Date of Filing: 5/7/2016
Order No.44 Dated – 30 .5.2018
F I N A L O R D E R/J U D G EM E N T :-
Shri Sibasis Sarkar, Ld. President.
The complainant Shri Kajal Karmakar has filed the present petition of complaint under section 12 of the Consumer Protection Act, 1986, wherein he has stated that he met with an accident on 18.05.2015 and he sustained severe injuries which included broken shaft of left femur. Complainant was admitted at Sadar Hospital, Jalpaiguri and was medically treated as an in-patient from 18.05.2015 to 22.05.2015. The complainant was referred to North Bengal Medical College & Hospital for better treatment and he was discharged from Sadar Hospital on 22.05.2015 in the morning. As per advice of O.P. No. 1/Dr. Kamalesh Biswas the complainant was admitted at Siliguri Nursing Home at Siliguri on 22.05.2015, where the complainant was operated on 23.05.15 by O.P. No.1 and was subsequently discharged from Siliguri Nursing Home on 24.05.2015. As per advice of O.P. No.1 the complainant was admitted at Touch Nursing Home at Jalpaiguri on 24.05.2015 and he was under the treatment of O.P. No.1 from 24.05.2015 to 26.05.2015. The complainant was discharged from Touch Nursing Home on 26.05.2015. Thereafter the complainant visited O.P No.1/Dr. Kamalesh Biswas at Touch Nursing Home, at Jalpaiguri, on 02.10.2015. At that time the complainant told O.P No.1 about the persistent pain and shortening of left leg. He also told O.P No.1 that he is unable to stand on his feet without the help of crutch. Subsequently the complainant visited O.P. No.1 for several times. On 02.03.2016 the complainant again visited Dr. Kamalesh Biswas at Merina Nursing Home, Jalpaiguri wherein Dr. Kamalesh Biswas removed screw from the implant. Due to negligence in operation by O.P. No.1 the left leg of the complainant has been shortened and the complainant is suffering from persistent pain and discomfort. The complainant told about his complications to O.P. No.1, but he refused to do anything. As such the complainant has been compelled to file the present case as per prayer mentioned in the petition of complaint.
The Proforma–O.P. No.2/Chief Medical Officer (Health), Sadar Hospital Jalpauguri was contesting the case by filing Written Version. But subsequently he left the case, as such the case has been heard ex-parte against proforma-O.P. No.2. The O.P. No.1 and Pro-O.P. Nos. 3, 4 and 5 are contesting the case by filing separate Written Versions denying all the material allegations contained in the petition of complaint, contending inter alia, that the case is not maintainable in its present form and prayer. There is no cause of action for the present case. The specific case of the O.P. No. 1/Dr. Kamalesh Biswas is that the complainant Kajal Karmakar, aged 45 years, had been admitted in Jalpaiguri Sadar Hospital on 18.08.2015 with a history of ‘Badly comminuted inter-trocharteric fracture of femur’. As this type of fracture can not be dealt with at Jalpaiguri Sadar Hospital due to lack of proper infrastructure, so the complainant was referred to North Bengal Medical College & Hospital, Siliguri. On 22.05.2015 the patient party took the referral. As per request of the complainant, the O.P. No.1 agreed to operate the patient at Siliguri. The patient was admitted in Siliguri Nursing Home on 22.05.2015 and was operated on 23.05.2015 by O.P. No.1 himself along with his ‘Expert’ team of eminent doctors. Operation was conducted as per the line of treatment and then the patient was discharged on 24.05.2015 from Siliguri nursing Home and was advised to get admitted in Touch Nursing Home, Jalpaiguri. From Touch Nursing Home the patient was discharged on 26.05.2015. On 02.10.2015 i.e. on/after 4th months of operation, it was found that the fracture of the complainant was almost united and he was advised to do normal activities without prescribing regular pain-killers. Subsequently when the patient complained of persisting pain the O.P. No.1 advised for X-ray which revealed one screw had been backed out. On 02.03.2016 the said screw was removed in day care basis at Merina Nursing Home. There was shortening of the limb, as because the complainant did not follow the instruction of O.P. No.1. The operation was done by a team of eminent and Expert Specialist doctors which included the O.P. No.1. The operation was done as per the medical science. There was no negligence or deficiency in the said operation. Thus, there was neither any negligence, nor any deficiency in service on the part of O.P. No.1. As such the complainant is not entitled to get any relief, as prayed for and the case is liable to be dismissed.
