PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

C.C NO- 106/2012

Present-Dr. Ramakanta Satapathy, President,

  Sri.. Sadananda Tripathy, Member

Ashok Kumar Ratha, aged about 58 years,

S/O- Late Muktari Rath,

R/O- Dhanupali, P.O/P.S- Dhanupali,

Dist- Sambalpur                                                                                        …..Complainant

Vrs.

1. Dr. Nirmal Chandra Mohapatra

          ORTHOCARE

          Infront of Church, G.M. College Road

          PO-Sambalpr, PS-Town, Dist-Sambalpur.

2. Sparsh Nurshing Home

          Near Pani Tanki, Po-Modipara

          Ps-Town, Dist-Sambalpur.                                                                                         ….Opp. Parties

Counsels:-

1. For the Complainant  :-  Sri. Sanjaya Kumar Hota, Advocate & Associates.
2. For the O.P-1              :-  Sri A.K.Panda, P.K.Pradhan, Advocate & Associates.
3. For the O.P-2              :-  P.K.Pradhan, Advocate & Associates.

DATE OF HEARING : 04.04.2022, DATE OF JUDGEMENT : 11.04.2022

Dr. Ramakanta Satapathy, PRESIDENT:

1. This is a case of ‘Medical negligence’ alleged by the Complainant against the O.Ps. The brief case of the Complainant is that on 18.11.2011 the complainant met an accident slipping in the bathroom in a hotel at Allahabad, caused fracture of his left leg bone. Dr. A.C.Johory of ‘ Abhayaraj Fracture Orthopadics clinic’, Allahbad examined and advised to go back to Sambalpur for convenient treatment in native place. The Complainant left Allahabad on 18.11.2011, reached Sambalpur on 20.11.2011 and admitted in the nursing home of O.P. No.2 on the advice of the doctor, O.P. No.1.
2. The Complainant had undergone an orthopedic operation with fixation of a PFN in the bone of his left thigh on 21.11.2011. On the advice of the O.P. no.1 the Complainant was discharged. The Complainant deposited an amount of Rs. 14,845/- as per the advice of the receptionist on the day of discharge.
3. The Complainant on 02.02.2012 experienced excruciation pain in the fractured leg, consulted the O.P. No.1 on 05.02.2012. The O.P. No.1 prescribed some medicines but there was no any relief. The Complainant purchased about Rs. 20,000/- worth medicines.
4. The Complainant again consulted the O.P. No.1 on 02.07.2012, further X-ray was made and it revealed that the PFN affixed to the fractured bone was broken in to two pieces. O.P. No.1 advised for another operation for extraction of the broken nail. Having without any fault the Complainant had undergone the second operation, spent huge money to-words medicines and doctor’s fees.
5. It is further allegation of the Complainant that the O.P. No.1 & 2 made an unholy alliance for personal gains by supplying and implanting sub-standard materials leading to breakage inside the human body.
6. The cause of action for the present Complainant arose on 20.11.2011 and on each subsequent day when second operation performed on the body of the Complainant within the jurisdiction of this court.
7. After appearance the O.P. No.1 doctor submitted his written version and contented that the O.P. No.1 after observing all formalities conducted the surgical operation of the Complainant. Surgery was performed in minimally invasive method in most advanced technique by not opening the fracture site. Fracture was reduced under C-Arm and fixed with intra-modullary nail device (PFN). Fracture position after surgery was good & post operative X-ray was satisfactory. As surgery was successful, Complainant was not given plaster after operation and was allowed to do limb exercise next-day after surgery.
8. The Complainant was discharged from the Nursing Home with as assurance of post operation care. The contention of the O.P. No.1 is further that on 05.02.2012 after due diagnosis it was found that the pain was due to O.A.(Osteoarthritis) of knee. X-Ray of the hip shows the fracture union was in progress. The pain was not due to the hip problem. The O.P. No.1 only prescribed medicines for Osteoarthritis for 6-8 weeks. The Complainant has not spent-medicines for more than Rs. 20,000/.
9. The O.P. No.1 further contented that- on 02.07.2012 from x-ray it revealed that the PFN affixed to the fracture bone was broken in to two pieces and there was hardly any improvement in recovery of the fracture pleaded by the Complainant are not true. The Complainant consulted on 02.07.2012 after a long gap complaining pain in the thigh. After thorough examination the Complainant was advised for revision surgery with exchange nailing but the Complainant not agreed as it was a major surgery. The Complainant wanted a shorter procedure as he was walking. The O.P. No.1 in such situation decided to Dynamse the fracture by removing the screw at broken site to stimulate the fracture to heal and then remove the nail and remaining screw.
10. The O.P. No.1 further contented that another operation undertaken to extract the broken PFN is not correct. On 15.07.2012 the Complainant was admitted in the Nursing Home for surgery. From the history of the Nursing Home it reveals that on 18.06.2012 the Complainant had a fall and then developed fracture site and difficulty in walking from x-ray report it reveals that PFN was broken at proximal screw site with improper callus formation.

