Hon’ble Mr. Subhas Ch. Guin, Member.
The alleged medical negligence on the part of the O.Ps has dragged the Complainant before this Commission for redressal of her grivances. The complaint petition in a nut shell is that Smt. Chhaya Das wife of Sri Nikhil Chandra Das of Chhat Guriahat Netaji Nagar P.S. Newtown, Dist. Cooch Behar had fallen in the Varandah of her house on 24-05-16 and sustained injury on her left hand for which she was taken to the chamber of Dr. Shamik Chaudhuri Orthopeadic surgeon, B.S. Road, P.O & Dist. Cooch Behar (O.P-1) with sever pain in her left hand. On examination clinically, the O.P-1 diagnosed her with “Comminnted Fracture Proximal Humerous”and advised her to undergo open Reduction Internal Fixation (in short ORIF) and Proximal Humerus Internal Locking System (in short PHILOS), surgery for easy mobilization which required proper union of the both bone. The Complainant got admitted in Subham Hospital and Diagnostic Centre Pvt. Limited, N. N. Road, P.O. & Dist. Cooch Behar (O.P-2) for the said surgery on 27.05.16. That ORIF and PHILOS surgery was performed on 29-05-16 for proper union of the bones and easy mobilization by the O.P-1 on 29-05-16 and the Complainant's family was informed that the operation was successful. The Complainant was discharged from the O.P-2 hospital on 01.06.16 with payment a package fee Rs. 48,914/- which included the cost of surgery, pre-operative care post operative care, cost of medicine and plate used for surgery. The O.P-1 prescribed some medicine for post operative healing. Despite taking those medicines, the Complainant did not experience the comfort of complete cure but she experienced pain in the surgical site which was reported to the O.P-1 on 12-06-16, 18-06-16 and 30-06-16. The O.P -1 assured the Complainant that the pain in the surgical site was not abnormal which would automatically stop with lapse of time and he also prescribed some tests and medicine also. But her condition did not improve in spite of getting those texts done and taking those medicine. On the Contrary her Condition began to deteriorate gradually and there was tremendous pain in surgical site causing her condition serious. Thereafter, the Complainant further visited the chamber of the O.P-1, for getting relief from pain who advised her for reference to higher centre for better treatment with Dr. M.K. Mondal, FRCS in Kolkata. Then, the Complainant along with her family member went to Kolkata to pay a visit to Dr. Mondal but he was not available at that time. Ultimately, the Complainant saw Dr. Dipak Roy Chowdhuri, MBBS, D. Ortho, M.S (ortho) at Kothari Medical Centre, Kolkata on 28-07-16. Who advised her several tests (NCV & EMG) which she had to undergo and diagnosed her with "Severe axonal type of left radial sensorimotor neuropathy, with partial axonopathy of left upper Brachial plexus” after looking over those test reports. Again on 10-08-16, the Complainant consulted Dr. Malay Kr Mondal, D. ortho, M.S (Orthe). MRCSEd (UK) in Belle Clinic in Kolkata who made her undergo sever test and diagnosed here with old fracture (? united) is seen in neck left humerus - internal splints are present. Thereafter, the Complainant got admitted on 14-01-17 in KPC Medical College & Hospital, Jadavpur under Dr. Malay Kr. Mandal who performed surgery of the Complainant on 16-01-17 and was discharged from the hospital on 21-01-17 but after surgery also she could not move her left hand. Later she went to Christian Medical College, Vellore on 06-04-17 and Consulted Dr. Binn P. Thomas, MS (ortho). Professor and head of the Orthopaedic dept. who diagnosed her with "Post Traumatic Fracture Humerus, Radial Nerve Injury left Upper Limb" after getting some tests done. Thus, the O.P-1, Dr. Shamik Chowdhuri was extremely negligent starting from clinical diagnosis on admission, from admission to operation and post operative period during the patient's treatment and he also failed to follow the standards of medical and surgical care. He also failed to use reasonable degree of skill, care, knowledge and prudent while treating the patient. The O.P-1 had not given proper advice and treatment which amounted to blatant medical negligence and deficiency in service. Therefore, by such medical negligence and deficiency in service on the part of the OP-1 &O.P-2, the Complainant suffered irreparable loss, mental pain, agony and also suffered huge monetary loss for which she was compelled to file this case.
The Cause of action of the present case arose first On 29-05-16 when the ORIF & PHILOS surgery was performed by the O.P-1 for easy mobilization as well as proper union of the bones and Continued till 06-04-17 when the Complainant saw Dr. Thomes at CMC, Vellore when the test report revealed that Post Traumatic Fracture Humerus, Radial Nerve Injury Left Upper limb existed.
