Ld. Advocate(s)

                             For Complainant: Subhasis Roy

                             For OP/OPs : Kajal Ghosh,  

          Date of filing of the case               :12.08.2016

          Date of Disposal  of the case        :27.06.2024

Final Order / Judgment dtd.27.06.2024

The allegation of medical negligence against the OPs by the complainant is the crux of this case. As per the complaint the basic fact of the case is that the complainant on 12.06.2015 was going to Kalyali to attend  an interview by riding Motor cycle. Suddenly he met with an accident and thereafter he was admitted to J.N.M Hospital, Kalyani for  necessary treatment. Due to the said accident he got severe injury at his right leg and as nothing was improved so his relatives discharged him from hospital on 30.06.2015 and thereafter, he was medically treated by OP no.1 Dr. Saurav Banerjee of Kalyani on 30.06.2015. After examining the OP no. 1 advised him to operation and accordingly the complainant was admitted to OP no. 2 Nursing Home i.e Bindubasini Nursing Home as per advice of OP no.1 on 01.07.2015.          OP no. 1 medically treated the complainant at OP no. 2 Nursing Home and he was discharged from there on 04.07.2015 after operation by OP no. 1.  The complainant paid Rs. 30,000/- to OP no. 1 and 2 against proper money receipt. Subsequently, the complainant again was medically treated by OP no. 1 on 16.07.2015. OP no. 1 prescribed some medicine and injection. The complainant was medically treated by OP no. 1 up to 23.07.2015. Since there was no improvement of his injury so the complainant consulted with Dr. Rajib Sarkar Pro-OP no. 3 (M.S. Surgeon) on 27.08.2015. Pro-OP no. 3 advised him for urgent hospitalization to save the legs. Subsequently, the complainant was medically treated at Christan Medical College and Hospital  (Vellore ) Pro-OP no. 4 on 05.09.2015. After prolong treatment he was discharged from Pro-OP no 4 on 15.09.2015. The Pro- OP no. 4 diagnosed that the complainant was suffering from Right Tibia Chronic Osteomyelitis infected implant PC IM nailing. The complainant paid Rs. 1,40,695.73 for treatment at Pro-OP no.4. As per advise of Pro-OP no. 4 the leg of the complainant was amputated from Knee for which he became physically handicapped   forever due to negligence on the part of the OP no. 1 and 2. The complainant suffered painful situation and he lost his normal life. Presently the complainant cannot walk without non weight bearing crutch. So the present case is filed. Cause of action arose on 30.06.2015 and thereafter each day till filing of the case. Due to negligence of OP no. 1 and 2 the complainant suffered mental pain and agony and physical damage. The complainant incurred Rs. 75,00,00/- for medical purpose. Complainant prayed for an award for Rs. 4,00,000/- towards cost of medical treatment, Rs. 15,00,000/- towards  mental pain and agony and perpetual  damage of his leg and Rs. 10,00,000/- towards litigation cost.

 The OPs defended the case by filing W/V wherein OP no. 1 challenged the case as not maintainable and barred by limitation and bad for defect of the parties. The positive defence case of OP no.1 is that the OP no.1 Dr. Saurav Banerjee saw the patient party for the first time on 30.06.2015 with x-rays. It is mentioned in the prescription that the OP no. 1 did not see the patient on 30.06.2015. The patient had a road traffic accident on 12.06.2015 and was admitted to JNM hospital Kalyani with open fracture of both bone of right legs. OP no. 1 saw the patient first in the nursing home of OP no. 2 in the afternoon on 01.07.2016 and the complainant had a tight cast and on removal of his legs / calf. He had hard wasting of muscles and there was no toe movement and a large charred skin was seen on post laternal aspect of leg. The condition of the patient was explained. As the fracture was 25 days old so closed reduction could not be done. Hence the site of facture was opened, debrided, facture ends (reduce) and internal nailing was done during post operation. He was given medication to improve circulation, controlled infection. Thereafter the complainant was discharged but he did not come for dressing check up.  The complainant came after 14 days i.e 16.07.2015 for stitch removal. OP no. 1 removed the stitches and discharged and advised him for Antibiotic and regular dressing of the wound due to sloughing of the charred skin. Patient again came on 23.07.2015 after 7 days there was serosanjuineous discharged from the incision wound. The OP no. 1 explained and stated that antibiotic may be taken as per prescription. The complainant did not turn up thereafter,  there is no negligence  on the part of the OP no. 1. OP no. 1 claimed that the case is liable to be dismissed with cost.