The Pro-O.P. Nos. 3 to 4 have also prayed for dismissal of case.
Considering the rival pleadings of both the parties the following points have been framed.
POINTS FOR CONSIDERATION
1) Was there any negligence in the operation conducted by O.P. No.1?
2) Was there any deficiency in service on the part of O.P. No. 1?
3)Is the complainant entitled to get any relief, as prayed for?
4) To what other relief or reliefs is the complainant entitled?
DECISION WITH REASONS
It may be mentioned that in the present case as per prayer of the complainant one medical report has been obtained from the Medical Board formed by the Superintendent, Sadar Hospital, Jalpaiguri. Subsequently as per prayer of the complainant one medical report was also obtained from the Medical Board formed by the Medical Superintendent-cum-Vice Principle, North Bengal Medical College & Hospital at Siliguri, District Darjeeling. It may further be mentioned that in the instant case neither the complainant, nor the opposite parties adduced any oral evidence. They also did not file any affidavit-in-chief. However, as the present case is triable by summary procedure, so as per submission of both parties we accepted the petition of complaint along with the documents annexed therein, supported by affidavit and the written version along with the documents annexed therein, supported by affidavit as the evidence on affidavit on behalf of the respective parties. We have carefully perused the medical report submitted by the Medical Board formed by the Superintendent, Sadar Hospital, Jalpaiguri and the medical report submitted by the Medical Board formed by the Medical Superintendent-cum-Vice Principle, North Bengal Medical College & Hospital. We have also carefully perused the B.N.A. filed by both sides and the decisions cited by them. We have also carefully heard arguments of both parties in full and at length.
Point Nos.1 and 2 :-
These points are taken up together for the sake of convenience and combined discussions.
It is the case of the complainant that due to the negligence of operation
conducted by O.P no.1/Dr. Kamalesh Biswas, his left leg has been shortened and he is also suffering from persistent pain in his left leg.
On the other hand, the O.Pno.1 raised objection.
It is the admitted fact that the complainant met with an accident on 18.5.2015, as a result of which the complainant sustained comminuted fracture of femur of left leg. So, the complainant was admitted at Sadar hospital, Jalpaiguri, on 18.5.2015 and was medically treated as in-patient till 22.5.2015. Thereafter the complainant was referred to North Bengal Medical College & Hospital for better treatment. The O.P no.1 in his written version has stated that after his discharge on 22.5.2015, as per request of the complainant, the O.P no.1 agreed to operate the complainant at Siliguri. The O.P no. 1 has also admitted that operation was conducted by him at Siliguri Nursing Home with the assistance of Expert team of eminent doctors on 23.5.2015. The O.P no. 1 has also admitted that the complainant complained before him about shortening of left leg and persistent pain. So, the question is whether there was any negligence in the operation of the complainant conducted by O.P. no.1. It has been decided by the Hon’ble Supreme Court, reported in II(2007) CPJ, page-25(Kishori Lal
–Vs –ESI Corporation) that there are three ingredients of medical negligence:- 1) Existence of duty to take care; 2) Failure to attain that standard of care and 3) Damage suffered on account of breach of duty.
