Order No. - 27 Date : 04.04.2018
FINAL ORDER/JUDGEMENT
Sri Sibasis Sarkar, Ld. President.
The Complainant Smt. Parijat Ghosh(Neogi) has filed the present petition of complaint u/s. 12 of C.P. Act, 1986, wherein she has stated that on 15.5.2015, at about 11-00 to 11-50 p.m she met with an accident and as a result she sustained injuries /including broken shaft of right femur. X-ray was done at Suraksha X-ray clinic at Hakimpara where O.P no. 1 Dr. Kamalesh Biswas attended the complainant and as per advice of O.P. no.1 she was admitted at Touch Nursing Home, Jalpaiguri. On the next day morning she was discharged and as per advice of O.P no.1 she was admitted at Siliguri Nursing Home. The complainant was operated at Siliguri Nursing Home on 16.5.2015 and was discharged from the said Nursing Home on 17.5.2015. As per advice of O.P no.1, the complainant was again admitted at Touch Nursing Home and remained under the treatment of O.P no.1. Ultimately the complainant was discharged by O.P no.1 from Touch Nursing Home, Jalpaiguri on 20.5.2015. Thereafter the complainant again visited O.P no.1 on 4.8.2015 at Touch Nursing Home, Jalpaiguri and reported him about persisting pain and slightly shortening of right leg. Subsequently the complainant also visited O.P no.1 for several times. Lastly, on 16.1.2016 the O.P no.1 reported “failure of the implant” done with the complainant and also advised that re-operation for removal of the implant is needed. So, out of fear the complainant went to Abhishek Agarwal at Life Care Medicos at Pandapara, Jalpaiguri who advised removal of the screws etc. and told that recovery is poor. As such the complainant visited Dr. Amal Basak at Paramount Hospital Private Ltd. at Siliguri for second opinion. Thereafter on 2.2.2016 Dr. Abhishek Agarwal removed the screws etc. at Marina Nursing Home, Jalpaiguri. Subsequently, she was compelled to go to Paras HMRI Hospital, Patna, on 16.5.2016. Again, the complainant went there on 28.6.2016 and was admitted for re-operation. On 30.6.2016 operation was done which included plating and bone grafting. The complainant was discharged on 4.7.2016. There was clear negligence on the part of the O.P no.1 regarding his treatment which compelled the complainant to visit different doctors and for re-operation. The complainant filed application before the Consumer Affairs & Fair Business Practices, Jalpaiguri for reconciliation, but the O.P no.1 did not turn which has compelled the complainant to file the present case.
The proforma O.P.no. 2/CMOH, Sadar Hospital, Jalpaiguri, is not contesting the case. As such the case has been heard ex parte against proforma O.P. No.2.
O.P no.1 and proforma O.P nos. 3 to 5 are contesting the case by filing separate written versions denying all the material allegations 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 O.P no.1 is that the complainant met with an accident on 15.5.2015 at 11-00 p.m to 11-50 p.m which leads to trauma over right thigh. X-ray was done which revealed comminuted fracture on shaft of femur. On hearing the same the O.P no.1 rushed to the x-ray clinic leaving his chamber and on examination advised the complainant to get admitted inTouch Nursing Home Private Ltd. As because there was/is no C-Arm machine anywhere at Jalpaiguri, so the complainant was advised to get admitted at Siliguri Nursing Home, Siliguri, for her fracture fixation. Operation of the complainant was done on 16.5.2015 at Siliguri Nursing Home. Before the operation the O.P no.1 explained every details pros and cons regarding the entire treatment schedule as well as its outcome in plain Bengali vernacular. The operation was a successful one. On 20.5.2015 the complainant was discharged from Touch Nursing Home in stable condition with various follow-up advices. Due to the careless attitude of the complainant, the x-ray plate clearly displayed kinking of screw and bowing of nail and that occurred slowly due to the early weight bearing upon the limb. So, the O.P no.1 wrote ‘Implant Failure’ need – Removal of Implant and Re-operation’. Implant Failure does not mean Treatment Failure. Such Implant Failure may be due to willful, careless and negligent act of the patient. Dr. Abhishek Agarwal did a minor procedure i.e. dynamization which is an internationally accepted procedure for delayed union. Subsequently, there was an operation done by Dr. John Mukhopadhay for non-union. Such non-union of fracture may occur due to various causes and is not at all uncommon .The O.P no.1 gave his best effort for the operation of the complainant and it was a successful one. There was no negligence on his part. It cannot be said that there was 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 with cost.
Considering the rival pleadings of both the parties, the following points have been framed.
POINTS FOR CONSIDERATION ;-
1) Is the case maintainable in its present form and prayer ?
