This case has arisen out of application U/s 12 of the Consumer Protection Act, 1986.
The case of the petitioner is that on 05.09.2017 Ummahani Khatun/Complainant No:1 met with an accident at her house by fall on staircase and sustained fracture injury on her right hand & she was taken at the chamber of the Dr. D. Bose (Ortho) and on X-ray found that Radius and Ulna at right hand were fractured and he advice for operation. O.P.No:1 after examining her X-ray plate and report advised to admit her at Sudha Nursing Home on 05.09.2017 and next day on 06.09.2017 O.P.No:1 advised for medical test and thereafter operated her & told her husband that operation is successful.
That on the next day she felt pain at her right hand and high fever but O.P.No:1 without disclosing reasons gave some medicine but of no effect and ultimately on 07.09.2017 O.P.No:1 further took her at OT room after some blood test but Doctor stated nothing to her husband. On 08.09.2017 O.P.No:1 again took her at OT room and three unit blood were given to her & that her condition gradually deteriorated. O.P.No:1 began dressing thrice a day and he was told by doctor and nursing staff that everything is OK. He created pressure upon the doctor who compelled to give permission to remain at the time of dressing and found only one bone is there but they failed to give any rational answer. On 17.09.2017 O.P.No:1 released her from Nursing home and her husband took her to their house & as per doctor’s advice used to take her at Nursing home at 2/3 days interval by a car but no improvement is found. O.P.No:1 treated her up to 13.12.2017.
That complainant No:2 took her to doctor Salam Ali of Purnia on 14.12.2017 who advised X-ray and on examination of report said doctor opined that the operation was totally unsuccessful and further operation is required so she was admitted in the Nursing Home under Dr. Salam Ali who removes the survo of the plate & also advised for plastic surgery and he invited one Plastic Surgeon who on examination told that plastic surgery is not possible as open part of the bone already damaged & that damaged part of the bone should be removed and that operation can be done after recovery from infection.
That on advise of Dr. Salam Ali Complainant No:2 took her wife at Apollo Hospital, Chennai and consulted with Dr. Arun Kannan and she underwent an operation on 03.01.2018 with a surgery of :implant removal right Radius with debridement and excision of a vascular Radius and antibiotic cement implantation right Radius and A/E slab Application.” The doctor of Apollo diagnosed that “A/E Orit right and Ulna with infected implant right Radius with exposed a vascular right radius with discharged” and disclosed that there to late non union of Radius. Again on 03.02.2018 she was operated at her right hand for grafting and plastic surgery, for which he and other family members had to stay at Chennai for about one month.
That O.P.No:1 most negligently and without taking any due care operated that right hand of Complainant No:1 and neither O.P.No:1 nor nursing staff of O.P.No:2 disclosed the position of the patient but the real fact there was total failure of the operation which caused suffering to them. That Rs.6,00,000/- for treatment, Rs.51,000/- for traveling charges, Rs.32,000/- for hotel charges and Rs.50,000/- for other expenses total Rs.7,33,000/- was spent.
That due to financial problem he failed to continue the treatment of complainant No:1 at Apollo hospital, Chennai and compelled to go at Paramount Hospital, Siliguri where Dr. Uday Sarkar treated her but no fruitful result comes out and thereafter he compelled to go to Kolkata Medical College for her treatment where her treatment is going on.
That the wrong treatment and operation done by O.P.No:1 comes within purview of deficiency in service so he is liable to pay all expenses Rs.7,33,000/- , compensation Rs.7,00,000/- and litigation cost of Rs.25,000/- incurred by him as well as compensation for harassment and litigation cost.
O.P.No:1&2 contested the case by filing W.V admitting that on 05.09.2017 complainant No:1 met with an accident at her house by falling upon staircase and sustained fracture injury on her right hand and complainant No:2 took her at the chamber of Dr. Subodh Biswas/O.P.No:1 who on examination of the patient and the X-ray plate advised complainant No:2 to admit his wife at Sudha Nursing Home and she was admitted to Sudha Nursing Home on 05.09.2017 and O.P.No:1 prescribed some medicines and medical testes of the patient and on the next day i.e on 06.09.2017 O.P.No:1 operated her and the procedure of operation is ORIF i.e Open Reduction and Internal Fixation which was stated to the patient party that the operation is successful and that on the next day the patient had severe pain due to profuse swelling of hand because patient developed compartment syndrome and the patient was taken in OT on the early morning and all stitches removed and wound opened and through cleaning and dressing the wound done under deep sedation.
