Date of Filing: 23.06.2014 Date of Final Order: 10.02.2016
The complainant Smt. Sonali Sengupta, has filed the present case U/S 12 of the Consumer Protection Act, 1986 against the O.Ps, Dr. Shamik Chaudhuri, (Orthopedic Surgeon) i.e. the O.P. No.1, Subham Hospital & Diagnostic Centre Pvt. Ltd., Cooch Behar i.e. the O.P. No.2 and the Branch Manager, National Insurance Company Ltd., Cooch Behar Branch i.e. the O.P. No.3 praying for issuing a direction upon the O.Ps to pay the claim amount Rs.3,89,172/- in total (Rs.1,00,000/- for medical negligence, Rs.1,99,172/- for nursing home charges, Chennai and miscellaneous expenditures, Rs.5,000/- for litigation costs and Rs.85,000/- as compensation for mental pain, agony and harassment) to the Complainant and other relief(s) as the Forum may deem feet and proper.
The gist of the complaint as can be gathered from the case record is that on 12/02/2011 the Complainant fell down from rickshaw at Siliguri for which she felt severe pain in her left hand and accordingly she consulted with Dr. A. Basak on same day at Paramount Hospital Pvt. Ltd., Siliguri, who detected to have a fracture shaft humerus (left) with Butterfly Fragment after initially examined the Complainant also advised for surgery for proper reunion of the bone and accordingly the Complainant was admitted to the said nursing home on that day and remained in the said nursing home from 12/02/2011 to 14/02/2011. But because paucity of funds, the Complainant came back at Cooch Behar on 14/02/2011 without surgery.
On 15/02/2011 the Complainant went to the O.P. No.1, Dr. Shamik Chaudhuri with complaint of severe pain in her left arm. After examination, the O.P. No.1 advised her to undergo ORIF (Open Reduction Internal Fixation) and plating for proper reunion of the bone and accordingly, the Complainant got admitted in the O.P. No.2, Subham Hospital & Diagnostic Centre Pvt. Ltd., Cooch Behar on the same day for the said surgery by depositing a package fee of Rs.26,000/- which includes the cost of the surgery, post-operative care also expenditure on medicines. After completion the said surgery, the Complainant was informed by Dr. Shamik Chaudhuri that the operation was successful and she was discharged from the said nursing home on 18/02/2011 with prescription of some medicines for post operational healing.
By taking and using such medicines the Complainant did not get experienced the comfort of complete cure and continued to experience the pain of the surgical site also fever. Therefore, the Complainant reported this aspect to Dr. Chaudhuri on 01/03/2011, 17/03/2011, 07/04/2011, 16/05/2011, 28/06/2011 and 02/09/2011 respectively, who explained that the pain being experienced is nothing abnormal in a post operation phase and that will automatically stop with the passage of time and gave some medicines and tests after doing so her condition did not improve. But the Complainant’s condition began deteriorated gradually and due to tremendous pain in surgical site, she could barely move her left hand after one year from date of the surgery. As a result her condition became very serious. Accordingly, the Complainant visited to Dr. Balbant N.S. Laguri on 16/04/2012. After normal check-up Dr. Laguri advised to the Complainant for X-ray in her left hand and Dr. Laguri found in her X-ray report that “Present radiograph reveal old fracture of mid shaft of left humerus with malunion and remodeling deformity”, for which the Complainant became anxious much and sustained immense mental agony. Then the Complainant further visited to Dr. Chaudhuri on 17/04/2012 & 24/04/2012 respectively for getting relief from her pain and proper reunion of the bone but she was getting written advice by Dr. Chaudhuri that reffered to hire centre for better treatment.
Afterwards, the Complainant himself and her family members finding no other alternative for reviving from the acute pain and proper reunion of the bone in her left hand and she rushed to start for Scudder Memorial Hospital, Ranipet, Vellore on 14.06.2012. On 19/06/2012 the Complainant consulted with Dr. Anbu Suresh and other two doctors in the said hospital. There Dr. Suresh and two other doctors after doing several tests diagnosised that “lt. humerus shaft non-union with implant instu”, for which the Complainant admitted in the said hospital on the same day and the doctors performed “lt. humerus implant exit with Redo-planting with bone grafting on 20/06/2012. After surgery, the Complainant had to incurred a great deal of pain. The Complainant remained in the said hospital from 19/06/2012 to 22/06/2012. On 22/06/2012 the Complainant further admitted in the Christian Medical College, Vellore for checking-up her surgical site under Dr. V.N. Lee and other five doctors checked her and finally discharged from the said hospital on 25/06/2012. Thereafter, the Complainant went to the C.M.C., Vellore at several times for routine check-up of her surgical site and on 10/01/2013 the said hospital issued a report which revealed that “lt. humerus shaft non-union has fully united and also allowed to do all activities”.
