A. K. BHATTACHARYYA, PRESIDENT
Brief facts of the instant case are that the complainant sustained heavy injury in his two hands on 14-03-2010 when some miscreants assaulted him with heavy blunt objects; that after preliminary treatment at nearby Paikpari B.P.H.C. he was referred to Purba Medinipur District Hospital, Tamluk wherefrom he was referred to N.R.S. Hospital, Kolkata, but instead of going to N.R.S. Hospital, he got admitted at the OP nursing home (OP no. 2) on 19-03-2010 where OP no. 1 on 21.03.2010 operated his left forearm with D.C.P. (Dynamic Compression Plate) after putting autogenous bone grafts from left iliac bone; that on 22.03.2010 the right forearm of the complainant was also operated where D.C.P. and six Cortical screws were internally fixed for each radious and ulnar fracture respectively; that on 25.03.2010 he was discharged from OP nursing home; that due to wrong operation, OP no. 1 had to change the plaster thrice but there was no improvement; that as there was no remission of pain, he consulted various other renowned orthopaedic doctors who all in one, opined that the condition of his hands worsened owing to wrong treatment by OP no. 1. It is alleged by the complainant that presently he cannot do any work with his hands due to negligence on the part of OP no. 1 and therefore, holding OPs entirely responsible for his present handicap condition; complainant filed the instant case for relief.
In support of his claim, complainant filed several pathological reports, prescriptions, medical bills in connection with his treatment under different doctors, one original written undertaking given by OP no. 1 to the complainant for bearing expenses of his future surgery.
Both the OPs contested the case by filing written version and written notes on arguments jointly thereby denying all the material averments of the petition of complaint contending inter alia that although the complainant sustained fracture injury on 14.03.2010, he met OP no. 1 on 19.03.2010; that during the said intervening period no positive treatment was done though in such type of fracture, delay in treatment leads to poor prognosis and as per his advice xray was done for the first time and based on said xray report, fracture injuries on both hands were detected and through operation, necessary repair was done and affected area was plastered; that after operation complainant was discharged from OP no. 2 nursing home on 25.03.2010 but during the period from 25.03.2010 to 08.04.2011, complainant had been quite irregular to visit his chamber; that none of the senior surgeons whom the complainant met, made any adverse comment as regards his treatment; that non-use of moulded guard is also liable for non-union and more so, non-union/delayed union can also results from poor nutritionist status, poor general health, anemia etc.; that OPs took all due care of the patient (complainant) to ensure his recovery and thereby, denying any negligence on their part, OPs prayed for dismissal of the instant case against them.
Both the complainant and OP no. 1 filed Affidavit-in-Chief in support of their contention and were cross-examined by the other side. Besides one Dr. Golak Behari Maji deposed on behalf of OP no. 1 and was cross-examined by the ld. lawyer of complainant.
Points for consideration
On careful perusal of the materials on record including evidence adduced by the parties and on the basis of submission of ld. lawyers of both sides, we frame the following points to decide the matter.
- Whether there was any negligence on the part of the OPs in rendering medical treatment to the complainant as alleged?
- Whether complainant is entitled to any relief as sought for?
Decisions with reasons
Point nos. 1&2:
Both these points are taken up together for the sake of convenience of discussion.
Ld. lawyer appearing on behalf of the complainant stated that on 14.03.2010 the complainant was brutally assaulted by some miscreants and as a result of which he sufferedgrievous injury in his upper limbs. After preliminary treatment at nearby health centre, he was referred to Purba Medinipur District Hospital wherefrom he was referred to N.R.S. Hospital in Kolkata. However, complainant got admitted at OP no. 2 Nursing Home as per the advice of OP no. 1. He underwent operation at the said Nursing Home on 21-03-2010 and 22-03-2010 under the OP no. 1 and he was discharged therefrom on 25.03.2010. However, owing to wrong treatment as well as sheer negligence/failure to take proper post-operative care on the part of the OPs, instead of steady recovery his condition started deteriorating day by day which ultimately left him with permanent disability in his left forearm.It is also stated by the ld. lawyer that although OP no. 1 treated complainant for nearly 1 year, there was no improvement whatsoever and after realizing his recklessness, OP no. 1 volunteered to bear surgery expenses of the left forearm of complainant and gave a written undertaking to that effectthough later on he backed out of his commitment, however, in order to dispel any notion of arm-twisting, ld. lawyer stated that had the complainant resorted to any unlawful activities against OP no. 1, he (OP no. 1) would surely have lodged police complaint against him. Drawing our attention to the report of the Enquiry Committee, constituted by the CMOH, Purba Medinipur to enquire into the matter, it is contended by the ld. lawyer that the said report is quite categorical in its findings about the negligence of OPs.Therefore, holding OPs squarely responsible for the present disability of complainant, ld. lawyer prayed for imposing exemplary cost on the OPs for their gross negligent act.