Ingredient No. 1 - Existence of duty to take care – It is the admitted fact that the complainant met with an accidence on 18.05.2015 and sustained comminuted fracture on shaft of left femur. He was admitted at Sadar Hospital, Jalpaiguri on 18.05.2015 and was discharged on 22.05.2015 and he was referred to North Bengal Medical College & Hospital for better treatment. But, after his discharge, the complainant without going to North Bengal Medical College & Hospital preferred to be operated by O.P. No. 1/ Dr. Kamalesh Biswas. So, it can be presumed that the complainant had every knowledge about the skill of O.P. No.1 as a reputed Orthopedic Surgeon and had also faith on him. The O.P. No.1 in his Written Version in Para 13 (page 8) has stated that as per request of the complainant he agreed to conduct operation of the complainant at Siliguri Nursing Home. So, there was existence of duty to take care by O.P. No. 1. In order to discharge his duty the O.P. No. 1 conducted operation of the complainant at Siliguri Nursing Home on 23.05.2015 with the assistance of Expert team of eminent doctors viz., Dr. Somsubhra Paul (M.B.B.S, DNB Ortho.) and Dr. S. K. Shaw (Anesthetist) with two other efficient and trained Assistants. O.P. No. 1 in Para 13, page 13 of the Written Version has stated that the implant used was modern and most suitable for the particular fracture sustained by the complainant. In para 13, page 5 and 6, of the Written Version, the complainant has also stated that prior to operation the patient and patient party were properly explained in their mother tongue (Bengali) regarding the treatment procedure as well as its outcome which they agreed (Fracture Union may be delayed, there may be mal-union, and limb may be shortened, revision surgery may be required). Thus the O.P. No. 1 took care to disclose everything to the complainant relating to the post-operation problems. The O.P. No. 1 also advised the complainant to get himself admitted at Touch Nursing Home, Jalpaiguri after his discharge from Siliguri Nursing Home. So, the O.P. No. 1 also took care so that the complainant can get post-operation treatment at his home-town at Jalpaiguri at a low cost. From the discharge certificate issued by Siliguri Nursing Home Private Ltd., we find that the O.P. No.1 gave some advices like not to bear weight and to take bed-rest for one and half months.
As per decision of the Hon’ble Supreme Court, reported in AIR 1969 S.C., page 128 (Dr. Lakshman Balakrishnan Joshi-Vs-Dr. Trimbak Bapu Godbole & another) (referred in the case of Poonam Varma-Vs-Ashwin Patel & others reported in 1996 AIR 2111 S.C.) and 1996 S.C.C. (4), page 332 that (a) there was a duty of care in deciding whether to undertake the case. In the instant case the O.P no.1 discharged his said duty by agreeing to conduct operation of the complainant. He also decided to operate at Siliguri Nursing Home which is a most suitable and sophisticated nursing home according to him, so that the operation can be made successful; (b) there was also a duty of care in deciding what treatment to give. The O.P no.1 discharged his duty by deciding to use modern and most suitable implant for such type of comminuted fracture. So, the O.P no.1 decided to give best treatment to the complainant; (c) there was also a duty of care in the administration of that treatment. The O.P no.1 discharged his said duty by disclosing the patient and the patient party about the post-operation problems. The complainant gave consent of operation after knowing about the said problems. The O.P no.1 conducted the operation with the assistance of Expert team of eminent doctors. The O.P no.1 after operation advised the complainant to take bed-rest for 1.1/2(one and half) months and not to bear weight. He also advised the complainant to get himself admitted at Touch Nursing Home, Jalpaiguri, so that the complainant can get follow-up treatment at Jalpaiguri at a low cost. Thus, there was no breach of duty to take care on the part of the O.P. no.1.