 OP no. 2 contested the case by filing W/V with remark that the  present case is not maintainable and there is no cause of action.  Positive defence case of OP no. 2 in brief is that the OP no. 2   Bindubasini  nursing home is a well known nursing home and it has  got trained staffs with all kinds of arrangement are available, nurse of OP no. 2 took  care the deceased. The OP no. 2 provided all kind of medicines, injections and saline to the patient as per advice of the consultation surgeon to the patient. There were no latches on the part of the OP no. 2 in providing treatment. The OP no. 2 there was no negligence. OP no. 2 claimed that the case is liable to be dismissed with cost.

 Pro-OP no. 3 filing W/V stating inter –alia that the case is bad for mis joinder of necessary parties. Positive defence case of Pro- OP no. 3 that complainant approached Pro no. No. 3. On examination it was noted that “infected nail on right leg” and some opinion was advised and after due examination he was advised to urgent hospitalization so there is no negligence on the part of the Pro-op no. 3. Pro-OP no. 3 claimed the case is liable to be dismissed with cost.

          Pro- OP no. 4 filed W/V and did not challenge the case of the complainant and supported the complainant the positive defence case of  Pro-Op no. 4 is that after careful examination of the patient, with all available history,  he was diagnosed with chronic  osteomyelitis and  and underwent  implant  exits with debridement on 07.09.2015. He was given antibiotic based on cultural report. He continued to have discharged from posterolateral wound on the leg. He was then taken up for redebridement with external fixator application intraoperatively, the diseased segment of tibia and fibula were excised and unhealth tissues were debrided. The proximal and distal segments of tibia were stabilized using an external fixator  above knee slab thereafter  He was shifted to the ward and was given antibiotic for six weeks and was discharged on 15.09.2015. He was asked to review in OPD to plan for soft tissue covered for posterolateral wound and subsequent definitive procedure for the fracture.  On 29.11.2015 the complainant under gone two operations in the right leg. He had purulent discharged from wounds. He was discharged on 23.122015 with clear instructions and to review on 02.1.2016 Pro – OP no. 4 prayed for passing a suitable order.

          The conflicting pleading of the parties demand for ascertainment of the following points for proper adjudication of this case.

Points for Determination

Point No.1.

Whether the  case is maintainable  in its present form and prayer.

Point No.2.

Whether the  case is bad for non -joinder of the necessary parties.

Point No.3.

Whether the complainant is entitled to get the relief prayed for.

Point N. 4 

To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1 and 2.

 Both the points relate to ascertainment as to whether the case is maintainable or not. The complainant filed the present case u/s 12 of the C.P.Act. The OP no. 1 and 2 challenged the case as not maintainable and bad for defect of the parties.

 Ld defence counsel for OP no. 1 argued that the complainant Biswajit Saha was initially medically treated at JNM hospital Kalyani wherein he was medically treated for a considerable period but the said JNM Hospital Kalyali is not party to this case.

 Ld. Defence counsel rightly argued that JNM Hospital Kalyani is a government hospital and as such as it cannot be made a party to this case

 Argument is reasonable and accepted in as much as the  C.P.Act does not allow to bringing the government within the purview of the C.P.Act and case against the government hospital is not maintainable accordingly. So not making party to the JNM hospital Kalyani does not vitiate the present case and as such it cannot be held that the present case is bad for defect to necessary parties

 The complainant proved the receipt for payment of fees of Rs.30, 000/- to the OPs. OP did not deny that the complainant paid the fees. So the relation between the complainant and the ops came under the purview of the C.P.Act. Accordingly, the complainant is a consumer under the C.P.Act. Both the parties reside within  the territorial jurisdiction of this Commission.

 The amount of money involved towards fees and the relief  claimed also falls within the purview of the pecuniary jurisdiction of this Commission.