O.P.No:1 denied that when complainant No:2 asked the doctor about the reason of such pain and fever then O.P.No:1 did not disclose anything, but fact is that O.P.No:1 stated the patient party the regular dressing is required and the doctor also gave some medicines for fever and pain but not a fact that there was no effect of the medicines. It is not a fact that on 07.09.2017 the doctor further took the patient at OT room after some blood test and stated to the patient party that 03 bottle blood is required, actually on 08.09.2017 the patient was taken to OT for cleaning and dressing of the wound and to avoid infection. That on 11.09.2017 blood test was done and the doctor found severe anemia. That on 13.09.2017 due to severe pallor one unit blood was transfused to the patient in the evening & another 02 units of blood was transfused to the patient on 14.09.2017 early in the morning. Fact is while complainant No:2 asked about the condition of the patient and the doctor & Nursing Staff stated him everything is OK. That the patient was discharged on 17/09/2017 from Sudha Nursing Home and she was taken to her house by her husband & at the time of release the doctor prescribed medicines and advice the patient to come to the nursing home for change the dressing and further check up. At the time of her release the doctor/O.P.No:1 thoroughly checkup the wound portion of her right hand and found that the operation was well developed and she was OK. That when the patient was at nursing home under the treatment of Dr. Subodh Biswas she was taken into OT regularly once in a day not for any operation but for proper dressing of the wound portion of the patient to prevent infection and everything was explained to the patient party. That in case of fracture both bones of fore arm and implants is still it is too early to say non-union within three months only. That during subsequent visit one check X-ray was done and the doctor found that the operation portion was satisfactory & was also shown to the patient party, that O.P.No:1 treated the patient till 13.12.2017 and at that time the fracture fore arm was OK and the doctor stated to the patient party that full recovery of the patient will take time. That after discharge repeated dressing was done at Sudha Nursing Home in OT without any charge considering her familie’s financial condition.
That it is beyond the knowledge of Dr. Subodh Biswas that what treatment was given to the patient by Dr. Salam Ali of Purnia or at Apollo Hospital at Chennai or at Paramount Hospital, Siliguri or at Calcutta Medical College.
That O.P.No:2, owner of Sudha Nursing Home gave the nursing home for treatment of the patient on 05.09.2017 as per recommendation of Dr. Subodh Biswas and the patient was discharged on 17.09.2017 & the staffs of nursing home followed the direction of Dr. Subodh Biswas and performed their duty properly with due care. O.P.No:2 neither treated the patient nor take any fees from the patient party for the purpose.
That Dr. Subodh Biswas have done the operation of the fractured right fore arm of the patient with due care and best of his knowledge, skill & concentration with due care. That the patient party unfortunately did not give any opportunity of further treatment after 13.12.2017. The O.Ps pray for dismissal of the case.
Points for consideration:-
- Whether there was/is any deficiency in service or medical negligence on the part of the O.P.No-1 & 2 which gives rise cause of action to file the case?
- Whether the complainants are entitled to get relief(s) as prayed for?
D e c i s i o n w i t h r e a s o n s
It is not disputed that on 05.09.2017 Ummahani Khatun/Complainant No:1 met with an accident at her house by falling upon staircase and she sustained fracture injury on her right hand i.e Radious & Ulna and she was taken at the chamber of Dr. Subodh Biswas (Ortho) i.e O.P.No:1 who after examining the patient, X-ray plate and report advised complainant No:2 to admit his wife/complainant No:1 at Sudha Nursing Home as operation is required, accordingly complainant No:1 was admitted there and Dr. Subodh Biswas prescribed some medicines and advised for some medical tests of the patient.
It is also not disputed that on the next day i.e on 06.09.2017 O.P.No:1 after perusing test reports decided for operation and the procedure of operation was ORIF i.e Open Reduction and Internal Fixation. Complainant No:2/P.W.1 admits in cross-examination that the doctor stated to him that the operation would be done by fixing a plate with nut bolt on the broken area of the hand and after operation O.P.No:1 stated to the patient party that the operation is successful.
