IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD AT BERHAMPORE.
CASE No. CC /165/2014..
Date of Filing: 27.11.2014. Date of Final Order: 07.09.2016.
Complainant: Shri Pritam Bhattacharyya, on Active Service Member (Engineer),S/O Late Manotosh
Bhattacharyya, 95, South A.C. Road, P.O. Khagra, Dist. Murshidabad. Pin-743103
-Vs-
Opposite Party: Dr. Swapan Roy (Orthopedic Surgeon), 41, K.N. Road, P.O.& P.S. Berhampore, Dist. Murshidabad. Pin 742101.
Present: Sri Anupam Bhattacharyya ………………….President.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for compensation of Rs.20 lacs from OP –doctor for medical negligence in the treatment of his mother.
The complainant’s case, in brief, is that on 21.11.13 at about 11 A.M. while Smt. Gouri Bhattacaryya, mother of the complaint was going for medial check up within 200 meters from her residence she met with an accident by cyclist as a result she fell down in the drain and sustained fracture injury on her elbow. Soon after she was taken to the Chamber of OP/Dr. Swapan Roy where surgical intervention was advised and suggested fixation of fractured elbow by nut and bolt and on the same day she was admitted in Berhampore Maternity & Nursing Home & USG Unit on exchange of Rs.20, 000/- but bill not provided with the assurance of giving at the time of discharge. There OP-Doctor Swapan Roy operated Smt. Gouri Bhattachayya, mother of the complainant and fixation of her elbow by nut bolt was carried out. Afterwards, continuous medical treatments were going on by the doctor and physiotherapist (Rs. 150/- per day) but no improvement. Then, on 15.12.2013 another X-Ray of that joint of Gouri Devi, mother of the complainant was held from same clinic Datta’s X-Ray but did not reveal any nut &bolt. This is not only bold negligence on medical treatments but also criminal activities namely forgery. Thereafter, on the basis of application of the complainant Dr. Sikha Adhikary and Dr. Tanmoy Mukherjee visited at Murshidabad and held enquiry in the matter and certified medical negligence of Dr. Swapan Roy. For such medical negligence the complainant has prayed for compensation of Rs.20, 00,000/-. Hence, the instant complaint case.
The written version filed by the OP-doctor, in brief, is that the investigation was carried out by Dr. Shikha Adhikary, Joint Director of Health Services and Dr. Tanmoy Mukherjee(O.S.D), Joint Director of Health Services on part of this OP. But no negligence was detected and no adverse effect of operation in elbow joint after operation was also not found out. Moreover, such investigation inordinate delay of one year after operation could not yield and adverse act of Dr. Swapan Roy with regard to this operation could possibly found out. The complainant did not disclose in the complaint of any of post operation complication nor the complainant ever treated his mother by other independent Orthopedic Surgeon or doctor of medicine which indicates that mother of the complainant was fully recovered from injury sustained by her with elbow joint fracture. The mother of the complainant has been leading normal life using normally her left hand. The complainant never stated about subsequent incurring expenses for the sake of alleged injury of left hand elbow fracture. There was no negligence on the part of the OP-doctor and for that the complaint is liable to be dismissed. Hence, the instant written version.
Considering the pleadings of both parties the following points have been framed for the disposal of this case.
Points for consideration.
1. Whether the complaint is maintainable in law and fact?
2. Whether there is any cause of action to file the present case?
3. Whether the complaint is bad for non-joinder of parties?
4. Whether the complainant is entitled to get the relief as prayed for?
5. To what other relief/reliefs the complainant can get?
Decision with Reasons.
Point Nos. 1 to 5.
All the points are taken up together for the same of convenience.
The instant complaint has been filed for compensation of Rs.20, 00,000/-for medical negligence.
The complainant’s case is for compensation of Rs.20 lacs for medical negligence where doctor claimed that nut& bolt were joint for fixation but no such nut-bold were fixed with the elbow of his mother.
