23/10, Gariahat Road, Kolkata-29.                                                  ---------- Complainant

---Versus---

1)                   Dr. Prabir Kumar Banerjee,

27/B, Rowland Road, 5^th Floor,

Kolkata-20,  P.S. Shakespeare Sarani.                                  ---------- Opposite Party

Present :           Sri Sankar Nath Das, President.

                        Dr. Subir Kumar Chaudhuri, Member

                        Smt. Sharmi Basu, Member

Order No.   50    Dated  31/01/2013.

SHARMI BASU,   MEMBER

            The petition of complaint has been filed by the complainant Bachaspati Goswami against the o.ps. Dr. Prabir Kumar Banerjee. The case of the complainant in short is that complainant was a very active person who used to carry out regular physical exercises and all sorts of works. Suddenly he developed pain in the right knee as well as the left knee after an injury. As the pain became unbearable complainant consulted the o.p. who is an orthopaedic surgeon. Complainant took an appointment by booking a card  on payment of requisites fees at Peerless Hospital & B.K. Roy Research Centre where o.p. checked complainant and advised total knee replacement of both the right and left knees and he paid the requisites fees for the check up. Accordingly, o.p. advised complainant to get admission at the said hospital on 9.3.04 for total knee replacement of the right knee at first and o.p. further advised for replacement of the left knee later. It is stated that o.p. described the situation of complainant as grave and suggested that if complainant does not go for surgery he will suffer irreparable injury and there will be no treatment at later stage.

            Complainant, fearing worsening of the situation and as per advice of o.p., took admission at the said hospital on 25.3.04 for the said surgery under the care of o.p. On 27.3.04 operation of total knee replacement of the right knee was carried out by o.p. who was satisfied with the surgery and thereafter, complainant was discharged on 13.4.04. At the time of release o.p. interalia advised complainant several medicines and regular exercise and asked complainant to contact a physiotherapist of choice of o.p. for home rehabilitation. Thereafter complainant went to o.p. for further check up on 17.5.04 when complainant was given certain medicines. O.p. further asked complainant to meet o.p. after 2 to 3 weeks and carry out with the exercise.

            Further case of the complainant is that complainant felt severe pain at the place of surgery and as such visited o.p. on 21.6.04 and told o.p. that the pain, he was suffering, is abnormal and he cannot withstand such immense pain. Complainant further explained that the said severe pain had started suddenly. O.p. after hearing complainant, examined him and noted in his prescription about the pain and advised some medicines along with an advice for compress 3-4 times a day to address the pain. It was stated that the unbearable pain which complainant was suffering was suggestive of infection which o.p. due to his negligence and ego ignored to detect.

            Thereafter, the pain in the operated knee of complainant did not subside in spite of following the recommended medicines and treatment by o.p. Instead of the pain aggravated with time that led to difficulty in walking along with swelling of the foot. The pain being unbearable the complainant was compelled to contact o.p. over phone who advised complainant to continue with the medicines already prescribed along with the compress in a rude tone. It is pertinent to mention that o.p. over the telephone advised and assured complain ant that the pain which he was suffering from was very normal and occurs after all knee replacement surgery and as such he should not be worried about. It is stated that advising continuation of medicine over telephone in spite of complainant’s complaint of severe pain is a deficiency in service against the medical ethics.

            Ultimately as the pain became unbearable complainant on 16.8.04 visited o.p. with the said severe pain, swelling and difficulty in walking. O.p. after considering the condition of complainant advised for blood test for HB, TC, DC, ESR, CRP, Uric Acid, PPBS RA factor. O.p. interalia prescribe ed medicine Ceftum-500 gm and asked complainant to visit him with the reports. This was for the first time o.p. prescribed for blood test though  the pain was reported by complainant in  the month of June. It is stated that failing to advice blood test to determine cause of the severe pain on previous occasion is a deficiency in service.