P.W.1 in cross-examination stated further that on the next day of operation i.e on 07.09.2017 after getting report of the patient that she was suffering from fever and heavy pain, the doctor in the OT removed the stitch and made clean and dressed under deep sedation, thereafter the patient was relieved from fever & pain. He cannot say the reason whether the fractured place after operation was swelling or not & whether profuse swelling of hand and finger movement was very painful because patient developed compartment syndrome. He admits that Doctor (O.P.No:1) advised him that the process of cleaning and dressing would be done every day after discharge from the Nursing Home and that at first he took his wife to the Nursing Home for cleaning and dressing in every day and thereafter 1/2 alternative day he took her to the Nursing Home for that purpose. O.P.No:1 denied that on being asked doctor did not disclose complainant No:2/patient party about the reason for such pain & fever. Consequently, the complainant’s case that the patient was taken at OT room after some blood test on 07.09.2017 stands not proved.
Case of the complainant is that on 08.09.2017 O.P.No:1 further took the patient at OT room & stated to the patient party blood is insufficient, so blood is required and as per advice of the doctor three unit blood were given to the patient but the condition of the patient gradually deteriorated. P.W.1 in cross-examination admits that doctor examined his wife in the OT and after blood test he opined that she was suffering from anemia and three unit blood was given to her, but he cannot say the exact date when the blood was given.
O.P.No:1 stated that actually on 08.09.2017 the patient was taken to OT for cleaning and dressing of the wound to avoid infection, that on 11.09.2017 some blood test was done and doctor found severe anemia and that on 13.09.2017 due to severe pallor one unit blood was transfused to the patient in the evening and another two units of blood was transfused to the patient on 14.09.2017 early in the morning. O.P.No:1 denied that condition of the patient gradually deteriorated. The explanatory statement of O.P.No:1 held more convincing, thus stands.
P.W.1 in cross-examination stated that his wife was admitted and after operation at stay in the nursing home she was taken to OT regularly once in a day for cleaning & dressing. Consequently, his claim that the doctor began to dress thrice a day do not stand. Though he denied but it is quiet probable that the doctor stated to him that it was done so that infection might not be caused in the hand & that operation was more developed and the patient was OK. He cannot say in case of both bones of fore arm and implant steel it is too early to say non union of the same within few months.
Admittedly, the patient was discharged from the nursing home on 17.09.2017 & she was taken to their house by her husband. P.W.1 in cross-examination stated that at the time of discharge X-ray was done and medicines were prescribed by the doctor & he was present at the time of check up of the patient and the X-ray plate with regard to the condition of the patient’s hand was shown to him but he cannot remember where X-ray plate was handed over to him or not at the time of discharge of the patient. P.W.1 further admits that on the date of discharge on 17.09.2017 the doctor (O.P.No:1) thoroughly checked up the wound portion of the right hand of his wife and the doctor stated to him that the operated area of the patient was being developed. He does not know whether doctor made dressing to develop the cure of the three portion and to prevent infection and he has no medical knowledge about after how many days of the operation the bone would be united (joined).
It is not disputed that O.P.No:1/Doctor treated the patient till 13.12.2017. Though P.W.1 denied but statement of O.P.No:1 that at that time the fractured right fore arm was OK & the doctor stated to the patient party that the full recovery of the patient will take time but O.P.No:1’s reply to that effect appears to us more convincing & stands. P.W.1 admits that in OT there shall be none except doctor and patient, consequently his statement that the doctor as well as Nursing staffs were failed to give him any rational answer has no leg to stand.
Complainant No:2 stated that there was no improvement of his wife then he decided to take his wife before Dr. Salam Ali of Purnia and on 14.12.2017 he took his wife before Dr. Salam Ali where said doctor advised for X-ray & after examining the plate as well as X-ray report said doctor opined that the operation was totally unsuccessful, so further operation is required and the patient was admitted in the nursing home under Dr. Salam Ali who removed the Servo of the plate & advised for plastic surgery and he called one doctor of plastic surgery, who after examining the patient advised that plastic surgery is not possible as open part of the bone already damaged and that damaged part of the bone should be removed and that operation can be done after recovery from infection. He added that his wife was treated by Dr. Salam Ali for the period from 19.12.2017 to 26.12.2017 and the operation was done.
Prescription shows that Ummahani Khatun/Complainant No:1 was admitted to Pain Clinic Bone and Joint Care Unit at Purnia under Dr. M.Salam Arif (Orthopedic Surgeon) on 19.12.2017 and said doctor lastly examined her on 25.02.2018. In cross-examination P.W.1 stated that there is no mention in the medical prescriptions or reports given by Dr. Salam Ali that O.P.No:1 treated/operated the patient wrongly or made operation unsuccessfully but orally stated. Such oral statement needs corroboration but neither Dr. Salam Arif nor so called Plastic Surgeon came to corroborate the same.