2) Was there any deficiency in service on the part of the Opposite party ?
3) Is the complainant entitled to get any relief, as prayed for ?
3) To what other relief or reliefs is the complainant entitled ?
DECISION WITH REASONS :-
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, both the parties submitted before the Forum to pass the final order/judgment on the basis of the petition of complaint supported by affidavit along with documents annexed therein and the written version supported by affidavit along with documents annexed therein treating them as their respective evidence on affidavit. Accordingly, as the present case is triable by summary procedure, so we accepted the petition of complaint along with the documents annexed therein, as the evidence on affidavit on behalf of the complainant and the written version along with the documents annexed therein as the evidence on affidavit on behalf of the opposite parties. We have also carefully perused the B.N.A filed by both the parties and the decisions cited by them. We have also heard argument of both parties in full and at length.
Point no. 1 :-
The Ld. Lawyer for the opposite parties by referring the decisions of Jacob Mathew and the decision of Martin F D’seuza argued that as no medical expert has been examined by the complainant to prove that there was medical negligence on the part of O.P no.1. So, this Forum has got no authority to pass any judgment in this case of medical negligence. Accordingly, the present case is not maintainable due to absence of evidence of medical expert and is liable to be dismissed.
The ld. Lawyer for the complainant raised objection.
In this regard the judgment of the Hon’ble Supreme Court reported in (2010) 5 S.C.C, 513(V. Kishan Rao-Vs-Nikhil Super Specialty HHospital & another) cited by the ld. Advocate for the complainant is very much pertinent. It is clearly decided by the Hon’ble Supreme Court that direction given in Jacob Mathew case(2005), 6 S.C.C, page-1, Para-82 is meant for Criminal cases and not for other cases filed in Consumer Fora for the purpose of determining Civil liability. General direction given in Martin F. D’seuza case(2009) 3, S.C.C page 1, paragraph 106, extending the same to Civil cases held, are per incurium and not binding. Consumer Forum can give appropriate relief on the basis of summary trial on affidavits. Thus, we have found that as per decision of the Hon’ble Supreme Court, the decisions cited by the ld. Lawyer for the opposite party are not applicable in this case. Besides that, both parties had the opportunity to examine Medical Expert before the Forum to prove their respective case. But neither the complainant, nor the opposite parties took the said opportunity. However, considering the fact of the case, we think that this case can be disposed of without the evidence of Medical Expert. As such the present case is maintainable and is not liable to be dismissed on the ground of absence of evidence of Medical Expert.
This point is thus decided in favour of the complainant.
POINT NO.2 :-
It is the case of the complainant that there was negligence on the part of the O.P. no.1, as a result of which the right leg of the complainant has slightly been shortened and there was non-union of bones.
It is the admitted fact that the complainant met with an accident on 15.5.2015, at about 11-00 p.m to 11-50 p.m which leads to trauma over right thing. The x-ray revealed comminuted fracture on shaft of femur. It is also admitted fact that operation was done by O.P no.1 and in spite of that there was non-union of bones.
It has been clearly decided by the Hon’ble National Commission in F.A no.21 of 2007 (Judgement dated 24.8.2012 – Leela Devi-Vs-Dr. Shatrughan Ram & another) that just because there is non-union after surgery does not mean that there was a negligence on the part of the treating Surgeon. Now,let us see whether there was negligence on the part of O.P.no.1/Dr. Kamalesh Biswas.
It has been decided by the Hon’ble Supreme Court, reported in II(2007), CPJ, page 25(Kishori Lal-Vs-E.S.I Corporation). 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 must be present.
Ingredient No.1 :-
Existence of duty to take care – It has been decided by the Hon’ble Supreme Court
Reported in AIR 1969 S.C, page 128(Dr. Laxman Bala Krishnan Joshi-Vs-
Dr.Trimbak Bapu Godbole & Another)(referred in the case of Poonam Verma-Vs-
Ashwin Patel & others, reported in 1996, AIR 2111(S.C) & 1996 S.C.C (4)332)that
A doctor when consulted by a patient owes him certain duties namely: (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in
deciding what treatment to give and (c) a duty of care in the administration of that
treatment. A breach of any of these duties gives a cause of action for
negligence to the patient.