The O.P. No.1 contended that the surgery was posted for removal of screw at broken site for dynamisation operation and conducted on 16.07.2012, screw at the broken nail site was removed to dynamise the fracture.

Dynamisation is a process where micro motion is allowed at fracture site to stimulate bone formation. The broken nail which was locked with one screw was left in situ to be removed after the fracture united.

The O.P. No.1 is an orthopedic surgeon and taking the condition of the patient in to consideration decided to remove the broken screw over the broken PFN, and removed successfully. On 17^th July after surgery the Complainant returned home with walking stick, after discharge painless.

11. The contention of the O.P. No.1 is that the operation executed by the O.P. No.1 is as per medical science and procedure for the good health of the patient/Complainant. The surgery was necessary for the Complainant as he complaint pain at the broken site. There is no any supply of sub-standard materials as PFN was supplied by SSEPL a company with ISO certification, there is no any unholy alliance between the Opposite Parties.
12. The O.P. No.1 further contended that the Complainant is a hypertensive chronic alcoholic & chain smoker which resulted delayed union of fracture and subsequent breakage of implant. After discharge from nursing home due to negligency and improper care of himself, the Complainant fell down and damaged the implant for speed recovery the O.P. No.1 had taken proper care, caution, adopted the procedure acceptable to medical science and requirement of the patient.
13. The O.P. NO.1 contended that this complaint is a false and fabricated case against the O.P. No.1 to defame him and abstract money.
14. The O.P. NO.1 challenged the maintainability of the case on the grounds, lack of expert opinion to proceed against the doctor and medical institution (O.P. No.2). The case is bad on the point of non-joinder of National Insurance Company as a party as the O.P. No.2 is indemnified with insurance.
15. The O.P. No.2 ‘Sparsh Nursing Home’ Sambalpur after appearance in this case submitted its version and conducted that the Complainant being referred by O.P. NO.1 admitted in to Nursing Home on 20.11.20211 after thorough check up by O.P. No.1. The allegation of Complainant medicine cost Rs. 29,856/- is not correct.

PFN was successfully implanted by the treating surgeon who is a gold medalist in MBBS and M.S in Orthopedics. As no complaint was raised by Complainant, he was discharged from Nursing Home on his request with proper medicine and post-operational consultation.

On 02.07.2012 on advice of O.P. No.1 X-ray was made of the Fractured thigh and as there was hardly any improvement in recovery of the fracture of the Complainant, this allegation is denied.

Second Operation was conducted on 16.07.2012 by O.P. No.1, PFN was supplied by SSEPL a ISO certified company and there is no any unholy alliance between the O.Ps.

16. Both the O.P. No.1 & O.P. No.2 contended that there is no any deficiency in service of the O.Ps nor any medical negligence. With due care and caution the Complainant has been operated twice successfully. A Vexatious claim has been made by the Complainant to defame the O.Ps further National Insurance Company has not been made a party.
17. After careful examination of the complaint petition, version of the O.Ps and perusal of the documents the following issues are framed for just decision of the case.

1. Is there any cause of action for the present complaint ?
2. Whether the O.Ps are negligent in their duties giving service to the Complainant.
3. Whether the Complaint suffers from non-joinder of necessary party ?
4. What relief the Complainant is entitled to get ?

Issue No.1:- Is there any cause of action for the present Complaint?

It is the admitted case of the Complainant and O.Ps that the Complainant was admitted in O.P. No.2 nursing home under the supervision of O.P. NO.1 doctor. Successfully the Operation was conducted and the patient was discharged to his home.

For the second time when the Complainant reported his accelerating pain, X-ray was made and it was detected that PFN affixed to the fractured bone was broken in to two pieces at proximal screw site with improper callus formation. With the help of O.P. No.1 the Complainant agreed to remove the broken screw following dynamisation process and successfully screw over PFN nail site was removed.