From that it is crystal clear that due to lack of ordinary care and skill at the time of ORIF & plating by the O.P. No.1 & 2, the Complainant’s surgical site “lt. humerus shaft non-union with implant instu” and the Complainant would be suffered various disorder or problems in her body in future. The O.P No.1 & 2 did not maintain professional ethics, which is tantamount to medical negligence and deficiency in service. Due to such of medical negligence and deficiency in service on the part of the O.P. No.1 & 2, the Complainant suffer irreparable loss, mental pain and agony and also suffered from huge monitory loss and miscellaneous expenditure at Cooch Behar to Vellore like train fare lodging food etc.
Hence, the Complainant filed the instant case No. DF – 38/2014 with enclosed some original/Xerox copy of documents before this Forum for redress of the dispute and prayed for direction to the O.Ps to pay her claim amount, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, Dr. Shamik Chaudhuri, (Orthopedic Surgeon) has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P. No.1 is that the Complainant sustained injury on her left arm causing fracture of left shaft humerus with Butterfly Fragment on 12/02/2011 but due to negligence on the part of the Complainant, she came to this O.P. No.1 after three days i.e. on 15/02/2011 for treatment as such this O.P No.1 did not get any opportunity to render treatment to the Complainant instantly, immediately after fracture. However, the O.P. No.1 performed the operation on 15/02/2011 at the Subham Hospital & Diagnostic Centre Pvt. Ltd., Cooch Behar i.e. the O.P. No.2 with utmost care and skill to his knowledge. Pre-operative and post-operative measures were also taken by the O.P. No.1 and the Complainant was discharged on 18/02/2011 from the said nursing home with advise to take some medicines, as mentioned in the discharge summery. The Complainant was also asked to come to the O.P. No.1 on 02/03/2011 for review. Due to the nature and position of fracture plate was implanted which was inevitable.
It is the case of the O.P. No.1 that the Complainant after operation came to the O.P. No.1 on 01/03/2011, 13/03/2011, 07/04/2011, 16/05/2011, 28/06/2011 and 02/09/2011 and on each and every occasion this O.P examined the patient and prescribed necessary medicines to her. On 01/03/2011 when the Complainant came to the O.P. No.1 there was no complaining of the patient. As a routine manner, all stitches were removed and wound was found healthy.
The O.P. No.1 further stated in his written version that from the prescription of Dr. B.N.S. Laguri dated 16/04/2012, the O.P. No.1 found that Dr. Laguri noticed loosening of implant and this loosening of implant might happened due to old age and osteoporosis, which is common to aged women and also happened due to lack of proper nutrition.
It is the further case of the O.P. No.1 that the Complainant came to this O.P. No.1 long after on 17/04/2012 and 24/04/2012 and also submitted that non-union of fractured left humerus shaft of the Complainant caused due to old age and osteoporosis and in such a case the remedy is only bone grafting. Having regard to the age and general condition of the patient, she was referred to the higher centre for better treatment after having some tests i.e. T.C, D.C, Hb%, ESR, CRP, Blood Culture etc. It is pertinent to mention that the surgery of bone grafting from the left iliac crest was eventually done at Scudder Memorial Hospital, Christian Medical College, Vellore. So, in every occasion this O.P took much care for his above patient and he had no negligence to treat the patient.
It is the specific case of the O.P. No.1 that in the medical papers issued by Scudder Memorial Hospital as well as C.M.C, Vellore nowhere mentioned regarding the loosening/failure of implant also initial operation done by this O.P was defective or unskilled or careless, besides they have certified that the implant was in situ. The non-union of the fractured bone happened due to the cause beyond the control of this O.P for which this O.P cannot be held liable.
