By : SMT. BANDANA ROY, PRESIDENT
The case of the petitioner/complainant in brief is that he fell down accidently at the courtyard of his house on 09.08.16 at 10.00 PM and got his right proximal arm fractured and was suffering from severe pain. The complainant came to the OP no.1 for treatment and as per his advice he was admitted in the OP No.2 nursing home under treatment of OP no.1 on the same date. The OP no.1 advised for operation in the nursing home of OP no. 2 and both the OPs took Rs. 30,000/- for his treatment and operation but did not issue any receipt. It is the specific allegation of the complainant that he was discharged from the nursing home on 13.08.2016 fixing plate on 11.08.16 at 7.30 AM and the operation was done quite negligently and he was discharged while suffering from pain and swelling on the operation site. On 20.08.2016 the complainant came to the OP no. 1 for checkup and then OP no.1 advised him for physiotherapy and also prescribed some medicines. Again on 31.08.16 the complainant came to the OP no.1 for checkup but there was no improvement in his right arm. On 28.09.16 the complainant again came to the OP no.1 for checkup but as per his advice for X-ray of the ailing portion the complainant could not do so for want of money. After about 1.5 months the complainant could not move his right arm. Thereafter the complainant was treated at SSKM hospital, Calcutta on 16.11.16 where he was advised for nerve test. The doctors of SSKM hospital diagnosed the complainant and opined that during the operation his nerves had been tied up with screw and that problem will not cure during the life. On 28.09.16 one Dr. Bimal Maity treated him and he also opined the same. At present the complainant is unable to do any work. The complainant spent Rs. 70,000/- for the total treatment of his alimony.
Under such a pathetic circumstances, the complainant has filed this complaint against the OPs with prayers as mentioned therein, on the allegation of gross deficiency as well as negligence on the part of the OPs.
The OP no.1 and 2 contested the case by filing separate written version and WNA.
The specific case of the OP no.1 is that the case is not maintainable in law and in facts also. It is the case of this OP that on 10.08.2016 the complainant came to him with the complaint of severe pain in the right shoulder and inability to move the elbow, wrist, fingers. On physical examination he detected that there was a swelling on the right shoulder which became deformed and tender for which the patient could not move the hand. Thereafter on consent of the patient he conducted operation on the injured part on 11.08.16 and found impingement of radial nerve by bony fragment and impingement was released and the patient was discharged on 13.08.2016 with some pain and swelling on the operation site. The OP. no1 admits that on many subsequent dates the patient came to him for routine checkup and he advised him for physiotherapy for quick recovery as per protocol. On 09.08.17 the complainant came to him with fracture of humorous shaft of right arm and after examination the OP no.1 advised him for X ray and other some clinical examination to know the actual cause of the injury of the patient. The OP no.1 stated that after proper investigation the patient was required to undergo high risk operation in the right arm. After all such clinical test and X ray the OP no.1 conducted the operation taking consent of the patient and his guardian present. The operation was done in the nursing home under regional anesthesia. The fracture was reduced by locking plates. Post-operative recovery of the patient was satisfactory and he was released from the Nursing Home on 13.08.16.
Under the above grounds the OP no.1 demands Rs. 1,00,000/- as cost for harassment and amputating the good will of the physician, OP no.1 and claimed dismissal of the case.
OP No. 2 also contested the case by filing separate written version and contended that the case should be dismissed with cost. It is the case of this OP no. 2 that the patient was advised for admission as an indoor patient for operation. He was admitted and was given pre-operative precaution and proper care was provided with medicines as prescribed by the doctor. He was admitted on 10.08.2016 and was discharged on 13.08.2016. At the time of discharge all the relevant papers were handed over to the guardian of the patient namely Santanu Debadhiokary and he signed on the acknowledgement. There was no lacuna on the part of the nursing home during the admission, treatment and care of the patient.
The OP no.2 also prays for dismissal of the complaint with cost.
On the basis of the pleadings of all the parties above the following issues required to be considered is whether the complaint is entitled to get the reliefs as prayed for.
DECISION WITH REASONS.
We have carefully gone through the complaint, written versions of both the OPs separately, the prescriptions, discharge certificate and also the report of Bangur Institute of Neurology and all the other documents filed by the respective parties and heard the ld. Advocate for both the parties very carefully.