So, the Complainant prayed for a direction to the O.Ps to pay a sum of Rs. 4,00,000/- for medical negligence and deficiency in service, a sum of Rs. 1,03,202/- for miscellaneous expenditure from Cooch Behar to Kolkata and Cooch Behar to Vellore i.e train fare, food and lodging & taxi fare. She also prayed for a direction to the O.Ps to pay a sum of Rs. 10,000/- towards cost of proceeding and Rs. 3,00,000/- for mental pain, agony and harassment and any other relief or reliefs which may deem fit by the Hon’ble Commission.
Summon were served upon the O.Ps. O.Ps contested the case by W.V, evidence on affidavit and written argument. The O.P-1 in his defence plea stated that the complaint petition was bad for mis-joinder and non- joinder of parties. That other doctors and diagnostic centers where the Complainant was treated and tests were performed should have been parties to this suit and without impleading them the case could not proceed. The Ld. Advocate for the O.P-1 asserted that the O.P-1, Dr. Shamik Chowdhuri was an Orthopaedic Surgeon having D. ortho and MS (ortho) degree in his credential and had vast experience in this field. That one patient named Smit. Chhaya Das aged about 56 years came to the chamber of the O.P-1 on 24-05-16 who was suffering from Comminuted Fracture Proximal Humerus (left side) due to falling down in her Verandah. The O.P-1, on thorough clinical examination advised her for x-ray test of the affected body part and some histopathological tests and also advised her for an early hospitalization for a surgical procedure for rectification of the fracture and also prescribed some medicine. The Complainant got admitted in the O.P-2 hospital after a considerable delay on 27-05-16. The O.P-1 performed the ORIF and PHILOS procedure on 29-05-16 after conducting various tests considering the critical Condition and age of the Complainant. The said procedure was performed by the O.P-1 for reunion of the fracture portion and for restoration of movement with lapse of time and also following medical norms and prescribed procedure in medical science. The said procedure was uneventful and the Complainant had an uneventful recovery and she was discharged on 01-06-16 in a stable condition. The OP-1 also advised her some medicine as was needed at that point of time for speedy recovery and charged his professional fees just Rs 27000/- only not a package money at a total cost Rs 48914 as Alleged in Complaint petition. Thereafter, the Complainant visited the chamber the OP-1 on 12-06-16 and 18-06-16 when she was advised required medication to take but at that point of time she did not report any adverse complaint to the O.P-1. Once again she visited the chamber of O.P-1 on 30-06-16 with some completely new problem which was quite different from that was being treated by the O.P-1. The O.P-1 explained the problem to the Complainant that the infrastructure was not available at Cooch Behar to diagnose her new problem for which he referred the name of Dr. Malay Kr. Mondal, in Kolkata. Since then the Complainant never visited the chamber of the O.P-1 nor did she report further for any problem of the above said surgery done by the O.P -1. The O.P-1 also asserted that the fracture was properly healed with uneventful treatment, skill, care and medical expertise of the O.P-1. In fact there was no cause of action to file this case as there was no medical negligence on the part of the OP-1in the treatment of the Complainant. The O.P-1 had taken every pre-operative and post operative medical care on the Complainant as such all the allegation brought against the O.P-1 was baseless and imaginary. So, the Complaint case is liable to be dismissed with cost and the Complainant is not entitled to get any relief whatsoever. The O.P-2 in his defence plea stated that the complaint petition was bad for mis-joinder and non- joinder of parties. That other doctors and diagnostic centers where the Complainant was treated and tests were performed should have been parties to this suit and without impleading them the case could not proceed. That the O.P-2 is a multi specialty Hospital situated at N. N. Road (Near Circuit House) at Cooch Behar town. That whatever allegation brought against the OP-2 in respect of treatment of the Complainant during her hospital stay was out and out false. That one patient named Smt. Chhaya Das aged about 56 years came to the chamber of the O.P-1 on 24-05-16 who was suffering from Comminuted Fracture Proximal Humerus (left side) due to falling down in her Verandah. The O.P-1, on thorough clinical examination advised her for x-ray test of the affected body part and some histopathological tests and also advised her for an early hospitalization for a surgical procedure for rectification of the fracture and also prescribed some medicine. The Complainant got admitted in the O.P-2 hospital after a considerable delay on 27-05-16. The O.P-1 performed the ORIF and PHILOS procedure on 29-05-16 after conducting various tests considering the critical Condition and age of the Complainant. The said procedure was performed by the O.P-1 for reunion of the fracture portion and for restoration of movement with lapse of time and also following medical norms and prescribed procedure in medical science. The said procedure was uneventful and the Complainant had an uneventful recovery and she was discharged on 01-06-16 in a stable condition. That the O.P-2 charged Rs 7944/- only including bed charge for 5 days, OT charges, OT assistant charge, ECG and CARM for such procedure which was alleged to be charged Rs 48914/- by the Complainant. The Complainant was parted with all related treatment papers as well as bills simultaneously with discharge. The O.P-2 was not aware of further treatment nor did the Complainant visit the OP-2 hospital after discharge. That there was no negligence either on the part of the concerned doctor or on the part of the O.P-2 hospital in connection with the patient in question. The entire allegation as brought against the O.P-2 had no basis. It was not correct that the OP-2 had not taken any preoperative and post operative care on the Complainant. There was no deficiency in service in treating the patient nor there was any lack of ordinary care and skill on the part of the O.P-2 as alleged by the Complainant. Thus, the Complainant with false allegation projected the case and claimed huge compensation for illegal bargain. Therefore, the Complainant's case is liable to be dismissed with cost as such she is not entitled to get any relief whatsoever.