 Accordingly, having considered the factual aspect vis-a -vis the provision of law  the commission is of the view that the present case is not barred by any provision of law and as such it is legally maintainable in the given facts and circumstance of this case.

 Point 1 and 2 are therefore decided in favour of the complainant positively.

Point No.3 and 4.

Both the points have  very close nexus with each other and such as these are taken up together for brevity and convenience of discussion.

 It is admitted fact that OP no.1 medically treated the complainant on 30.06.2015. It is the specific  case of the complainant that OP no. 1 medically treated the complainant on 30.06.2015 at his chamber but the OP no. 1 claimed that he did not see the patient on 30.06.2015 and same was mentioned in the prescription. The best document in this regard is a medical prescription of the complainant issued by OP no. 1. the complainant proved the said document as annexure -2. As per annexure- 2 in   the corner of the prescription it is written that patient not seen. Annexure-2 is a medical prescription issued by Doctor Saurav Banerjee  wherein it is mentioned inter alia that 20 days old facture with some advice for test and it is written as “done”. He was further advised to be admitted in Bindubasini Nurshing Homefor ILNA Tibia.

 Ld. Adv for the complainant vehemently objected to this said pleading and argument of the OP no. 1. He argued that how a doctor could conduct medical treatment of the patient without seeing him.

 The argument has reasonable force. In fact it is pre-requisite condition that Dr. must examine  the patient and  thereafter he would start his  medical treatment.  In the instance  case mere a short note   in the corner of the   prescription  that  that “PT not seen”,  how would suffice  the defence plea that patient was not seen. Even if for  the sake of the argument it is presumed  that patient is not seen then it casts  a serious imputation  against treating  Dr. OP no. 1 about his nature  of the treatment, medical ethics  and  over all nature  of practice.

 It is very difficult to accept as to how the treatment of the patient can be started or the disease can be diagnosed without  examination of the patient. So at threshold,  starting of  the treatment by Dr. Seems to have not started his medical job fairly and properly. The attention of this commission is drawn to the effect  that Dr. himself advised the patient to be admitted to a particular nursing home that Bindubasini Nursing home.

  The said prescription Annexure-2 also does not reflect any objection as to on the basis of which thing he prescribed for certain test and chest x-ray, ECG, blood sugar, haemoglobin etc test. It is fact that patient had under gone certain medical treatment previously at JNM hospital but in the prescription there is no observation column wherein it is written that OP no. 1 Dr. had consulted with the previous medical document of the patient. So the OP no. 1 appears to have conducted the medical treatment at the threshold in a causal manner.

Annexure - 4 A and B are the money receipts for payment of Rs.15,000/- to the said nurishing home towards medical treatment of the complainant. It is evident that the complainant incurred cost of medical treatment to the extent of Rs. 30,000/-. Annexure -3 is the discharge summary issued by OP no. 2 Bindubasini  Nursing home  wherein the date of  admission of   the complainant  is 01.07.2015  and date of discharge is 04.07.2015. In the said prescription Annexure -3 is signed by OP no. 1. It is found that except some medicine no advise was given to the patient for following up the instruction of the Dr. In fact the OP no. 1 did not advice anything for the safety of the operated portion so that it can be prevented from any kind infection. Even there is no remark in the said discharge summary. (Annexure -3) for review of the patient. Accordingly the patient seems to have went to OP no. 1 again on 16.07.2015 at his own instance and OP no. 1 after examining again prescribed some medicine. In  Annexure -5 dated 16.07.2015 the OP no. 1 Dr. also did not prescribe any follow up action  except referring some medicine.

 The patient complainant again went to the Dr. OP no. 1 on 23.07.2015 but at that time the OP no. 1 did not advice anything to prevent any kind of future infection except some medicine and saline wash.

 The complainant was thus compelled to leave  the treatment of OP no. 1 as  the situation is claimed to have been deteriorated.

 The complainant proved the prescription of Dr. Rajib Sarkar MS (surgeon) orthopaedic. OP no. 3 seems to have clearly stated in his prescription dtd. 27.08.2015 that it is a case of infected nail with multiple discharging tissues. OP no. 3 further advised for urgent hospitalisation. Accordingly the complainant was final medically treated at CMS hospital Vellore Tamil Nadu.