            Complainant as per the advice of o.p. carried out the blood test. The report dt.17.8.04 revealed / detected the presence of Klebsiella Sp organism in the aspirated fluid which suggests severe infection in the operated area. The said report also revealed that complainant was interalia resistant to Cefuroxime a drug used to combat Klebsiella.

            Complainant continued with the medicines and further carried out the blood tests as prescribed by o.p. Accordingly, the haematology report recorded ESR count as 52 and the CRP count as 43. The said reports were suggestive of severe infection in the body of complainant. Complainant again visited o.p. on 2.9.04. On 2.9.04 complainant further underwent the blood examination that found CRP count as 45.3 and ESR 56. On 23.9.04 o.p. went on treating complainant with painkiller as of routine and without due and proper care and without even being able to determine the reason of the pain. On 23.9.04 o.p. further interalia advised complainant to continue with Ceftum 250 two times daily.

            Accordingly, the blood test of complainant was carried out and the said blood test report dt.14.1.05 showed the CRP count as 65%. Another report dt.18.1.05 showed the CRP count as 81.3. It is pertinent to mention that the normal count of the same is 1-5 mg/l.

            Dr. Chandrasekhar Dhar operated complainant on 24.1.05 for removal of prosthesis fitted in the right knee. The operation note clearly indicated that both tibia and femoral of right knee were grossly eroded and filled with infected materials. Both the condyles have significant bone loss due to this infection. All dead and infected tissue thoroughly debrided, washed and then closed with Tobramycine impregnated cement spacer in between femur and tibia. Complainant further took admission to Calcutta Medical Research Institute for revision surgery of total knee replacement under Dr. Chandrasekhar Dhar on 18.3.05. After the said surgery on 21.3.05 Dr. Chandrasekhar Dhar advised certain medicines and for further blood test. Complainant was thereafter discharged on 4.4.05. Complainant had to undergo surgery thrice to recover from the infection that grossly eroded the bones and caused loss of the same and complainant had to incur Rs.2 lakhs for his treatment due to sheer negligence of o.p. The said infection was caused long back that was apparent from the blood test reports as the tissue culture report revealed the growth of Klebsielle species on 17.8.04. The same was well within the knowledge of o.p. who completely ignored the same and advised certain medicines that were also infective. O.p. acted negligently which is apparent on the face of the record and such deficiency in service on the part of o.p. has led to severe physical as well as mental harassment to complainant who has lost his ability to walk without a support as a result he has been deprived of his work as consultant as the same required extensive travel. Hence the case was filed by complainant with the prayer contained in the petition of complaint.

            O.p. had entered his appearance in this case by filing w/v and denied all the material allegations labeled against him and prayed for dismissal of the case on the ground that there is no lapse on the part of o.p. in the matter of treatment of complainant and the instant complaint has no basis at all and it has been avert by o.p. that patient had hypertension and was a smoker and used to take night capsule and complainant underwent TURP in 2003 and complainant was not having any urological problem at the time of operation and complainant had accidental slip while he was undergoing physiotherapy on  3.4.04 and o.p. has further submitted that the instant case has been filed just to harass the o.p. and is liable to be dismissed.

Decision with reasons:

            We have gone through the pleadings of the parties, evidence and documents in particular. From the discharge certificate dt.4.4.05 it is seen that through medial long incision after reflecting patella with quadriceps, cement spacer removed, bone defect seen in the lateral cond and both tibia and femur (right). It is mentioned by Dr. Chandrasekhar Dhar in operation-note that both tibia and femoral of right knee were grossly eroded and filled with infected materials. Both condyles have significant bone loss due to that infection and the blood test report of the patient revealed that complainant was resistant to cefuroxime drug. It is further seen from the record that complainant had to undergo three operations in his knee and from the record we find particularly from the discharge certificate, operation note of Dr. Chandrasekhar Dhar, MBBS (Cal), MRCS (Edin) and medical report that there was some sort of negligence apparent on the face of the record on the part of o.p. in course of post operative stage and administering medicine which seemed to be resistant to the complainant and all these aspects taken together caused damage of the knee of the complainant.