Perused the pleading, evidence on affidavit, written arguments and documents filed by both parties. Heard the arguments advanced by both parties at length. After doing so the Commission comes to a conclusion that the following points are required to be determined for adjudicating the case.
Points for determination
- Whether there was medical negligence/deficiency in service on the part of the OPs?
- Whether the Complainant is entitled to get any relief as prayed for in the Complaint petition?
Decision with reason
Point Nos.1 & 2.
Both points are taken up together for discussion as they are interlinked with each other and for brevity. The Complainant, Smt Chhaya Das was seen by the O.P-1, Dr. Shamik chowdhury ON 24-05-16 (Anex-A) when she was diagnosed with Comminuted Fracture Proximal Humerus (left). She got admitted in the OP-2 hospital on 27-05-16 and was discharged on 01-06-16 after a surgical procedure named ORIF & PHILOS on 29-05-16 by the O.P-1 (Anex-B). Again on 12-06-16 she visited the chamber of the O.P-1 (Anex-C) when there was no problem in her surgical site. Thereafter she visited the chamber of the OP-1 on 18-06-16 (Anex-C1) when she was advised to undergo x-ray of left shoulder-AP, Neucobal, BMD rise and cal D3 by the O.P-1. On 30.06.16 she came to the chamber of the O.P-1 with pain in her left hand which was completely in different place of the body than the surgical site for which she was being treated by the O.p-1 (Anex-C2). The O.P-1 explained the new problem to the Complainant that no such infrastructure was available at Coochbehar at that point of time to diagnose her problem. So, the OP-1 refered the name of Dr. M.K. Mondal in Kolkata on request made by the Complainant and her family members. The Complainant saw Dr. Dipak Roy Chowdhury, Orthopaedic surgeon in Kolkata on 28-07-16 when Dr. M.K. Mondal was not vailable on the date. (Anex-D) who made her undergo NCV & EMG test. The impression of the said NCV and EMG texts was " Severe Axonal type of left radial Sensorimeter neuropathy, with partial axonopathy of left upper brachial plexus". (Anex-D₁). Again Dr. D. Roy Chowdhury was seen by the Complainant on 01-08-16 (Anex-D2) where he diagnosed her with “severe Axonal type of left- Radial sensorimotor Neuropathy" which is a condition that causes a decreased ability to move and feel sensation because of radial nerve damage. There was no mention of any complaint about the surgery done by the OP-1. Again on 10-08-16 she visited the chamber of Dr. M.K. Mondal at Belle Vue clinic, Kolkata (Anex-E) where Dr. Mondal diagnosed her with" severe Axonal type of Lift radial sensorimeter, with partial axonopathy of upper brachial plexus. He also advised her X-ray test of old fracture and prescribed some medicine and to review after one month. So as per advice, on 16-09-16 the Complainant saw Dr. M.K. Mondal again at KPC Medical College and Hospital, Jadavpur, Kolkata-32 where his clinical finding were Comminuted Proximal Humerus # (L)- ORIF & plating done on 29.05.16 wrist drop scan humerus- NCV- Severe axonal radial sensorimotor neuropathy & partial axonopathy of (L) upper brachial plexus-X-ray united. Therefore, Dr. Mondal in his clinical finding mentioned about the fracture which was united at that point of time. His findings were related to neuro problem for which he referred her to Dr. Subrata Roy, at pain clinic of the hospital (Anex-E2). In pain clinic his findings were also" Radial and brachial plexus neuropathy” post ORIF follow up case, orthepaedic opinion taken on 20.09.16. He also prescribed some medicine and advised for physiotherapy and review.