Ld. lawyer for the OPs, on the other hand, denied any negligence on their part and stated that they took all pre-operative care of the patient, as was required of them and the operation proved successful as it would be evident from the treatment sheets and also from the fact that none of the expert doctors, whom the complainant consulted, made any inimicalremark about the surgery. Moreover, complainant had been most irregular to visit his chamber for post-operative check-ups and despite his repeated advice, did not use moulded guard. That apart, during the period from 14.03.2010 to 19.03.2010 no positive treatment was meted out to him and above all since non-union/delayed union can develop from poor nutritionist status, poor general health and animia of the patient, and claiming that OPs took due care and caution of the patient, it is argued by the ld. lawyer that OPs, under any circumstances, cannot be held responsible for the non-union of complainant’s left forearm, which would be evident from the evidence adduced by OP no. 1 and his witness, Dr. G. Maji.
Be it noted that all medical papers together with a copy of the petition of complaint was sent to CMOH, Purba Medinipur for obtaining Experts’ opinion in the matter and accordingly CMOH, Purba Medinipur sent areport containing findings of the Enquiry Committee comprising of 1. Dr. S. N. Bhowmik, Dy. CMOH-I, Purba Medinipur (Chairperson) 2. Dr. B.B. Saha, ACMOH, Tamluk (Sadar) – Member and 3. Dr. Aparesh Ch. Sarkar, Sr. Ortho Surgeon, Purba Medinipur Dist. Hosp. – Member with the following opinion:
“We, the Enquiry Committee members examined the patient, Ganesh Mula (the complainant) physically at his residence on 09th May, 2012 and get the following findings and observation –
- Build : Average
- Orientation: Good & Co-ordinating
- Rt-Forearm – tender
- Movement of elbow & wrist joints – WNL finger movements – WNL
- Sensory Deficit – Nil
- Muscle Power – 3/5
- NeuroVaculor deficit – Nil
- Lt. Forearm – tender, Bending persists posteriorly
Movements at elbow – 0-100 degree
Sensory deficit – Nil
Muscle Power- 3/5
NeuroVacular deficit – Nil
- X-ray findings (05/07/2011)
No recent x-ray plates seen
- Rt. Forearm – a) For Radious – One D.C.P. with six
Cortical screws in situ, fracture site not united
b) For ulna – One DCP with six cortical screws in situ,
fracture site union progressing
Lt. Forearm – For Ulna – One D.C.P. with 5 cortical screws in situ, the proximal screw broken.The fracture site not united, posterior angulations of ulnar about 25-30 degree.
OPINION
As per our observation it is found that the surgical intervention for right forearm (ORIF – Open reduction internal fixation) has been done as per standard guideline but for the left forearm the diagnosis of Monteggia fracture dislocation was ignored. Somehow the fracture (Lt.) Ulna was internally fixed without reduction of superior radio – ulnar joint. Apart from this the post-operative advices follow up & guidance were not properly given resulting the present condition.”
Admittedly OP no. 1 operated both the forearm of complainant. There is no dispute as regards non-union of left forearm of the complainant. Admittedly, complainant was under the treatment of OP no. 1 during the period from 19-03-2010 to 08.04.2011.
On scrutiny we find that OP no. 1, who performed operation of the injured forearms of complainant on 21/22-03-2010, referred his patient (complainant) to another Orthopaedic Surgeon (Dr. G. Maji) on 28-03-2010. Quite naturally, when a patient is referred to another doctor within a week of performing operation, it raises eyebrows as regards precision of such operation.
It is claimed by the complainant that OP no. 1, after realizing his mistake, out of his own guilt feeling, offered to bear expenses of left forearm surgery (without bone grafting) from 08/04/2011 till end and gave an undertaking on his printed prescription to that effect, however, later on he backed out of his word and refused to honour his commitment. Although OP no. 1, during the course of argument raised strong objection in this regard, there is no material on record that the OP no. 1 raised any objection against such letter alleged to have been issued by him in favour of the complainant by lodging any complaint before any police station or before other competent authority. So, it cannot be said that it was obtained by the complainant forcibly from him. We fail to understand, had there been no negligence on his part, then why did he gave such undertaking to the complainant for baring the cost of better treatment of the complainant.