On the other hand the O.P. No.1 covered by professional indemnity policy with the National Insurance Company Ltd. i.e. the O.P. No.3 vide Policy No.153901/46/10/8700000076 valid from 01/06/2010 to 31/05/2011 as such the said Insurance Company is liable to pay and/or indemnity the Complainant, if any order of award is passed against this answering O.P.
By putting all this, the O.P. No.1 stated in his written version that there is no deficiency in service and medical negligence on the part of the O.P. No.1 also the Complainant is not entitled to get any compensation from this O.P. No.1 as alleged by the Complainant and prayed for dismissal of the instant case with cost.
The O.P. No.2, Subham Hospital & Diagnostic Centre Pvt. Ltd., Cooch Behar has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P. No.2 is that according to the advice of the O.P. No.1, the Complainant was admitted in the Subham Hospital & Diagnostic Centre Pvt. Ltd., Cooch Behar on 15/02/2011 under the care of said O.P. No.1 and on the said date the O.P. No.1 performed the operation at the O.P. No.2, nursing home. All the pre and post operative measures were also taken by the O.P. No.1 & 2 and the Complainant was discharged from the O.P. No.2, nursing home on 18/02/2011 with advice to take some medicines as mentioned in the Discharge Summery. Due to the nature and position of fracture plate was implanted which was inevitable.
The O.P. No.2, nursing home further stated in his W/V that during the period of stay at the nursing home, the staffs of the O.P. No.2, nursing home took much care of the Complainant and the nursing home authority and the O.P. No.1 took all pre/post operative measures before and after the said operation. Regarding the allegation made in the complaint of the Complainant against the O.P. No.1 concerning the treatment rendered by the O.P. No.1 to the Complainant, this O.P has nothing to say as the same is the matter of records as such the Complainant is put to the strictest proof of the same.
By putting all these, the O.P. No.2 stated that this O.P had no negligence or deficiency in service towards the patient during her treatment in the nursing home and nothing has been suffered by the Complainant for any act of the O.P. No.2 as stated in the complaint of the Complainant.
Ultimately, the O.P. No.2 prayed for dismissal of the case with cost and the Complainant is not entitled to get any compensation from this O.P. No.2 as stated by the Complainant.
The O.P. No.3, the Branch Manager, National Insurance Company Ltd., Cooch Behar Branch has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P. No.3 is that there was no direct contract of insurance company between the Complainant and the above O.P. He is only adding party only. As per the terms and conditions of policy of professional indemnity of doctors insured or the Complainant cannot impleaded this O.P as a party. The O.P. No.3 also stated that the Complainant did not filed any valid bills and vouchers to this O.P. No.3.
It is the case of the O.P. No.3, insurance company that an insurance policy for professional indemnity of doctors bearing No.153901/46/10/8700000076 for the period from 01/06/2010 to 31/05/2011 was issued from National Insurance Company Ltd., Cooch Behar Branch with a condition that if any negligence is proved against the O.P. No.1, Dr. Shamik Chaudhuri, the insurance company will pay Rs.2,50,000/- in any accident and indemnity limit during the policy period of insurance is one year. The O.P. No.1, Dr. Shamik Chaudhuri as per terms and conditions of professional indemnity policy cannot add/implead this insurance company as one of the O.P. If any medical negligence prove against him and any Ld. Forum/Court/Tribunal direct to pay an amount of compensation to him then he claim agreed amount from his insurer and if insurer denied to pay him agreed amount then he can approach to Ld. Forum, otherwise not. He should first inform the said matter to his insurer after receiving the notice from the Ld. Forum, but he avoid his insurer.
It is the further case of the O.P. No.3, insurance company that the O.P. No.1, Dr. Shamik Chaudhuri did not treated the patient wrongly and/or negligently and there was no willful and gross negligent act and/or unethical conduct or unfair trade practice on the part of the O.P. No.1, Dr. Chaudhuri. The Complainant were treated in various places and neither a first nor a last treating doctor. So, there was no lack of ordinary care and skill.
Ultimately, the O.P. No.3, insurance company prayed for dismissal of the case with compensatory costs.
In the light of the contention of the both parties the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, perused the entire documents in the record also heard both the Ld. Agent at a length. Perused also the Ruling cited by both the Ld. Agents.
Point No.1.