 The OP no. 1 took another defence plea that the complaint was discharged but he did not come for dressing cheek up and came after 14 days from 16.07.2015 for stitch removal.

 As per the documentary evidence  being Annexure -2 which is medical prescription of OP no. 1 wherein the patient was operated on 30.06.2015 but there is no advice for review within the specified  period. So after the discharge from the hospital on 04.07.2015 the patient could not follow any particular date for review. Accordingly the patient came on 16.07.2015. In the prescription of Annexure -2 there is no advice of dressing check up. So the defence plea as stated in the W/V could not be proved up to the hilt. Therefore the defence case  has no leg to stand. Even on 16.07.2015 when the patient came to OP no. 1 the   Dr. Also did not advise for review of the patient after a certain specified period.  So it cannot be said that the complainant patient did not follow the advice of the OP doctor.

 It  is further found from the case record that the patient was  very much sincere  in  as much as  after the  second treatment he again  came to the Dr. OP  no. 1 after 7 days,  despite  not having  any instruction  by the OP no. 1  Dr. for review of the condition. Therefore, the defence case that the complainant did not turn up to the OP no. 1 doctor is not tenable in the given facts and circumstance of the case.

It is further found from the case record that OP no. 1 tried to make out the defence case that the feet of the complainant was burnt through hot silencer of the motor cycle. Accordingly OP no. 2 cross examined  the PW -1 the complainant   that complainant did not take proper care of his alleged right foot skin burn injury, so all his future complication grew up. The said suggestion implicated that OP no. 1 for the first time made out defence case during cross examination which is not made out in his written version. In the W/V the OP no. 1 only defended the case that the complainant did not turn up after 23.07.2015 and he did not come for dressing check up.

If we peruse the medical prescription of OP no. 1 Dr., there is no iota of the defence case that it is mentioned in any corner of the two prescriptions   of the said two medical prescriptions dtd 30.06.2015 and 16.07.2015 or 23.07.2015 that the patient complainant had any burn at his right foot skin. The nature of disease is mentioned as ILNA Tibia, 29 days old facture in right leg.

 Thus the defence case which   has been tried to make out through cross examination has no leg to stand and it could not be proved up to the hilt.

 It is fact that complaint has  to prove his case and he cannot not succeed on the weakness of the defence case but if the complainant succeeds to prove his main case then the onus  is shifted upon the OP to prove his own defence case. In the  instant case the OP could not establishe as to why the case of a facture turned into a case of infection which led to amputation of the patient of his leg.

OP no. 1 was specifically asked during cross examination as to whether he had given any note about his observation or any advice.

OP n. 1 Dr. answered that medical record will speak.

 It means that OP no. 1 Doctor avoided the specific question put by the complainant in cross examination. In common parlance as per the medical rules Doctor should specifically give observation regarding the disease of the patient, or the nature of ailment and the observation done after medical check up. But in the instant case treating Doctor OP no. 1 appears to have not given any observation or advise in the medical prescription. So evading a particular question by the witness implies that he has tried to conceal the specific fact which he ought to have stated before the court of law. In almost all the questions put during the cross examination to the OP no1. Doctor has answered as  record will speak.

 The complainant adduced both the oral and documentary evidence. In oral evidence in the form of affidavit in chief the complainant categorically stated in support of his case. The said evidence could not be properly discarded. On the contrary during the cross examination the Complainant answered in such a manner which are very important to strengthen the case of the complainant. Complainant was asked during cross examination as to whether he would call any medical expert as his witness to which he answered negative.

 The attention of this commission is drawn in this respect but most important point for consideration is that the OP also could have called for medical expert in this case. But OP appears to have not filed any petition for seeking medical expert opinion.

Ld. Adv for the complainant argued that a court is expert of all experts. So court itself can express opinion in regard to any points.

Argument is reasonable in as much as the OP could not specify  as to whether the medical expert opinion is sought for.

 The argument is reasonable in as much as the OP could not specify as to why the medical expert opinion is necessary.

Plain regarding of the prescription of OP no.1 Doctor clearly show that he never expressed any observation or advice after checking up the complainant patient. So on the face both the prescriptions it is crystal clear that OP did not apply his mind properly  in treating the  patient or in other words he medically treated the complainant patient in a casual manner.

