The O.P. no. 1 do pay the total sum of Rs. 9,55,000/- to the complainant within 30 days from the date of this order failing the amount shall carry interest @ 12% 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 ) ( T.K. Bhattacharya ) President, C.D.R.F.,Howrah. President, C.D.R.F.,Howrah. ( Jhumki Saha ) ( P. K. Chatterjee ) Member, C.D.R.F.,Howrah. Member, C.D.R.F.,Howrah. | 