In his defence OP no. 1 contended that during the intervening period of 14.03.2010 and 19.03.2010 no positive treatment was done. We, however, find that during this period complainant was treated initially at Paikpari B.P.H.C. wherefrom he was shifted to Purba Medinipur District Hospital and neither the complainant complained of any negligence on the part of the doctors of District Hospital nor OP no. 1 has produced any cogent document to justify his allegation. We, therefore, do not find any force in such contention on the part of OP no. 1 and in any case undisputedly complainant got admitted at OP no. 2 Nursing home on 19-03-2010 and first operation was done on 21-03-2010. If OP no. 1 was so concerned about the severityof complainant’s injury, it baffles us as to why he did not operate the affected forearms on the very same day or even on the next day.
Another defence put forth by OP no. 1 is that post operation complainant had been most irregular to visit his chamber for check-ups and consultations. However, the prescriptions issued by OP no. 1 show a completely different picture – on most occasions complainant had been quite punctual to visit the chamber of OP no. 1 on the specified dates.
It is also alleged by OP no. 1 that complainant did not consult expert orthopaedic doctors as per advice. We find from the prescriptions on record that OP no. 1 on 28-03-2010 referred the complainant to Dr. G. Maji and as per said advice, complainant met the referred doctor on 02-04-2010. Besides this, he also met several other specialist doctors and moreover admittedly, complainant got treated at SSKM Hospital, Kolkata in connection with his ailment of urinary track infection with fever. Therefore, we do not find any basis in the allegation of OP no. 1 in this regard.
OP no. 1 also cited several possibilities behind non-union of the left forearm of complainant viznon-use of moulded forearm guard, development of urinary track infection with fever within few days of operation, poor metabolic and nutrition status, poor, general health and anemia. However, considering the fact that the right forearm of the complainant which also got severally damaged in the alleged attack, showed steady recovery over the passage of time, we do not find any substance in such contention of the OP no. 1.
In course of cross-examination Dr. G. Maji - who also treated the complainant – stated that “the first/previous operation was not correct for which the patient came to me”. Given the fact that Dr. G. Maji is reported to be a renowned Orthopaedic Surgeon, it can safely be stated that he had spoken from a position of authority.
All said and done, we find that Dr. G. Maji and the Members of Enquiry Committee are both in the same side of the fence in one aspect that the operation of left forearm of the complainant was not done properly by OP no. 1. In fact, the report of enquiry committee went a step further to conclude that ‘’post-operative advices follow up & guidance were not properly given resulting the present condition” which clearly indicates gross deficiency in service/negligence on the part of OP no. 1.In any case since both the members of Enquiry Committee as well as Dr. G. Maji personally checked up the patient (complainant), their candid observation about the methodology of treatment meted out to complainant by OP no. 1 bears immense significance.
At the same time, though the complainant complained of misbehavour/ill treatment on the part of OP no. 2 insofar asno conclusive evidence is put forth by the complainant to substantiate such allegation, OP no. 2 is exonerated from any liability.
Thus, considering the facts and circumstances of the case, materials and evidence on record and particularly keeping in mind the findings/opinion of Enquiry Committee as well asthat of Dr. G. Maji we hold that there was negligence on the part of OP no. 1 in rendering proper medical treatment to the complainant and therefore, complainant is entitled to get relief in the form of compensation for a sum of Rs. 60,000/- and litigation cost Rs. 5,000/-.
Both these points are, thus, disposed of in favour of the complainant.
Hence, it is
ORDERED
that the instant consumer case no. 15/2011 be and the same is allowed on contest against OP no. 1 and dismissed against OP no. 2. OP no. 1 is directed to pay a sum of Rs. 60,000/- as compensation together with Rs. 5,000/- as litigation cost to the complainant within 45 days from the date of communication of this order i.d. the complainant is at liberty to execute the order in accordance with law in which case, OP no. 1 shall be liable to pay interest over the total awarded amount @ 9% p.a. from the date of this order till compliance of this order in toto.
S.S. Ali A.K. Bhattacharyya
Member President