Ld advocate for the complainant drew the attention of the Commission in regard to the observation of C.M.C Vellore where the complainant was again medically treated. As per the observation / history “two weeks following the surgery he had developed push discharge from surgical site”.  He had further argued that within 2 weeks means he had under gone operation on 01.07.2015 and after 2 weeks means 16.07.2015. At that time the operated operation developed push discharge from surgical site. So Doctor had to be careful about the treatment of the patient but on 16.07.2015 OP no.1 Doctor did not mention any observations regarding said discharge of push or any other side effect of the operation in the medical prescription.

The argument has reasonable force. As per the observation of C.M.C Vellore the “local examination of the Limp showed discharging sinuses over the distal hub of the right tibia”.

This implies that OP no. 1 Doctor was not sufficiently careful in treating the complainant patient.

 Ld. Adv for the complainant further argued that the case is hit by the principle of the Res ipsa loquitur.

 The argument is acceptable. In that regard he referred to one decision reported in 2015 (4) C.P.R 286 (NC) wherein it was held that OPs should be careful during follow up the treatment. It is apparent that post operative care from OPs was casual and not as per standards. It was  the duty of the OPs to investigate non-healing surgical wound. Hence, it was deficiency in service “not standard of practice”.

The said case law squarely applies here.

 Ld Adv for the complainant further referred to one decision reported in 2015 (4) CPR 288 (NC) wherein it was held that OP did not provide history card and details of treatment. Since he did not produce record of indoor patients, held the doctor is negligent in providing the medical services.

 Case law is applicable here.

 In another decision referred by Ld. Adv for the complainant reported in 2015 (4) CPR 548 (NC) where in it was held that the condition of the patient was deteriorating because of the infection. Patient lost  four fingers due to negligence of hospital staff, doctrine of Res ipsa loquitur is applicable. It was held that hospital is liable for negligence.  The compensation award given.

The said case law is applicable here.

 Ld Adv for the defence counsel could not refer any counter ruling to discard the aforesaid case laws referred by the Ld. Adv for the complainant. Ld. Advocate for the complainant rightly argued that Pro-OP no. 3 having considered the gravity of the wound / injury after treatment by OP no. 1 advised for immediate hospitalization.

It is also important to consider that Ld. Adv for the complainant rightly argued that Pro-Op 4 corroborated the case of the complainant. Complainant also pleaded and amended the complaint to the effect that his leg was amputed following the said surgery. So  the gravity of the case has been more serious during the pendency of the case.

In the light  of the discussion made  herein above and after assessing of the  entire evidence of both the parties vis-a- vis the observation made herein above, the commission comes to the finding  that the complainant successfully proved the case against the OP up to the hilt. The fact and circumstance of the case suggest for  holding that the Ops have acted in a manner with the complainant which tantamount  to deficiency in service and it is an act of medical negligence on the part of the OPs. Accordingly, Points no. 3 and 4 are answered in affirmative in favour of the complainant.        

 Consequently the complaint case succeeds on contest against OP no. 1 and 2 and dismissed against Pro- OP no. 3 and 4.

Hence,

                              It is

Ordered

that the complaint case no.CC/105/2016  be and the same is allowed on contest against  OP no. 1 and 2 and dismissed on contest against Pro-OP no. 3 and 4 with cost Rs.10,000/- the complainant do get an award for  a sum of Rs. 2,45,695/- towards cost of medical treatment, Rs. 2,00,000/-towards compensation for medical negligence, mental  pain and agony and Rs. 10,000/- towards ligation cost. The OP no. 1 and 2 are jointly and severely directed to pay Rs. 4,55,695 to the complainant within the 30 days from the date of passing   the final award  failing  which the entire award money shall carry interest @ 8 % per annum from the  date of passing final award till the date of its realisation.

All Interim Applications (I.A) stand disposed of accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.               

Dictated & corrected by me

      ............................................

                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)         ...........................................................

                                                                                                         PRESIDENT

                                                                      (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

                  ............................................................                                                                       

                               MEMBER                                                                                                  

(NIROD  BARAN   ROY  CHOWDHURY)