Ingredient Nos. 2 and 3 - The O.P. No. 1 in para-12 (page 4 and 5) of his Written Version has stated that he completed his M.B.B.S. Degree from B.S. Medical College & Hospital in the year 2005 and thereafter he obtained diploma in Orthopedics from Calcutta Medical College & Hospital in the year 2007-2009. He held the post of Senior Residentship in the Department of Orthopedics since January, 2010 in ESI Hospital. The O.P. No. 1 was also subsequently posted as Medical Officer at Kamakshaguri, BPHC from April 2011 to 2012. Thereafter he had been pursuing his services as Medical Officer, Orthopedics, at Jalpaiguri Sadar Hospital eversince April 2012. So, it is clear that O.P. No.1 is a qualified Orthopedics having sufficient experience. Therefore, there is no doubt about the treatment, skill and experience of O.P. No. 1 as an Orthopedics Surgeon. We have already found that the complainant had a history of comminuted fracture of left femur. So, the complainant conducted operation at Siliguri Nursing Home. He used most modern and suitable implant for such type of fracture. From the prescription dated 02.10.2015 we find that the O.P. No.1 observed that the fracture of the complainant has been “united” and he advised normal activities. Except S.O.S no pain-killer was prescribed. The said operation was done by O.P. No. 1 on 23.05.2018. So, it can be said that within a period of 4/5 months fracture was united, complainant was able to do normal activities i.e. he could walk without crutch and there was also no pain. Therefore, the operation conducted by the O.P no.1 can be treated as successful. The complainant did not examine any Expert to prove that the doctor did not exercise reasonable degree of skill, a reasonable degree of care comparable to a standard medical practitioner in the field(F.A No. 21 of 2007, judgment dated 24.8.2012, N.C – Lila Devi–Vs–Dr. Shatrughan Ram & another followed). So, there was neither any failure on the part of O.P. No. 1 to attain that standard of care, nor there was any damage of the complainant on account of breach of duty by O.P. No. 1.
It is the admitted fact that there was shortening of leg of the complainant and one screw was removed by O.P. No. 1 on 02.03.2016. We have already found from the prescription dt.02.10.2015 that the screws and plates of the complainant were fitted properly by O.P. No. 1, as a result of which fracture has been united and the complainant was able to do normal activities. It is known to us that shortening of leg and loosening of screw are very much common in surgery of comminuted fracture. There are various reasons for the same like early weight bearing, failure to follow the advice of doctors etc. It has been clearly decided by the Hon’ble National Commission in Revision Petition No. 1975 of 2016, Order Dt. 7th March, 2017(Baljit Singh-Vs-Kumar Hospital & another) that there would be many reasons for loosening of screws namely, some accident and failure on the part of the person to follow the medical advice given by the Orthopedic Surgeon at the time of discharge. If the screws or plates have loosened for some reason after surgery, the doctor conducted the surgery can not be blamed. The Hon’ble National Commission has also disclosed that no surgery can claim 100% recovery. In order to recover, the patient is expected to comply with the advice of the doctor. It has also been decided by the Hon’ble National Commission in the case of Anoop Awasthi-Vs-Dr. T. Kataria (Judgement dated 18.03.2016) that the doctor can not be held negligent simply because something went wrong. The Hon’ble National Commission, reported in I (2018) CPJ 28A (Baljeet Kaur-Vs-Dhaliwal Hospital and others) held that negligence can not be attributed to a doctor so long he performed his duties with reasonable skill and confidence. No doctor can assure recovery of patient from any complications.
In the instant case we have already found that the O.P. No. 1 took sufficient care for conducting the operation and used most modern and suitable implant. We have also found that the fracture of the complainant has been united, which proves that the operation was successful. From the enquiry report submitted by the Medical Board formed by the Superintendent, District Hospital, Jalpaiguri, we find that the Medical Board prima facie did not find any negligence on the part of O.P. No. 1/Dr. Kamalesh Biswas. From the enquiry report submitted by the Medical Board constituted by the Medical Superintendent-cum-Vice Principal, North Bengal Medical College & Hospital, District Darjeeling, we find that according to their observation- i) Patient can do straight leg raising up to 80 degree; ii) ROM of left knee 0-120 degree; iii) patient can bear weight and can walk without any assistance; iv) there is back out of proximal locking screw, which is impinging on overlying skin, v) clinically there is union of fracture, vi) shortening of left lower limb of approximately 1” inch and vii) sequential X-ray examination reveals that the initial fixation of the fracture was acceptable, but there was subsequent cut-out of the locking screw which may be due to early weight bearing(a known complication of this operation). According to the opinion of the Medical Board, they also did not find any negligence on the part of the Orthopedic Surgeon.