            It is opined by this Forum that the operation note and discharge certificate of Dr. Chandrasekhar Dhar, MBBS (Cal), MRCS (Edin) should be given credence to determine whether o.p. is liable for medical negligence or not and the same undoubtedly proves that o.p. is negligent. It is also needed to be mentioned that the normal range of CRP(C Reactive Protein) is 1 to 5 mg/l. But as per the test report of blood of CRP count of the patient / complainant was 43 mg/l and the said report was also revealed that there was presence of Klebesilla sp organism in aspired fluid which suggests severe infection in the operated area of the complainant. But after going through the aforesaid blood report, the o.p. prescribed Ceftum-250, where the patient / complainant had resistively against the composition of that drug.

            It is observed from the Medical Literature viz. Principle of Internal Medicine, Harrison and that of Davidson   that in case of post surgical disputes it is to be considered as latches to perform the duties and negligence to exercise an ordinary degree of professional skill and competence of any surgeon / medical practitioner and at all unethical to prescribe for blood test after 56 days from the date of feeling of pain at place of surgery of the patient. Actually it was apparent from the record that the complainant went to the o.p. on 21.6.04 with complain of severe pain at the place of surgery and he was advised some medicines but was not prescribed for blood test by the o.p. The complainant was in contact regularly with the o.p. and informed about his severe pain at operated area but only on 16.8.04 o.p. prescribed for blood test. Therefore, we are of the opinion that o.p. has committed medical negligence which also crystal clear from the blood test reports of dated 2.9.04, where CRP count of the complainant was 43mg/l and on 22.9.04 it was 45.3 mg/l (increasing rate). But o.p. without due and proper care after going through the aforesaid blood reports advised complainant to continue with the medicine Ceftum-250 two times daily.

            Here, we are referring the landmark judgment of Hon’ble Supreme Court in the case of V. Kishan Rao vs.  NikhilSuperSpecialityHospital in Civil Appeal No.264 of 2010, arising out of SLP(C) No.15084 of 2009, where the Hon’ble Apex Court has been pleased to observe that where palpable error is apparent from record, expert evidence is not mandatory. Therefore, in the light of above discussion, we have no hesitation to hold that o.p. being medical practitioner is liable for medical negligence towards his patient / consumer causing mental agony, financial loss, tremendous harassment and forever losing his ability to walk without support.

Ld. lawyer of o.p. referred to certain case laws published in 2009 CTJ 581 Supreme Court (C.P), 2010 (1) CPR 167 (S.C), 2003 CTJ 775 (C.P) (NCDRC) etc. But we find that the case laws referred by ld. lawyer of o.p. are hardly applicable in the context of the facts and circumstances disclosed on record.

            It is needed to be mentioned that the entire record of the instant case reveals that the jurisprudence of  ‘Res ipsa loquiter (the thing pursue itself) shall be applicable in this case and the o.p. has miserably failed to prove that he has taken care and done his duty according to professional standard. We are also highlighting the decision of Hon’ble Tamil Nadu,SCDRC (June,2011.CTJ) in the case of  Sri Ramchandra hospital Vs. Manickam and another, where it is mentioned that in a case of Medical Negligence, to reach a just conclusion, always better to have the opinion of expert doctor having experience of the disease. In the instant case Dr. Chandrasekhar Dhar, MBBS (Cal), MRCS (Eden), being Medical Practitioner of same field (Orthopedic Surgery) virtually pointed out the medical negligence of the o.p., which is apparent from the facet of record.  In the light of above findings and keeping eye to all the facets taken together we are of the views that o.p. had deficiencies  and medical negligence while discharging duties to consumer / complainant and complainant is entitled to relief.

            Hence, ordered,

            That the petition of complaint is allowed on contest against the o.p. O.p. is directed to pay to the complainant a sum of Rs.2,00,000/- (Rupees two lakhs) only for the medical expenses incurred by complainant for his treatment and is further directed to pay compensation of Rs.1,50,000/- (Rupees one lakh fifty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.

            Supply certified copy of this order to the parties free of cost.