To prove the case the complainant has adduced his evidence supported by affidavit and has filed documentary evidence in support of his case namely Xerox copies of report of expert committee held on the basis of allegation of medical negligence in the treatment of Smt. Gouri Bhattacharyya, mother of the complainant before Director of Health Service, W.B. and Xerox copies of some vouchers and prescription of OP-Dr. Swapan Roy.
The allegation of medical negligence is in the treatment of Gouri Bhattacharyya, mother of the complainant.
She sustained fracture injury on her elbow met with accident by cycle.
In this case mother has neither filed the instant complaint by herself nor has deposed in this case either by filing evidence on affidavit or on dock.
As per provisions of the C. P. Act, the complainant has right to file the complaint on behalf of his mother.
The proceedings under the C. P. Act is summary procedure.
There is also provision to adduce evidence supported by evidence.
The OP can file questionnaire to the complainant.
In this case the complainant has filed the report of expert as to the medical negligence alleged by the complainant before the Directorate of Health Service, W.B.
From the report of the expert forwarded to the complainant by Dy. Directorate of Health Service (Admn) N.B, filed by the complainant before this Forum, it appears that before the Board the OP-Dr. Swapan Roy in his statement wrote that the K wire was removed after 23.11.2013 and the patient was charged Rs.9000/-only as package cost and Smt. Gouri Bhattacharyy in her statement wrote that as the pain did not subside she went to the doctor, who scolded her and asked to continue the exercise. As the pain did not subside she did an X-ray herself and did not find any screw or plate.
The following opinion was passed in this report:-
“In lateral view in both X-rays there is DOUBLE ARC sing suggesting capitullar fracture with possible involvement of trochlea and anterior and superior displacement of fractured fragment. No evidence of reduction of fractured fragment is noted in the later X-ray dated 15.12.13. No metallic fixation screw plate or K-wire is noted in both X-rays. No evidence of fixation screw plating is noticed in the later X-ay dated 15.12.13. In fracture capitellum, internal fixation by K-wire is one of the modality of treatment but K-wire should be in situ for 304 weeks till radiological sign of union appears.”
Also the following remarks have been given in the report by the experts:
- That patient had capitullar fracture on 21.11.2013.
- That she was admitted in Berhampore Maternity & Nursing Home & USG unit on 21.11.2013 were she was operated.
- That she was discharged on 23.11.2013.
- that one of the Clinical establishments visited are maintaining record properly thus violating the WBCE Rules.
- That the patient attended the Chamber of Dr. Roy on 23.11.2013, 30.11.2013 and on 10.12.2013.
- That no where in the prescription it was found written the date of removal of K-wire.
- That X-ray finding suggests that the fracture was not reduced and K-wire should be in situ for 3-4 weeks till radiological sign of union appears.
- That even if the K-wire is removed it was done before union took place.
- There was negligence on the part of Dr. Swapan Roy.
In this regard the Ld. Lawyer for the OP has advanced argument that the complainant being not cross-examined and the maker of the documents filed being not examined on dock giving opportunity of cross-examination, the said documents have no evidentiary value and as such all the alleged evidence adduced by the complainant has no evidentiary value.
At the same time the OP-doctor in this case has neither adduced any evidence of himself supported by affidavit or examined on dock and also has not adduced any cogent evidence to rebut the documents as to report of expert forwarded by the Dy. Director of Health Service (Admn), WB on the basis of the allegation of the complainant.
In this case the OP has simply contesting the case by filing written version denying the each and every allegation of the complainant against him but the settled principle is that written version is not a piece of evidence and the same is nothing but the pleadings of the OP or in other words this is the defence case of the OP.
In this case mother of the complainant has got treatment by OP Dr. Swapan Roy having fracture injury, on her elbow for the accident met with bi-cycle and suffered damages for the medical negligence in her treatment by OP-Dr. Roy.
It is true that in this case the patient Gouri Bhttacharyya has neither filed the case personally nor deposed in this case either coming before this Forum on dock or by filing her evidence supported by affidavit.
Already discussed under this Act the complainant can file this case on behalf of his mother praying for compensation for the damages suffered by his mother for the medical negligence of the doctor in his treatment.