Thus, there was no negligence on the part of O.P. no.1 as per opinion of the Medical Board formed by the Superintendent, Sadar Hospital, Jalpaiguri, as well as, as per opinion of the Medical Board formed by the Medical Superintendent-cum-Vice Principal, North Bengal Medical College & Hospital, District : Darjeeling we have also found from the report of the Enquiry Committee formed by the Medical Superintendent-cum-Vice Principal, North Bengal Medical College & Hospital that the fracture has been united and the complainant is able to do his normal activities. He can bear weight and can walk without any assistance. However, the left leg of the complainant has been shortened and there is back-out of proximal locking screw which is impinging on overlying skin.According to the opinion of the said committee, such complication may arise due to early weight bearing. We have already found that one screw was removed by O.P no.1 on 2.3.2016 at Merina Nursing Home. So, there was no other screw at that time for removal, but the Enquiry committee on 27.7.2017 found that there is back-out of proximal locking screw which is impinging on overlying skin. So, it can be safely presumed that the complainant did not follow the advice of the doctor even after one screw was removed. The another screw which was found by the Enquiry committee on 27.7.2017 can be easily removed and for that no revisional surgery is required. The complainant in his petition of complaint has disclosed that he is a petty Line-man dealing in edible products and he has to push the paddles of bi-cycle throughout the day. So, it can be presumed that the complainant started running his bi-cycle after his fracture was found united on 2.10.2015, as a result of which his left leg was shortened and the screws fitted in the plate were loosened. In such circumstances, following the decision of the Hon’ble Supreme Court and the Hon’ble National Commission, we must say that there was no negligence in the operation conducted by O.P. no.1. Accordingly, we are inclined to hold that there was no deficiency of service on the part of O.P. No.1.
These points are thus decided against the complainant.
POINT NOS. 3 AND 4 :-
From the discussions made above and in the light of our observation, we have already found that the O.P no.1 conducted the operation with due care and he used the most modern and suitable implant. There was no failure of implant. On the other hand, it was found on 2.10.2015 that the fracture has been united and the complainant was able to do his normal activities. So, the O.P no.1 exercised reasonable degree of skill, a reasonable degree of care which a standard medical practitioner may exercise in this field. We have also found that the Medical Board constituted by the Superintendent, Sadar Hospital, Jalpaiguri, in their enquiry did not find any negligence on the part of O.P. no.1. The Medical Board constituted by the Medical Superintendent-cum-Vice Principal of North Bengal Medical College & Hospital in their enquiry also did not find any negligence on the part of O.P. No. 1. Both the report of the Medical Board should be treated as Expert Opinion and can not be thrown away. So, the Expert Opinion corroborate the plea of O.P. No. 1 that there was no negligence on his part. From the Enquiry Report of the Medical Board constituted by the Medical Superintendent-cum- Vice principal, North Bengal Medical College & Hospital, it is found that the patient/Complainant can do straight leg raising up to 80 degree ROM of left knee 0-120 degree, patient can bear weight and can walk without any assistance and there is union of fracture. Thus the said report shows that the operation was successful. In spite of that there was shortening of leg and loosening of screw. There are several reasons for such type of complications like early weight bearing, not following the advice of the treating doctor, forcible walking etc. We have already found that a doctor can not be held negligent simply because something went wrong. Accordingly, it was held by us that there was no negligence on the part of O.P. No. 1. Consequently there was no deficiency in service on the part of the O.P. No. 1. As such we are inclined to hold that the complainant has been miserably failed to prove his case. Accordingly, the complainant is not entitled to get any relief, as prayed for and the case is liable to be dismisses.
Both the points are thus decided against the complainant.
As a result, the case fails.
Hence, it is
O R D E R E D :-
That the C.C No. 31 of 2016 be and the same is dismissed ex parte against Proforma O.P. No.2 and on contest against the O.P. No. 1 and Proforma O.P. Nos. 3 to 5 without cost.
Let the original documents, if any, and the extra sets filed by the opposite parties, be returned on proper receipt.
Let a plain copy of this order be supplied to the parties free of cost on proper acknowledgment or be sent by speed post forthwith, in terms of Rule 5(10) of West Bengal Consumers Protection Rules 1987.