Again after lapse of 8 months, the Complainant got admitted in KPC Medical college and Hospital, Jadavpur on 14.01.17 under Dr. M.K. Mondal for removal of plate and screw where in doctor's final diagnosis was left radial neuropathy with partial axonopathy" (Anex -F). The Complainant was discharged from the hospital on 21-01-17 after the procedure of removal of plate and one screw which was uneventful. The x-ray report of Left humerus with shoulder (AP & Lateral) done on 14-01-17 advised by Dr. M.K Mondal reveals that generalized osteopenia is present, old healed fracture in surgical neck of humerus is noted and shoulder joint appear normal. Thereafter, the Complainant saw Dr. Sreekanth. R in hand surgery OPD of CMC, vellore with complaints of inability to dorsiflex the wrist, fingers and thumb for last 10 months where she was diagnosed with "Post traumatic fracture humerus, Radial Nerve injury left upper limb". She had undergone an USG test of left radial nerve wherein impression was given as - "Radial nerve enmeshed within scar tissue with thickened and hypoechoic segment proximal to the scar as mentioned above.
Assessment of the continuity of nerve fibre in the scar is not feasible due to technical reasons.
Normal course of the distal radial nerve beyond the scar region. The impression of EMG report of CMC, vellore, "Study suggestive of left radial Nerve Palsy with active denervation”
The Ld. Advocate for the OP-1, referred a case law in support of his defence, Dr.(Mrs) Chanda Rani Akhouri & others (Appellants) Vs Dr. M.A. TP Methusethupathi & others of Hon’ble Supreme Court of India (20-04-22) wherein the Apex court observed that at the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. The Hon’ble court further observed that the term "negligence" has no defined boundaries and if any medical negligence is there whether it is pre or post operative medical care or in follow up care, at any point of time by the treating doctors or anyone else, it is always open to be considered by the courts/commission taking note of the treating doctors exposition of law laid down by this court of which a detailed reference has been made and each case has to be examined on its own merits in accordance with law. As no evidence came on record at the behest of the appellants, in any manner, which could demonstrate that it was a case of post operative medical negligence or follow up care on the part of treating doctors, the appeal was dismissed.
In the subject care, the Complainant saw many doctors after her surgery by the OP-1 doctor. All doctors were orthopaedic surgeon including one in hand surgery OPD at CMC, Vellore. Every doctor diagnosed the Complainant with "severe axonal sensorimotor nueropathy and partial axonopathy of (L) upper brachial plexus" which was a neurological disorder that was detected by the NCV & EMG tests. The OP-1 doctor performed ORIF & PHILOS surgery for union of fractured bones which were later detected united during removal of screw and plate used for the above said surgery and there was no chance to damage the radial nerve during the said surgery which was away from the fractured site. So far as present case is concerned, the Commission finds that the OP-1 doctor is academically sound and has his expertise in the field of orthopaedic surgery due to vast experience in the field. So, his conduct and performance in treating the Complainant cannot fall below that of the standards of a reasonably competent practitioner in his field which is evident from the facts that no Orthopaedic treating surgeon of the Complainant made any complaint of such neurological disorder caused due to ORIF and PHILOS surgery performed by the OP-1 doctor nor did they make any adverse comment on the surgery done by the O.P-1. On the other hand, the Complainant did not produce any prescription of neuro surgeon by which the Commission can come to a conclusion whether the said problem of the Complainant arose due to the fault of the O.P.1. As such the Complainant could not adduce any evidence to prove that the OP-1 doctor was liable for the said neuro problem.
There was no specific allegation against the O.P-2. At the same time, the Complainant did not adduce any evidence in support of her claim of medical negligence and deficiency in service against the OP-2 Therefore, the Commission is of the opinion that there was no medical negligence and deficiency in service on part of OP-1 & O.P-2. So, there is no question of relief to be paid to the Complainant.
Therefore, the point-1 & 2 are answered in negative. In the result, the Instant case fails on contest.
Hence, it is
Ordered
That the case No. CC/52/2017 be and the same is dismissed without cost.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