As P.W.1 admits that at the time of discharge X-ray was done patient was examined and medicines were prescribed by the Doctor/O.P.No:1 & X-ray plate with regard to the condition of the hand of the patient was shown to him, it is presumed that on the date of discharge dated 17.09.2017 there was progressive improvement of operating portion, that to supported from the subsequent treatment of the patient by O.P.W.1 till 13.12.2017. Had there been improper operation there should be infection which is neither pleaded nor proved by P.W.1, complaint ought to have been raised by the patient or patient party. The patient/victim/complainant No:1 should have been examined, who is only the competent person/witness to say as to the status of her treatment/operation/recovery and her non-examination held fatal in this case and adverse presumption may be drawn.
O.P.No:1 stated that after 13.12.2017 if any infection is found in the operation portion of the patient that may be due to the negligence of the patient.
Considering above facts and discussion, we are of opinion that there was no deficiency in service or medical negligence on the part of O.P.No:1/Dr. Subodh Biswas as on 13.12.2017. O.P.W.2 Dr. D.M.Majumdar as owner/proprietor of Sudha Nursing Home gave the nursing home for the purpose of treatment of complainant as recommended by O.P.W.1 and neither O.P.No:2 treated the patient nor he took part regarding the operation or treatment of complainant No:1 but staffs of his Nursing Home performed their duty with due care on advice of O.P.No:1 only, so we find that there was no deficiency in service on the part of O.P.No:2 or Sudha Nursing Home.
Though not much important but it appears that after treatment of Dr. Salam Arif P.W.1 took his wife to Apollo Hospital, Chennai where she was treated couple of days under Dr. Arun Kannan but what treatment he or said hospital has provided to the patient that is not proved. Similarly, what treatment was provided by Dr. Uday Sarkar at Paramount Hospital, Siliguri & thereafter what treatment was provided to the patient at Kolkata Medical Hospital that is also not proved up to the mark. Rather P.W.1 admits in cross-examination that he had no knowledge about the procedure of treatment by each doctors. P.W.1 stated that his wife underwent operation on 03.01.2018 & again on 03.02.2018, so how the patient was treated by Dr. M. Salam Arif on 25.02.2018. Besides we can’t understood no document is produced as to the treatment of the patient at Paramount Hospital, Siliguri under Dr. Uday Sarkar or at Kolkata Medical College & Hospital.
Though P.W.1 denied but O.P.W.1/Dr. Subodh Biswas stated in his examination-in-chief that he has done the operation of the fractured right fore arm of the patient with due care and with best of his knowledge, skill & concentration, which remains unchallenged as he has not been cross-examined by or on behalf of the complainant in spite of several opportunities given, even in spite of lapse of so many dates questionnaire was not submitted by or on behalf of the complainant. P.W.1 admits that he has not filed any written complaint before the CMOH or any other authority in respect of treatment of his wife by O.P.No:1/Dr. Subodh Biswas.
Ld. defence Advocate referred three citations Re: Martin F. D’ Souza Vs Mohd. Ishfaq of Supreme Court of India in Civil Appeal No:3541 of 2002, Re: Jacob Methew Vs State of Punjab and Anr of Supreme Court of India in Case No: Appeal(Crl.)144-145 of 2004, Re: Krishna Murari Sinha Vs Dr. Md. Basheer Alam of N.C.D.R.C reported in equivalent citation: IV (2006) CPJ 332 NC. It has been observed that merely because of the fact that final outcome was not ideal and to the satisfaction of the patient, it was not the proof of negligence. It has further taken note of the fact that the complainant did not produce any evidence in this regard and no expert was examined. Applying Bolam test the standard under professional skill and care accepted by a doctor is that of a reasonable average professional. Tine Law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet. No negligence or deficiency in medical service could be attributed to Dr. Basheer Alam. The principles laid down in the citations favoured the contention of O.P.No:1/Dr. Subodh Biswas.
We, therefore, are of the opinion that the complainants are not entitled to get relief as prayed for being the complaint baseless & exaggerated.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-09/2019 be and the same is dismissed on contest against the O.Ps.
No order as to cost.
Let a copy of this order be given to the parties free of cost.
