In the early morning of 15/7/2012 the complainant having felt uneasiness had been to the chamber of Dr. Kiriti Bhushan Sinha (O.P.3) located at Huchukpara, Purulia who on examination of the complainant observed it to be a complicated case. Following his advice the complainant with the help of his son went to K.M.Memorila Hospital and Research Centre (O.P. No. 1) where Dr. Sujit Sinha, after examination of the complainant, placed a temporary pacemaker. Thereafter, Dr. Sabyasachi Mukhopadhyay (O.P.2) a cardiologist attached to that hospital examined the complainant and decided to place a permanent pace maker what he did on 17/7/2012 at the left side of the chest of the complainant. The pacemaker was made by Vitatron and supplied by Keshawa Enterprises, Patna and the price of it was 1,73,250/- (vide annexure 1). Two days thereafter, the complainant felt jerking in his body and Dr. Mukhopadhyay was informed forthwith and as per his instruction over phone called the supplier and the programmer Mr. Rajib Ranjan who attended the hospital and made a new programme by remote system. The jerking started on 19/7/12 and continued upto 21/7/12. The complainant got no relief from the problem. He was discharged on 21/7/12 with discharge certificate, copy of which is Annexure 2.
On returning home the complainant felt abnormal jerking in his body and Dr. Mukhopadhyay was informed accordingly who advised the complainant to come to aforesaid hospital and thereafter on 26/7/12 the programmer made a new programme but to no good. Again a new programme was made on 4/8/12 at the hospital and the complainant was released. The complainant on 6/8/12 was again admitted in said hospital as indoor patient and on examination Dr. Mukhopadhay detected that the atrial lead was not appropriately fixed at the time of implantation of the pacemaker and on 6/8/2012 another operation of the left side of the chest was done for reposition of atrial lead and the complainant was discharged on 9/9/12 (vide Annexure 3). The complainant further on 12/8/12 attended the hospital for dressing when the lab assistant detected a small perforation in the operated site on the chest of the complainant which was informed to Dr. Mukhopadhyay over phone but was given no heed to it. On 15/8/2012, the complainant again went to that hospital for dressing where the lab assistant found another perforation at the operated site which was also made known to Dr. Mukhopadhyay who gave no importance to it. Said two perforation gradually turned into gangrenous and the operated area became soft and puffy. Fluid started coming out from that place giving much pain and uneasiness to the complainant. The complainant further visited said hospital on 17/8. 27/8, 01/9, 07/9, 14/9, 19/9, 24/9 and 09/10 when said doctor simply prescribed some medicine and advised for different pathological test which were strictly followed. Despite all these gangrene developed and watery pus began to come out from that site on 12/11/12 which was informed to Dr. Mukhopadhyay. He advised admission in the hospital. Despite remaining treatment for about 76 days under Dr. Mukhopadhyay no development took place and being apprehensive of wrong and negligent treatment conducted by Dr. Mukhopadhyay the complainant lost faith in him and went to B.N.Hridyalaya, Jamshedpur and Dr. Bimalendu Kumar at that end detected that watery pus was discharging profusely from the operated portion and he advised for replacement of the pacemaker.
Thereafter, the complainant had been to Rabindra Nath Tagore Institute of Cardiac Science, Calcutta on 16/11/12 and got admission there. On examination Dr. Anup Khetan of RTIICS, Kolkata found that the operated portion was infected and advised for replacement of the pacemaker by a new one. On 19/11/12 a new permanent pacemaker was implanted on the right side of the chest of the complainant after removal of infected pacemaker and lead and after due treatment he was discharged on 21/11/12.
Due to negligent act of the opposite parties in the matter of rendering proper medical treatment to the complainant his normal life has been disturbed for a long period and has been subjected to mental, physical and financial harassment. Hence the case.