It is also true that in this case the complainant himself has neither deposed on dock and cross-examined by the Ld. Lawyer for the OP nor has examined the maker of the documents filed to prove his case has been examined on dock and cross-examined accordingly by the side of OP.
But the complainant has filed his evidence supported by affidavit and has produced all the documents in original including X-ray plates before this Forum during hearing argument and he has filed Xerox copies of all those documents along with the complaint petition at the time of filing of this case, and the same was duly served upon the OP-Dr at the time of serving notice of this case.
Where, the OP-doctor has not filed any such evidence from the side of OP-supported by affidavit and also has not adduced any document in the manner the complainant has filed to rebut the case of the complainant inspite of specific opportunity vide order No.21 and 23 dated 01.07.16 and 18.8.16 respectively were given to the OP for adducing evidence after completion of the argument of the Ld. lawyer for the OP while the complainant filed petition on 12.4.16 for passing final order on the basis of his evidence and documents already filed.
Inspite of such order when neither parties came forward for further hearing as well as for adducing any evidence we have no other alternative but to take up the case for disposal on the basis of available materials on record and considering the argument already advanced by both parties and also considering the last petition dt. 8.8.16 along with a postal order of Rs.50/- received from the complainant praying for passing final order.
From the expert’s report it is clear that both the patient Gouri Bhattacharyya and the OP-Dr. Swpan Roy were present before the board and made their statement in writing.
There is no rebuttable evidence as well as any iota of evidence to disbelieve the report of the expert forwarded by the Dy. Director of Health Service (Admn.) W.B.
From the remarks of Expert report it appears from remarks No.8 that even if K-wire is removed it was done before union took place and from remarks No.9 there was negligence on the part of Dr. Swapan Roy.
Though Expert doctors , maker of the report, has not come before this Forum on dock and has not been cross-examined to decide the question of negligence on the part of the doctor drawing attention to rebut the same where doctor himself appeared before that particular Board and made this statement in writing we find nothing to disbelieve the instant expert report and as such we have no other alternative but to conclude that OP-Dr. Swapan Roy had medical negligence in the treatment of Gouri Bhattacharyya who had capitullar fracture on 21.11.2013.
Regarding damages in the report there is nothing mentioned as to any permanent disablement with percentage of disablement for such medical negligence.
Also, the patient Gouri Bhattacharyya, mother of the complainant being not appeared before this Forum, the extent of disablement is not categorically established.
Be that as it may, it is clear that the patient of 55 years old widow mother sustained capitullar fracture and the same was not united properly for medical negligence, cannot function normally as before.
In this case the complainant has claimed compensation of Rs.2o lacs without giving any details as to the justification of such claim.
The vouchers he has filed comes to Rs.1567/-. His case is that he gave Rs.20000/- to Dr. Roy without any receipt, the same cannot be taken into consideration for absence of any circumstantial corroborative evidence as to such payment.
For absence of any cogent evidence as to justification of the claim of compensation for Rs.20 lacs and considering the unsuccessful treatment capitullar fracture of a 55 year old widow mother, we are of view that Smt. Gouri Bhattacharyya will get compensation of Rs.1, 00,000/-(Rupees one lac only) .
Considering the above discussions as a whole we find that all those points are disposed of in favour of the complainant in part and as such the complaint be allowed in part and Smt. Gouri Bhattacharyya, mother of the complainant will get compensation of Rs.1,00,000/- only.
Hence,
Ordered
that the Consumer Complaint No. 165/2014 be and the same is allowed on contest in part.
Smt. Gouri Bhattacharyya, mother complainant is entitled to get compensation of Rs.1, 00,000/-(Rs. one lac only) from the OP-Dr. Swapan Roy.
The OP-Dr. Swapan Roy is directed to pay Rs.1, 00,000/- to the mother of the complainant, Smt. Gouri Bhattacharyya within 60 days from the date of passing of this order, failing which OP is to pay Rs.50/- per day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
There will be order as to cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under regd. post to the concerned parties as per rules, for information and necessary action.
Member President