From the report of Dr.(Prof) U.N.Mishra, Consultant, Orthopedic surgon dated 10.11.2012 it reveals that “……..had implant failure, removal of femoral……….” For the first operation conducted by the O.P. No.1 the present case has been initiated with an allegation that the operation no.1 is a failure one. Certainlythe question involved in this case is the point of determination whether O.P. No.1 performed the operation properly or not and the O.P. nO.2 supplied quality medical equipment or not?

Accordingly, the Complainant as spent huge amount of money to-wards medical treatment, operations, sustained pain for the fracture and operation, has a cause of action for the case. Accordingly the issue is answered.

Issue No.2:-    Whether the O.Ps are negligent in their duties giving service to the                                     Complainant?

This issue is a vital issue in the present Complaint case.

In a medical negligence case the following factors are important.

1. The Doctor must owe duty of care of the patient.
2. The Doctor must have made a breach of the duty and
3. The patient must have suffered damaged due to such breach.

In the present case the Complainant had undergone the orthopedic operation with fixation of PFN in the bone of his left thigh on 21.11.2011. As per pleading of the Complainant from 21.11.2011 till 02.02.2012 no any complaint has been alleged against the O.Ps, only after 02.02.2012 the Complainant experienced pain in the fractured leg, took medicines from O.P. No.1 but no any relieve experienced. On 02.07.2012 consulted the O.P. No.1, the O.P. NO.1 advised for further x-ray and here it was detected that the PFN Affixed to the fractured bone was broken in to two pieces.

From the medical history of the Complainant it reveals that in June 2012 a fall of the Complainant developed pain at the fracture site and difficulty in walking. To substantiatehis case the Complainant has not filed any documents for the period 02.02.2011 to 02.07.2012. During the second operation period the Complainant has given his consent for operation. Further it reveals from the medical history of Complainant that he is suffering from hypertension.

From the aforesaid back-ground it is clear that the O.P. NO.1 has taken all reasonable care of the Complainant and in this score the Complainant failed to prove the negligence of the O.P. No.1 and also O.P. No.2

It is true and admitted by the parties that the PFN has broken at proximal screw site and for removal the O.P.No.1 has taken all steps.

The Complainant alleged that the PFN affixed is of no good quality. In answer the O.Ps categorically mentioned that the PFN used in the body of the Complainant was supplied by SSEPL a ISO certified company. The Complainant to challenge the quality of the product not made SSEPL Company a party.

From the aforesaid back-ground it is clear that there is no any medical negligence on the part of the O.P. No.1 & 2, accordingly the issue is answered in favour of the O.Ps.

Issue No.3:- Whether the Complaint suffers from non-joinder of necessary parties ?

In the present case although the O.Ps have categorically pleaded about the SSEPL Company but the Complainant not made a party. Accordingly, the quality of the medical product used in the body of the Complainant has not been properly agitated by the Complainant, although a simple allegation made that the quality of PFN is not good.

Accordingly, the case suffers from non-joinder of necessary party.

 Issue No.4:- What relief the Complainant is entitled to get?

The citations filed by the Complainant (2010) 5 & CC 513, 2010(1) CPR 319(HC) are not applicable in this case as the present case is a clear case of consent given by Complainant to the O.Ps for surgical Operation.

In Complicated cases of medical negligence ‘expert opinion’ is required. In the instant case the Complainant has not properly interpreted the medical opinion given by, Dr. Sukumar Mishra of Kalinga Institute of Medical Science dated 10.11.2012. “ ……. Has implant failure, removal of femoral (PNX)……..”. The circumstances which led to implant failure has not been discussed by the expert and the opinion is after about one year of the surgical operation of the Complainant.

Accordingly, taking in to consideration of all the issues I am of the view that although the Complainant suffered a lot due to implant failure of PFN, remoteness of damage and breach of duty of the O.Ps can not be decided before this commission in the instant case, as the circumstances made the issues civil in nature and accordingly it is ordered.

                  The Complaint petition is dismissed on contest. The Complainant is at liberty to approach the Civil Court making SSEPL Company as party. As the Complaint was pending for a longer period since 2012, the delay in filing the civil suit is hereby condoned for initiation of the suit a fresh. No. cost.

             I agree,

-Sd/-(Shri. S.N.Tripathy)                                                        -Sd/-(Dr. R.K.Satapathy)  

         MEMBER                                                                                  PRESIDENT

                                                            Dictated and Corrected

                                                                             by me.

                                                            -Sd/-(Dr. R.K.Satapathy)    

                                                                    PRESIDENT