Having denied all the material allegations and claiming that proper treatment and advise have been given to the complainant the O.P. 1 jointly with O.P. 2 contested the case by filing separate written version. The contention of O.P. 1 is that the patient was suffering from sinus arrest (sick sinus syndrome). Temporary pacemaker was inserted and thereafter best quality pacemaker with best price was supplied to the complainant and was duly implanted. Thereafter, programming and re-programming were done as were found necessary for which no cost was claimed from the complainant. Information being received that pus was draining out and on confirmation of infection immediate decision of ex-plantation of pacemaker was advised followed by sterilization and re-implantation of the same pacemaker. It is further claimed that since the testing during the operation as well as the first
two days were uneventful the procedure was correctly performed in the first instance and perhaps subsequent event occurred due to some inadvertent movement of the ipsilateral shoulder by the patient. Atrial lead dislocation is stated to be most common complication of the pacemaker implantation. When repeated attempts of reprogramming did not relieve the patient of his symptoms of jerking and hiccups a decision of lead repositioning was taken and thereafter, proper positioning of leads, proper post implantation testing and good broad spectrum antibiotic was administered to the patient as per protocol. The second operation was done without any charge. Dressing was also done by O.P. No. 2 personally in two or more occasions. On 12/8/12 at the time of dressing, the lab assistant did not report any perforation as alleged but only some redness which is common because of the re-operation on the said site was noticed. On 15/8/12 the lab assistant reported only mild redness when conservative measures are advocated in such condition. It is further asserted that there was no evidence of gangrene at any point of time because gangrene would have caused the entire skin to rot, erode and slought out, evidence of which were never found. Pleading that atrial lead dislodgment rates is upto 5% and pacemaker pocket infection are to the tune of 19% the occurrence of such incident in the patient is unfortunate. Claiming that there was no negligence, the prayer for dismissal of the case has been made.
The O.P. No. 2 has practically put forward the same pleadings in his own written version as O.P. No. 1 stated in his written version.
Having denied all the material allegations the O.P. No. 4 through his written version has contended that there is no negligence or deficiency in service on his part as he was not involved in the surgery for implantation of permanent pacemaker which was only done by O.P. No. 2. He was only consulted during the complainant’s follow up in OPD for suspected surgical site wound infection and according to treatment norms he has advised the patient antibiotics, dressing up wounds and culture and sensitivity of wounds of as per protocol of conservative treatment of surgical site infection. As the wound was not heeling he advised for replacement of pacemaker. The allegations against him are baseless and are not supported by admissible evidence. He accordingly has prayed for dismissal of the case.
Challenging the jurisdiction of this Forum to entertain this case the O.P. No. 5 with a view to contest this case in his W/V has contended that the
present complainant is neither the consumer of this O.P. nor has hired or availed of any service from it. There is no privity of contract between the complainant and the present O.P. The present complaint has been termed as frivolous, vexatious etc and that it does not constitute any prima faci case as because the pacemaker manufactured by vitatron was supplied not to the complainant but to the K.M.Memorial Hospital. The prayer for dismissal of the complaint has been made with further assertion that question of supply of cash memo and warranty card to the complainant did not arise because there was no dealing with him but the same were given to K.M.Memorial Hospital as the pacemaker was supplied to it.
Points for consideration:
- Whether this Forum has jurisdiction to entertain the complaint?
- Whether there is any negligence on the part of O.P. 1 and 2 in rendering due treatment to the complainant?
- Whether the complainant is a consumer under O.P. No. 5?
- Whether the complainant is entitled to get relief/reliefs as prayed for?
- To what other relief/reliefs is the complainant entitled?