Evidently, the ORIF surgery of the Complainant Sri Sonali Sengupta was done by the O.P. No.1, Dr. Samik Chowdhuri, (Orthopedic Surgeon) at the Nursing Home of O.P. No.2, Subham Hospital & Diagnostic Centre Pvt. Ltd. Cooch Behar on receiving certain payment.
So, relation between the Complainant and the O.P. No. 1 & 2 so established from the record, we can be safely concluded that the Complainant is consumer under the O.Ps, U/S 2(1)(d)(ii) of the C.P. Act, 1986.
The O.P. No. 3 is the Insurance Company added by the O.P. No. 1.
Point No.2.
Chamber of the O.P. No.1, Dr. S. Chowdhuri and the Nursing Home of the O.P. No.2, Subham Hospital & Diagnostic Centre Pvt. Ltd. Cooch Behar are situated within the jurisdiction of this Forum and total valuation of the case is Rs. 3,89,172/- which is far below than maximum limit of Rs.20,00,000/-.
So, this Forum has territorial and pecuniary jurisdiction to try this case.
Point No.3 & 4.
In the present case in hand, the Complainant in her complaint petition as well as in her Evidence clearly stated that she fell down from rickshaw at Siliguri and felt severe pain in her left hand and accordingly consulted with Dr. A. Basak, D (Ortho), MS (Ortho) at Paramount Hospital Pvt. Ltd.,Siliguri who examined the Complainant and advised for Surgery for proper reunion of bone as it was a case of fracture shaft humerus with Butterfly Fragment and admitted there on and from 12.02.2012 to 14.02 2011 without surgery due to her financial crisis. Thereafter the Complainant returned at Cooch Behar and contacted with Dr. S. Chaudhuri, the O.P. No. 1 who also advised her to undergo ORIF (Open Reduction Internal Fixation) and plating for reunion of the bone and admitted Subham Hospital & Diagnostic Centre Pvt. Ltd. Cooch Behar on 15.02.2011. On the same day, surgery was done by O.P. No. 1 and discharged there on 18.02.2011 with prescribed some medicine. By not felling comfort the Complainant reported he matter to the O.P. No. 1 who again treated her with some medicines in post operative stage on several dates but no good result came out. The condition of the Complainant became deteriorated and consulted with other surgeon, Dr. B. N. S. laguri who advised for X-ray that revealed malunion and remodeling deformity in the port of operation. Thereafter the Complainant again went to the O.P. No. 1 who referred her to higher centre 14.05.2012 for better treatment. Ultimately, the Complainant went to Vellore and the doctors performed surgery with bone grafting on 20.06.2012 accordingly the Complainant cured.
The moot point of the Complaint is that, the O.P. No. 1 performed operation of the Complainant without taking proper care in preoperative period for which complication arises and also the O.P. doctor delayed to refer the patient to higher centre, only for that reason; the Complainant had to face complication also underwent further operation by spending huge money and time.
It is the case of the O.P. No. 1 that he performed operation with due care also pre and post operative care had been taken by this O.P. as and when the Complainant needed but malunion of bone happened as it was inevitable as because the Complainant is an old aged person. The ld. Agent for the Opposite Parties vehemently argued that considering the age of the patient this O.P referred the patient to the higher centre for bone grafting as it was only remedy in case of old age and osteoporosis patient.
Annexure “C” “C1” reveals that the O.P. No. 1 performed operation on 15.02.2011. Annexure “D” the Discharge Summary reveals that the Complainant discharged on 18.02.2015 after operation with prescribed some medicines.
Annexure “B” depicts that the Complainant paid Rs. 26,000/- for undergoing ORIF surgery.
Prescription dated 07.04.11, 16.05.11, 16.05.2011, 28.06.2011 and 02.09.11 show that the Complainant went to the O.P. No. 1 with pain, swelling in left upper limb with shoulder stiffness though in the prescription dated 01.03.11 doctor noted that the wound healthy after removing all the stitches. Thus, it is crystal clear from the record that after operation the Complainant did not cure. After a prolong treatment from 1.03.2011 to 02.09.2011 the Complainant did not cure. In that period no X-ray was taken to be confirmed whether the fracture point was united or not though it is must in all cases of operation for fixation plate in fractured bone. Thus, post operative close observation/ measure was completely absent, the doctor only prescribed some medicines with an assurance that she will fell comfort shortly.