In the instant case from the petition of complaint and from the Xerox copy of documents filed by the complainant we find that the complainant met with an accident on 15.5.2015at about 11-00 p.m. to 11-50 p.m. She was taken to Suraksha X-ray Clinic on that day. We also find that on hearing the said information from the patient party, the O.P no.1rushed to the said x-ray clinic and examined the complainant. He ought to have directed the patient party to bring the patient to his chamber, but he himself went to the
x-ray clinic to examine the complainant leaving his own chamber. This shows that the O.P no.1 was very much careful for the complainant to perform his duty. From the Xerox copy of prescription dated 15.5.2015 we find that from the x-ray report the doctor found that the complainant sustained comminuted fracture on shaft of femur. So, the O.P no.1 advised the patient to get admitted in Touch Nursing Home, in Jalpaiguri for her preliminary treatment. It has also been advised by the doctor that operation is needed i.e. IM Nailing or plating. The doctor also prescribed some medical tests including E.C.G of the complainant. From the discharge certificate of Touch Nursing Home we find that the complainant was admitted on 15.5.2015 and was discharged on 16.5.2015. The O.P no.1 advised for admission to higher centre. We have already found that the complainant sustained comminuted fracture on right shaft of femur. From the medical journal filed by the complainant we find that in comminuted fracture the bone has broken into three or more pieces. But in most cases the number of bone fragments corresponds with the amount of force required to break the bone. It has also been mentioned in the said medical journal that surgical treatment is necessary for such comminuted fracture. From the prescription dated 15.5.2015 and from the Discharge certificate dated 16.5.2015 we find that O.P no. 1 decided to undertake the case and decided for operation. The O.P no.1 in his written version supported by affidavit has specifically stated that there is no C-ARM machine anywhere at Jalpaiguri. So, O.P. no.1 advised the complainant to get admitted at Siliguri Nursing Home, Siliguri for her fracture fixation. From the prescription we also find that the O.P no.1 advised the patient party to make arrangement to send the patient to O.T. at 5-45 p.m so that operation can be done by him at 6-00 p.m.. He also advised for requisition of one unit blood. This shows that the O.P no.1 took sufficient care and caution for the operation of the complainant without any delay. From the discharge certificate of Siliguri Nursing Home Private Ltd. we find that the complainant was admitted in the said Nursing Home on 16.5.2015 and she was discharged on 17.5.2015.
We also find from the Medical Journal that IM Nailing(Intramedullary nailing) is the most current and sophisticated method which most of the Sergeons are using for treating femoral shaft fractures. During this procedure a specially designed metal rod is inserted into the narrow canal of the femur. The rod passes across the fracture to keep it in position. An intramedullary nail can be inserted into the canal either at the hip or the knee through a small incision. It is screwed to the bone at both ends. This keeps the nail and the bone in proper position during healing.
We have already found that intramedullary nailing was done by O.P. no.1, which shows that the O.P no.1 has adopted the most sophisticated method for the treatment of the complainant who sustained comminuted fracture. From the discharge certificate of Siliguri Nursing Home, we find that the O.P no.1 advised the complainant to get herself admitted in Touch Nursing Home at Jalpaiguri in general bed. So, O.P no.1 took sufficient care so that the complainant can get post operation treatment near her house at Jalpaiguri at a low cost. From the discharge certificate dated 20.5.2015 of Touch Nursing Home we find that the O.P no.1 prescribed necessary medicines to the complainant and also advised not to bear weight. From the prescription dated 4.8.2015 we find that after discharge on 20.5.2015, the complainant visited O.P no.1 for the first time. We also find from the said prescription that on 4.8.2015 the O.P no.1 found that the complainant was doing well. So, he advised the patient for partial weight bearing. Subsequently, the complainant again visited O.P no.1 on 21.12.2015. From the prescription dated 21.12.2015 we find that the complainant complained for pain on right buttock. So, the doctor prescribed medicines for the complainant and also advised for trying to work normally. Thereafter the complainant again visited O.P no.1 on 14.1.2016. From the said prescription dated 14.1.2016 we find that the O.P no.1 observed that the fracture was almost united. However, the O.P no.1 prescribed some medicines(s.o.s) for the complainant. Thus we find that the operation of the complainant was done on 16.5.2015 and there was no complication upto 16.1.2016 i.e. upto eight months and the fracture was almost united. We have also found that the O.P no.1 took sufficient care in the administration of the treatment of the complainant. So, there was existence of duty for O.P. no.1 to take care relating to the treatment of the complainant. Accordingly,(a) the O.P no.1 decided to undertake treatment of the complainant.(b) He also decided as to what treatment should he give to the complainant. He decided for MI Nailing which is the most sophisticated method of treatment in a case of comminuted fracture and(c) O.P no.1 also took sufficient care in the administration of treatment of the complainant. There was no breach of those duties on the part of O.P no.1.
Ingredient NOS. 2 & 3:-
We have already found that there was no. failure by O.P no.1 to attain that standard of care and there was no damage of the complainant on account of any breach of duty by O.P no.1.