Decision with reason:
Point Number1:
A challenge has been put forward from the camp of O.Ps specially through the pleadings of O.P. No.5 that this Forum has no jurisdiction to entertain this complaint for the reason that all the O.Ps except O.P. No. 4 are either residing out of the jurisdiction of this Forum or have been working for gain beyond the jurisdiction of this Forum. True it is that O.P. Nos.1, 2, 4 & 5 are residing and/or working for gain beyond the jurisdiction of this Forum. But O.P. No. 3 by whom the complainant was examined and advised in respect of his ailments is a resident of Purulia and also works for gain within the jurisdiction of this Forum. Be that as it may, it is an established principle of law that objection as to jurisdiction to entertain and try case has to be taken at the earliest opportunity and such objection has to be got resolved through the court or Forum at the very initial stage of the proceeding. In this case only the O.P. No. 5 at the time of filing its written version has taken such plea but did not take any attempt by moving the forum, to resolve such plea of jurisdiction of this Forum. On the other hand, the contesting O.Ps have taken active participation in the proceeding till the end of the proceeding and thereby have submitted to the jurisdiction of this Forum by implication. It is therefore, too late for them to re agitate the matter.
That apart, the jurisdiction of the Forum is also determined keeping in view the place where the cause of action arises. It is an accepted principle that cause of action is nothing but a bundle of facts that enables the aggrieved parties to knock the door of the legal system. From the fact of this case it is undisputed that in the morning of 15/7/12 the complainant felt uneasiness and had been to a doctor (O.P.No. 3) who is resident of Purulia. Therefore, the initial fact which was added to other facts really constituted the cause of action which prompted the complainant to file this case in the Forum located at Purulia. Moreover, atleast in a single location the programmer came to residence of the complainant at Purulia to programme the pacemaker by remote control process which did not yield desired result which is taken as part of cause of action that arose within the jurisdiction of this Forum. It is immaterial that more facts (of the bundle of facts) arose out side the jurisdiction of this Forum. Since at least one of the facts of the bundle of facts has arisen within the jurisdiction of this Forum and since all the contesting O.Ps have submitted to the jurisdiction of this Forum without raising the point of jurisdiction and getting it resolved at the earliest stage we are of the clear view that this Forum has rightly assumed jurisdiction to entertain the complaint. The point is disposed of accordingly.
Point Nunmer.3
The plea of O.P. No. 5 is that the complainant is not a consumer because the pacemaker was not supplied to him but to the K.M.Memorial Hospital. O.P. No. 5 is the supplier of the pacemaker manufactured by Vitatron which was implanted in the body of the complainant. Plea of the O.P. No. 5 is that there was no privity of contract between it an the complainant for supply of such pacemaker to the complainant but it really supplied the pacemaker to K.M.Memorial Hospital, Jharkhand and received the price for it. Even if that be so it becomes an admitted position that the complainant paid the price of the pacemaker to the hospital which got it delivered from O.P. No. 5 on payment of price given by the complainant. So, even though there was no privity of contract directly between the complainant and O.P. No. 5 yet in fact the complainant paid the price pf the pacemaker supplied by O.P. No. 5 via the concerned hospital being O.P. No. 2. So in fact, the complainant was the ultimate consumer of the pacemaker on payment of price. Therefore, the plea taken by O.P. No 5 is not acceptable and it is discarded. The issue is accordingly decided.
Point Numbers 2, 4 & 5:
For the sake of convenience and brevity of discussion and to avoid unnecessary repetition all those points are taken up together.
Undisputedly, in the morning of 15/7/12 the complainant felt uneasiness and went to the chamber of Dr. Kiriti Bhushan Sinha at Huchuk Para, Purulia who on examining the complainant found the condition complicated and advised him to go to K.M.Memorial Hospital, Chas, Bokaro. The complainant did so and at that end one Dr. Sujit Singh after examining the complainant placed temporary pacemaker. Admittedly, Dr. Sabyasachi Mukhopadhyay, a cardiologist attached to that hospital, examined the complainant and decided to implant a pacemaker what he actually did on 17/7/12. Admittedly, the pacemaker was made by Vitraton and supplied by Keshawa Enterprises, Patna.
According to the complainant, two days after the operation i.e. on 19/7/2012 he felt jerking in his body and it continued upto 21/7/12. During this period neither Dr. Mukhopadhyay nor the K.M.Memorial hospital authority had taken any step to save the complainant from such jerking but he was discharged on 20/7/12. Such abnormal jerking continued even after coming back home and being informed Dr. Mukhopadhyay advised the complainant to come to said hospital so that on arrival of the programmer the pacemaker could be programmed.