Annexure “D1” the X-Ray report, dated 14.05.2012 referred by Dr. B.N.S Laguri reveals malunion and remodeling deformity in the old fracture of mid shaft of left humerus. Ultimately, the O.P. No. 1 referred the patient to higher centre for better treatment.
In this juncture, it is pertinent to mention that the O.P. No. 1 performed the operation of the Complainant on 15.02.2011. The Complainant did not feel comfort even after elapsing so many months but the Doctor gave her false assurance and in this way, many days also elapsed. Annexure “D1”, the X-ray plate clearly shows that the screw and the plate are not closely united with finding “Present radiograph reveal old fracture of mid shaft of left humerus with malunion and remodeling deformity.” The Complainant again contacted with the O.P. No. 1 with the X-Ray plate on 17.04.12 and then he prescribed some medicine even after noticing the worse condition of the operation site. Only that day he advice for an X-Ray and lastly finding no other alternative the O.P. doctor referred the patient to higher centre on 14.05.2012.
On proper study the Discharge Summary of Scudder Memorial Hospital dated 22.06.2012, the Annexure “F” reveals that the diagnosis was Lt. Humerus Shaft Non-Union with implant insitu and the Complainant admitted there with history of pain after operation in Lt upper limb for routine activities. On examination Tenderness+, Abnormal mobility+, AFM+ Distal Pulses Felt appeared in Lt. Arm. The Doctors of S M Hospital operation done: Lt. Humerus implant Exit with Redo Plating with bone Grafting. In Operative notes, it has been clearly stated “Under Axillary block/SA, through previous incision # site identified, implant loose. No C/o failure. Implant exit done. Non-union excised. Fixed with 9 holded pitkar plates. 4 screw in each fragment with bone graft from Lt. iliac crest. Wound washed and closed with suction drain insitu. At the time of discharge the condition of the patient was good.
In the said Discharge Summary in the past History it was noted K/C/OHT on regular treatment. Not K/C/ODM/1 HD/PT also on examination Tenderness, Abnormal Mobility, AFM + appeared. But in the Discharge Summary dated 18.02.2011, we do not find any operative note of the concerned Doctor.
If we also give a close look to the Discharge Summary of Christian Medical College, Vellore dated 25.06.12, it appears that in history it has been noted the post operative period was uneventful but she continues to have pain in the left arm and difficulty in moving her left shoulder. She finds it difficult to do her daily chores. She is not a diabetic. Next surgery done on 20.06.12 and it appears that she underwent implant exit left humerus with Re-do ORIF and Iliac Crest Bone Grafing under General Anesthesia wherein 9 holded large fragment narrow DCD, with 4 bicortical screws used in each fragment. She was discharged with advice regular physiotherapy as taught while in the Ward. Also the report dated 10.01.13 reveals that Lt. Humerus shaft non-union has fully united and the patient was allowed to do all activities.
Though in Discharge Summary dated 18.02.11 no operative note appears also no advice for X-ray or Physiotherapy though Complainant was visited by the OP No.1 with complain of pain. Also treatment sheets of Subham Hospital we do not find any advice of Dr. for physiotherapy as and when the patient was in admission there in post operative period. Also, no where the Doctor has noted that the patient has got his motion in his right hand during the long span treatment under O.P. No. 1 from 15.02.11 to 02.09.11.
In this juncture, it is pertinent to mention that the opposite party without doing any x-ray at post operative stage kept the patient in darkness about the post-operative condition of the patient. The OP No.1 also treated the patient in post-operative stage where post-operative close observation was fully absent and as and when he took the x-ray report performed on advice of Dr. B.N.S. Laguri. He referred the patient higher centre. So, it can clearly be held that the OP No.1 did not refer the patient in due time that attributed negligence on the part of the OP No.1.
In this juncture, reliance has been placed upon one ruling cited by the Ld. Agent for the Complainant reported in 2014 (2) CPR 412 (NC) where National Commission pleased to hold that “Delay in referring patient for better treatment amounts to medical negligence.”
Thus, considering the above facts and materials we are convinced to hold that the O.P doctor did not exercise the reasonable competence in this case, the skill which he possesses and did not advice for post operative X-Ray to know the condition of her operation site. That very negligent manner of activities and casual approach of a Doctor is not fair to a medical practitioner as the medical service is a noble profession.