From the prescription dated 16.1.2016 issued by the O.P no.1 in respect of the complainant, we find that the O.P no. 1 found ‘Implant Failure’. So, O.P no.1 advised for Removal of Implant by re-operation. We also find from the Discharge certificate dated 4.7.2016 of Paras HMRI hospital, Patna and from the prescription of Dr. John Mukhopadhyay dated 19.12.2016 that plating and bone grafting was done for non-union of the fracture of the complainant. So, there is no doubt that there was non-union of fractured bones. In spite of that it was found by O.P no.1 on 14.1.2016 that fracture has been almost united. From the medical journal filed by the complainant herself we find that complication like delayed union or non-union may arise even after surgery. So, as per medical journal filed by the complainant herself non-union of bones after surgery of comminuted fracture is not uncommon at all. There are various reasons for such non-union of bones like bearing weights just after operation or trying to walk forcely etc. It has been clearly decided by the Hon’ble National Commission in Revision petition no. 1975 of 2016 order dated 7th March, 2017(Baljit Singh-Vs-Kumar Hospital & others) that there would be many reasons for loosening of screws namely, some accident or failure on the part of the patient 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 who conducted the surgery cannot be blamed. In the instant case we have already found that the complainant was doing well after her opertion and it was found on 14.1.2016 that the fracture was almost united. However, on 16.1.2016 it was detected by O.P no.1 ‘Implant Failure’. So, it can be safely presumed that perhaps the complainant did not follow the advice of O.P no.1, as a result of which there was non-union of fracture due to ‘Implant Failure’.In such a case following the decision of the Hon’ble National Commission passed in Baljit Singh case, we must say that the O.P no.1 cannot be blamed for ‘Implant Failure’ resulting in non-union of bones. It has been decided by the Honble National Commission in the case of Anoop Awasthi-Vs-Dr. T. Kataria(judgment dated 18.3.2016) that the doctor cannot be held negligent simply because something went wrong. We have already found that O.P no.1 took proper care and caution for the treatment of the complainant and adopted the most sophisticated method for operation of the complainant. From the written version filed by O.P no.1 we find that he is a M.B.B.S doctor and has also obtained diploma in orthopedics. He was posted as Medical officer at different hospitals since long. He is also attached as Medical officer of Orthopedic department at Jalpaiguri Sadar Hospital. So, the O.P no.1 has got sufficient knowledge and experience in orthopedic surgery. He gave his best effort to his knowledge and experience for the treatment of the complainant, in spite of that there was non-union of fractured bones of the complainant. So, following the decision of the Hon’ble National Commission passed in Anoop Awasti case, O.P no.1 cannot be held negligent simply because there was non-union of bones. It cannot be said that the treatment by O.P no.1 falls below the standard of a reasonably competent practitioner in his field. The case of the Hon’ble Supreme Court, reported in (2010) 3,S.C.C, page-480(Kusum Sharma & others-Vs-Batra Hospital & Medical Research Centre & others) is very much pertinent. The Hon’ble Supreme Court decided that Consumer Protection Act should not be a “halter round the neck” of doctors to make them fearful and apprehensive of taking professional decision at crucial moments to explore possibility of reviving patients hanging between life and death.
We have already found that in the present case the complainant met with an accident and sustained comminuted fracture on shaft of right femur. On getting information the O.P no.1 himself rushed to the X-ray clinic leaving his own chamber and advised to admit the patient at Touch Nursing Home, Jalpaiguri, for that day and also advised for operation at Siliguri Nursing Home, as there is no C-ARM machine in any Nursing Home/hospital at Jalpaiguri. The operation was done on the next day without any delay and MI Nailing was done which is the most sophisticated method of surgery in case of comminuted fracture. The O.P no.1 took sufficient case before operation, during operation and during post-operation period. The patient was doing well and on 14.1.2016 the bones were found mostly united. Unfortunately, on 16.1.2016 it was detected ‘Implant Failure’ resulted in non-union of bones. In such circumstances, following the decisions of the Hon’ble Supreme Court and the Hon’ble National Commission we must say that there was no negligence on the part of the doctor/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.
This point is thus decided against the complainant.
POINT NOS. 3 AND 4 :-
From the discussions made above and in the light of our observations, we have already found that there was no 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.
These points are also decided against the complainant.
As a result the case fails.
Hence, it is
O R D E R E D :-
that the Consumer case no.11 of 2017 be and the same is dismissed on contest against O.P no.1 and Pro-O.P nos. 3 to 5 and ex parte against O.P No.2 without cost.
Let the original documents, if any, and the extra sets filed by the parties be returned on proper receipt.
Let a plain copy of this order be supplied to the parties free of cost forthwith on proper acknowledgement or be sent by speed post in terms of Rule 5(10) of West Bengal Consumer Protection Rules 1987.