Further allegation is that no relief could be achieved even after programming and re-programming for several times. After operation dressing continued in the operated portion. During such dressing in a portion of the operated part two perforations developed and turned gangrenous. Fluids and pus started coming out. No effective treatment was imparted despite due information of such condition. The complainant lost faith and had been to Brahmananda Narayan Hridyalaya, Jamshedpur and ultimately went to Rabindranath Tagore International Institute of Cardiac Sciences, Kolkata because Dr. Bimalendu Kumar of BNH, Jamshedpur advised for replacement of the pacemaker by a new one as the earlier one was infected one.
Ultimately a new pacemaker was implanted at the right side of the chest of the complainant at RTIICS by Dr. Anup Khetan on 19/11/12. Thereafter the complainant was discharge on 21//11/12 (vide Annexure 6).
In this background of the facts and circumstances of the case it has to be determined whether O.P. No. 1 and 2 were negligent in rendering due service to the complainant through the medical treatment imparted by O.P. 2 at O.P1’s hospital. It also requires to ascertain whether the O.P. No. 5 is any way responsible which initially supplied the pacemaker.
We have meticulously gone through the petition of complaint, the written versions submitted by the contesting O.Ps, the written arguments (followed by oral submission of the complainant and other O.Ps as per record) and also have taken into consideration the entire oral and documentary evidence submitted by the respective parties. On perusal of all such materials we convincingly find that after Implantation of the pacemaker by Dr. Mukhopadhyay (O.P.No. 2) at K.M.Memorial Hospital (O.P.No. 1) the complainant felt abnormal jerking in his body which was reported to O.P. No. 2 and he advised programming of the pacemaker. Such advice in respect of programming of the pacemaker by itself suggest that the patient was feeling certain abnormalities (which according to the complainant is jerking) for which such advice of programming had to be given. Had there been no such complaint question of advising for programming the pacemaker would not arise. Admittedly, programming and repeated re-programming did not yield satisfactory result. On the other hand, during dressing of the operated part it was seen that two perforations have developed therein and fluid like pus was coming out signifying development of infection of that part of the body. Though the O.Ps tried to deny development of such perforations at that part of the body and the said part has become gangrenous yet it could not be denied in its entirety which can be ascertained from the fact that the O.Ps had admitted development of reddishness etc in that part. Moreover, loosing faith in the treatment at that end and the complainant’s moving towards RTIICS for his ultimate redressal seems to be a corroborative piece of evidence consistent with normal human conduct. Because if he were really satisfied with his treatment at K.M.Memorial and got himself cured of his ailment where he has spent a lot of money, there was absolutely no reason for him to rush to any other hospital where further spending could be easily anticipated. That he was not satisfactorily cured at the end of K.M.Memorial hospital is easily ascertainable from the fact the pacemaker initially implanted did not yield the desired result as after such implantation he felt abnormal jerking in the body as well as from the operated part fluids and pus started oozing out. What may be the possible reason for such unwanted situation? The oozing out pus must be due to some infection. How this infection developed in that part has to be haunted. Implantation of pacemaker is nothing but placing a foreign particle (i.e. pacemaker) in human body. Such implantation may not be accepted by the body provided the body is not so prepared. Since the doctor really implanted the pacemaker, presumably he must have satisfied himself that the body immunity is of that degree to accept a foreign particle. If that be so, there is no negligence on the part of the doctor at this stage. Thereafter, the doctor was to satisfy himself that the pacemaker is adequately sterilized and free from infection so that there could be no possibility of developing any infection after such implantation. But we find that admittedly infection started after such implantation. So the pacemaker so implanted was not perfectly sterilized and free from infection. That the operated part was infected is confirmed by the observation made by the doctors RTIICS, Kolkata (vide Annexure 6). In this background specially that the body of the complainant was perfectly suitable to accept a foreign particle in the body we have no other alternative but to conclude that the pacemaker so implanted was infected and obviously was not perfectly sterilized to make it free from developing any infection at post operative time. The Doctor (O.P.No. 2) having implanted such pacemaker must be held to be negligent in rendering due service.