In written argument also in w/v the OP No.1 stated that non-union of fractured left humerus shaft of the complainant caused due to old age and osteoporosis and in such a case the remedy is only a bone grafting for which the patient was referred to Higher Centre. In this contest the Ld. Agent for O.P. 1 referred a book Fractures in Adults by Rockwood and Green.
During the course of argument, filing the said literature, the Ld. Agent of OP No.1 has taken plea that malunion is not the deficiency and he rightly referred the patient for better treatment i.e. bone grafting.
The literature Operative Orthopedics by S. Terry Canale & James H. Beaty-part XV Fractures and Dislocations in Adults referred by the ld. Agent of O.P.No.1 it is pointed out that “non-unions occur in approximately 10% of patients with humeral shaft fractures regardless of the type of treatment used because motion can be difficult to control. Non-union is more common in the mid and proximal diaphysis especially with a spiral or oblique fracture pattern...............if the fracture site is opened, adding bone graft from the iliac crest is highly recommended Morselized allograft has been found to perform just as well as iliac crest bone graft in achieving healing of midshaft humeral non-unions treated with intramedullary nailing and interfragmantary wire placement.”
We also quoted from literature the chapter Fractures and Dislocation in Adults as under. “Although the exact causes of delayed union and non-union are unknown, systemic and local factors are thought to contribute to their development. Systemic factors include the patient’s metabolic and nutritional status, general health, and activity level.” Except the literature the O.P. NO.1 did not file any Ruling in support of his contention. It also appears that there is no whispering of O.P. doctor in the treatment particulars of the patient about the post operative complication of ORIF also that has not been disclosed to the patient/patient party.
As per procedure of open Reduction and Internal Fixation Surgery (ORIF) Pre-Operative procedure did not maintain by the OP Doctor as stated by the Complainant in her evidence also by filing the literature. In addition, we do not find any report of X-ray, CT Scan or MRI Scan to evaluate the broken bone and surrounding structures for performing the said operation (ORIF).
In this juncture, reliance has been placed on a Ruling reported in 2012 (2) CPR 52 (NC) filed by the Ld. Agent of the Complainant wherein it is held that non-conducting of pre-operative test which are necessary to decide fitness of patient for undergoing major surgery is a glaring act of deficiency in service.
The Ld. Agent for the Complainant also submitted ruling reported in 2015 (3) CPR 490 (NC) and 2015 (2) CPR 242 (NC) where Hon’ble National Commission pleased to hold that principle of Res Ipsa Loquitor is applicable in a case of medical negligence.
O.P in his w/v states that he had not within the knowledge of X-ray report Dr. Laguri’s prescription noted that “Loosening of Implant”.
In this juncture, the Ld. Agent for the OP vehemently argued that loosening of implant might happen due to old age and Osteoporosis, which is common to aged women. This loosening of implant might also happen due to lack of proper Nutrition for which the OP No.1 has not deficiency.
In this premises, we attract the authority reported in 2012 (2) CCC 284 (NC), where Hon’ble National Commission pleased to hold that in case of medical negligence, a mere preponderance of probability would indict the guilty of profession. Inference as to negligence may be drawn from proved circumstances by applying the rule of Res Ipsa Loquitor. In the case in hand the X-Ray plate is the documentary evidence to prove the negligence of treating doctor.
In view of the above findings and rulings discussed above, we find that it is the latest view of Hon’ble Appex Court of Hon’ble National Commission that where a case of medical negligence, the principle of Res Ipsa Loquitor operates, the Complainant does not have to prove anything as think (s) proves itself.
In the light of foregoing discussion we are in considered opinion that this is a case where principles of Res Ipsa Loquitor will apply and in support we placed reliance upon the decision of the Hon,ble Supreme Court in Savita Garg Vs. National Heart Institute, (2004) 8 SCC 56, where the Hon,ble Apex court pleased to hold that burden is on the hospital or doctors concerned who treated the patient, in defence to substantiate their allegation that there was no negligence. In the present case the O.P. No.1 did not file any cogent documents to substantiate his contention.