Admittedly on 10.08.2016 the complaint came to the doctor OP no.1 with complain of severe pain in the right shoulder with severe pain and inability to move the elbow, wrists and fingers. On physical examination it was detected that there was swelling on the right shoulder of the complainant which was deformed and tender with problem of pain for which the complainant was unable to move his hand. Though the complainant had stated nothing about the pre X-ray and operation but from the written version of the OP no 1 it is revealed that pre-protocol X-ray was advised and it was suggested that community fracture of right shaft humorous with gross displacement. The OP no.1 admitted that at the time of impact this had caused the bone injury that may have caused damage to the radial nerves which was passing thereby. According to Author of Campbell that “radial nerve commonly injured in fracture of humorous bone specially comminuted “. Admittedly the operation was made by the OP no.1 at the nursing home of the OP no.2 on 11.08.2016 and it is found that impingement of radial nerve by bony fragment and impingement was released and denied any negligence and the complainant was discharged on 13.08.2016 with some pain and swelling on the operation site. From the discharge certificate filed by the complainant it is seen that the complainant was suffering from right community. On discharge some medicines were prescribed. Admittedly on 19.08.16 the complainant came to the OP no.1 due to fracture of humorous shaft of right arm and after examination OP no1. advised the complainant to do X-ray and other clinical examination to know the actual injury of the patient. The copy of the prescription of the OP no.1 has been filed by the complainant which shows that it is dated 20,08.2016 and physiotherapy and some medicines were advised to the complainant for his problems. So what has been stated by the OP no.1 in his written version that X-ray was advised but actually it is seen from the prescription dated 20.08.16 that only physiotherapy was suggested. OP no 1 stated that the complication of such operation including weakness of radical nerve was explained by the OP no.1 to the complainant and his family members.
It appears from the Annexure -1 i.e the status of the patient that OP no.1 thoroughly investigated the health report of the complainant and thereafter admittedly surgery was done by OP no.1 on consent of the complainant and his family members.
The complainant has stated that he came to the OP no.1 first on 20.08.16 and then on 31.08.16 and 28.09.16 for the post operation problems. On 28.09.16 the OP no.1 suggested X-ray but complainant stated that he had no money for taking the X – ray for the surgical operation. But complainant stated that after one and half month of the said operation the complainant found that he could not move his right arm though he was under treatment of the OP no.1. According to the complainant thereafter he was treated at SSKM Hospital on 06.12.16 where he was advised for nerve test and it was diagnosed that nerves had been tied under screws at the time of the operation by the OP no.1 and for that reason the problems of the patient remained permanent one and cannot be solved in life and at present movement of the right shoulder of the complainant has been restricted. The complainant alleged that due to wrong operation by the OP no.1 he is unable to do any normal daily work by his right hand and suffers from acute mental pain and also physical loss.
Ld. advocate for the OP no. 1 brought to the notice of this Forum regarding Annexure II which is a medical literature from which it appears that radial nerve is the nerve most frequently injured with fractures of the humeral shaft because of its spiral course across the back of the mid shaft of the bone and its relatively fixed position in the distal arm as it penetrates the lateral intramuscular septum anteriorly . Usually the radial nerve injury is a neurapraxia, with recovery rates of 100% in low energy injuries and 33% in high energy injuries. Although it is possible for the nerve to be severed by the sharp edge of a bone fragment, this rarely occurs. Although it is possible for the nerves to be severed by a sharp edge of a bone fragment which rarely occurred. Early exploration is required if evidence suggests that the radial nerve is impaled on a bone fragment or is caught between the fragments.
Ld. Advocate further argued that according to a literature which will appear from Annexure III that ‘lesions of the radial nerve at its origin from the posterior cord in the axilla may occur due to pressure from a long crutch . Triceps is involved only with lesions at this level and is usually spared in the more common lesions of the radial nerve in the arm as it lies alongside the spiral groove, where the nerve is commonly affected by fractures of the homers. Compression of the nerve against the humerus occurs if the arm is rested on a sharp edge such as the back of a chair, Both crutch palsy and Saturday night palsy causes weakens of brachioradialis with wasting and loss of the reflex. There is both wrist and finger drop due to weakness of wrist and finger extensors, as well as weakness of extensor policies longus and abductor policies longus. There may be sensory impairment of paraestheciac in the distribution of the superficial radial nerve.