Thus, considering the overall matter on record including procedure and management of treatment as adopted by a skilled Doctor i.e. OP No.1 even after post operative stage, we are convinced to hold that the OP No.1 did not apply his standard of skill and for which deficiency and negligent manner of service is well proved and for his negligent manner of treatment for about 7 months after operation of fracture of Lt. arm of the Complainant she suffered huge pain discomfort and pecuniary loss.
The Ld. Agent for OP No.2 vehemently argued that the Complainant has no allegation against OP No.2. The fact remains that the Complainant was under treatment of Dr. OP No.1 privately and operation done at Subham Hospital but Complainant made no allegation of infrastructural facility or lack of care of nurses/nursing Home Staff. No negligence/deficiency of OP No.2 is proved in this case.
Complainant also has no allegation against O.P No.3. But O.P No.3 argued by placing some Rulings and literature that OP No.1 has no medical negligence.
During the course of argument Ld. Agent/Adv. of the O.P. No.3 submitted a ruling reported in 2014 CJ 129 (NC), where Hon’ble National Commission pleased to hold that negligence cannot be attributed to a doctor so long as he performs his duty with reasonable skill and competence.
He cited another ruling reported in 2014 CJ 959 (NC), where in a case of medical negligence complications arosed due to angiography. Hon’ble National Commission pleased to hold that here completion of angiography does not rule out aorta dissection but having sub-actue aorta dissection and this is the reason that the Complainant was subjected to clinical management and her condition became stable without any surgical interference and ultimately, pleased to hold that the Complainant has failed to prove his case.
But we have already come to the conclusion that negligence of the O.P. No.1 is already proved, so these rulings are not applicable in this case.
During argument of Ld. Agent/Adv. of the O.P. No.3 further submitted the accident in question was happened on 12/02/2011 but the present case was filed on 23/06/2014. So, the present case has not been filed within 2 years from the date of when cause of action arose though the Complainant has made an attempt to renew the date of cause of action by visiting the O.P. No.1 time and again.
In support of his contention he cited a ruling reported in 2013 CJ 426 (NC), where Hon’ble National Commission pleased to hold that condonation of delay cannot be a matter of routine.
But we find that in the present case, the Complainant had been suffering from continuous pain and did not improve. She attended the O.P. No.1 on 01/03/2011, 17/03/2011, 07/04/2011, 16/05/2011, 28/06/2011, 02/09/2011, 17/04/2011 24/11/2011, 17/04/2012 and 24/04/2012 and on 14/05/2012 she was referred for better treatment as her condition was deterioration.
So, it can be safely said that visiting of the O.P. No.1, Dr. Chaudhury by the Complainant was not at all fancy and the ruling cited above by the Ld. Agent/Adv. of the O.P. No.3 is not applicable in this case.
We find that the O.P. No. 1 is covered by professional indemnity policy with the National Insurance Co. Ltd. vide policy No.153901/46/10/3700000076 valid from 01.06.2010 to 31.05.2011 as such the O.P. No.3 is liable to indemnify the Complainant, if any adverse order passed against the O.P. No.1 but payment of money by the O.P. No.3 according to the policy is a matter between the O.P. No.1 and the O.P. No.3.
Considering over all matter into consideration and materials on record, we are constrained to hold that the OP No.1 is liable for medical negligence and deficiency in service and is liable to compensate the Complainant.
Regarding the claim of medical bills, the Complainant files bill of Rs. 1,39,810/- paid to Subham Hospital and Vellore with cost of medicines. As the deficiency and negligent manner of service of the O.P. No. 1 is already established, the Complainant is deserved to allow relief and compensation.
All the questions are answered in favour of the Complainant.
As a result, the complaint succeeds.
ORDER
Hence, it is ordered that,
The present Case No. DF/38/2014 be and the same is allowed on contest with costs of Rs.10,000/- against the O.P. No. 1 and dismissed on contest against rest O.Ps without any costs.
The O.P. No.1 is hereby directed to pay the Complainant Rs. 50,000/- as compensation for his deficiency in service which caused mental agony and harassment of the Complainant. The O.P. No.1 is further directed to pay the Complainant Rs. 1,39,810/- as medical expenditure. The entire order shall comply by the O.P. No. 1 within 45 days failure of which the O.P. No. 1 shall pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let plain copy of this Final Order be made available and be supplied free of cost, to the concerned party.
Dictated and corrected by me.
Member President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