From the OT Note of the OP no 2 (page 4 ) it is seen “ under brachial block Anesthetic patient is superior in position. By Ant. Late exposure, about 3 inch below acromion process, deltoid is epilated, longitudinally, fracture site is exposed. In between fracture fragments, radial nerve is impinged in post lateral aspect of humerus in radial groove. Radial nerve is released from impingement. Fracture is reduced and locking plate is applied on Ante lateral aspect of humerus above radial groove. Soft tissues is closed. ”
Surgery is defined in the Oxford English Dictionary as “The art or practice of treating injuries, deformities and other disorders by manual operation or instrumental appliances. The surgeon, therefore, is one who makes people better chiefly by the exercise of manual skills in performing ‘invasive’ procedures. In the development of medicine, surgeons have in consequence tended to be regarded as technicians, in contrast to physicians who are seen as contemplative, analytical and devoted to the philosophical. However, these distinctions, if they ever existed between the roles of physicians and surgeons have become increasingly blurred. Invasive procedures are frequently done within medical specialties.
Ld. Advocate for the OP no. 2 argued that the complainant has brought this case with mis- guidance without any sufficient cause. Moreover all precautions, ethics and norms have been properly maintained in performing the operation for repairing the Humerus fracture of right arm and it rendering the service and no negligence on behalf of the Nursing home authority. OP No. 2 has further stated that opinion regarding negligence on the part of the OP no 1 during operation mentioned in the prescription of Dr. Bimal Maity of NCV study in SSKM Hospital only detected that radial nerve plasy at level of spiral groove in Humerus fature which is most coon complication in case of Humerus fracture but this test did not give any conclusion whether radial nerve palsy is due to humerus fracture or due to operation and higher institute opined “ right side radial proximal CMAP not elicited Right Redial screw not elicited “ but did not opine the patient completely unable to do daily work for wrong operation done by OP No1 .
We have carefully gone through the report of Bangur Institute and we find that though due to patient’s problem no liability was fixed on the Doctor but it is clearly stated by the complainant that the patient suffered due to post operation complications. According to Dr. Kailash Nath Sheiny that Surgical procedures may be elective which is a planned procedure, or an emergency, where it has to be done without any delay failing which the consequences may be permanent. Before carrying out any surgical procedure be it elective or emergency, it has to be ascertained that the patient is fit to undergo the proposed surgery. Failing to do so may result in unnecessary complications, often life threatening. In an emergency situation, when the patient is not really fit, the risk life vs benefit of carrying out the procedure will have to be weighed and decisions taken. The two post operation care includes (1) to prevent complications arising asa result of the surgery itself. For e.g . bleeding, airway obstruction, breathing problems, electrolyte imbalance etc.
After careful scrutiny of the literatures and the materials available in the record we find that the problem of the complainant started since his operation was done and it cannot be said that the complainant is telling lie where he has stated that he became unable to do any normal daily work with his right hand due to the negligence and operation done by the OPs .
Considering the report of the Bangur Institute we can say without any hesitation that the operation on the complainant done by the OPs was not satisfactory and due to that the complainant suffered problems.
The complainant has prayed for Rs. 18,00,000/- as compensation for medical negligence for return of Rs 30,000/- and Rs. 70,000/- which he spent for his treatment and also to pay litigation cost of Rs. 25,000/-.
Considering everything we are of the view that Rs 3,00,000/- will be adequate compensation for the complainant at this stage.
Accordingly we are of the view that the complainant has established his case and the OPs are liable for his post operation complications.
Hence it is,
ORDERED
That the CC No. 233 of 2017 be and the same is allowed on contest in part against the OPs. Both the OPs are jointly and severely directed to pay a sum of Rs, 3,00,000/- to the complainant including litigation and other costs within one month from the date of this judgment , in default, the OPs will be liable to pay Rs. 100/- per diem as punitive charge until full satisfaction of the order. The said amount will be payable to the Consumer Welfare Fund.
Let copy of this order be supplied to both the parties free of cost.