Admittedly, there was atrial lead dislocation of the pacemaker. It is claimed by O.P. 2 that such dislodgment is one of the most common complication of the pacemaker implantation and this perhaps occurred, in respect of the complainant, after some inadvertent movement of the ipsilateral shoulder by the patient. The O.P. 2 is therefore not sure whether such dislodgment occurred due to movement of ipsilateral shoulder as he has used the word perhaps which sounds uncertainty. If the patient was really instructed to avoid movement of ipsilateral shoulder then expectedly he must have not done it at his own peril. In this background the reason for dislodgment of atrial lead must be attributable to wrong placement of the pacemaker. That being the apparent and acceptable reason we have no escape but to hold that the concerned doctor misplaced the pacemaker which he did without proper care and this act amounts to negligence.
Therefore, we find two fold negligence on the part of the doctor O.P.2.
Number (1) he implanted the pacemaker without making him sure that the pacemaker was properly sterilized and free from all shorts of infection.
Number (2) he implanted the pacemaker without making him sure that the atrial lead has been properly placed and there is little chance for its dislodgment.
Simultaneously, with the above observation we are to conclude that O.P. No. 5 must have supplied an infected pacemaker specially because there is no evidence that the pacemaker became infected after its supply to the hospital. In this respect the O.P. No. 5 is also held responsible for supplying an infected pacemaker despite accepting true cost of it of same quality free from infection.
We do not find any negligence on the part of O.P. Nos. 3 &4 also we do not find any negligence on the part of O.P. No. 1.
From the claim of the complainant supported by voucher we find that he had to spend Rs. 2,67,881.00 for medicine, pathological test, charges for implantation of pacemaker, going to and coming back from K.M.Memorial Hospital etc. He had to spend Rs. 1,73,250/- for the pacemaker supplied by O.P. No. 5.
He had to spend further Rs. 1,24,715.00 at RTIICS, Kolkata for removal of infected pacemaker and for implantation of new one, medicine etc. These amount he could avoid provided implantation of his first pacemaker were successful. But due to negligence on the part of O.P. 2 and supply of infected pacemaker by O.P. 5 further episode had grown up causing further harassment and financial implication to the complainant.
Therefore, having regard to entire facts and circumstances of the case the gist of which has bee reflected above we are of the opinion that O.P. 5 must return Rs. 1,73,250.00 being the cost of the pacemaker to the complainant together with some compensation and litigation cost.
Since the first operation and the second operation respectively for implantation of the pacemaker and to rectify the dislodgment of atrial lead at the end of K.M.Memorial became unsuccessful the amount spent for those purposes must also be refunded to the complainant together with compensation and litigation cost and such amount should be paid back by O.P.2. That amount comes to Rs. 2,67,881.00 which is supported by bills and vouchers. So he is entitled to get back Rs. 2,67,881.00+ Rs. 1,73,250.00= Rs. 4,41,131.00 but the complainant has prayed for Rs. 3,47,219.00 which includes the cost of the pacemaker being 1,73,250.00. Since cost of the pacemaker has to be realized from O.P.5 the O.P. 2 is therefore required to pay Rs. 3,47,219.00 - Rs. 1,73,250.00= Rs. 1,73,969.00.
Undoubtedly the complainant was in need of a pacemaker for his relief what he ultimately got from RTIICS. If he would have gone to that hospital at the first instance his relief could be achieved at that end spending the money what he has spent there. If that would have been the reality then the money what he spent at K.M.Memorial Hospital were not required to be spent. So the complainant is entitled to get back the amount that he spent for the first pacemaker and the amount spent at K.M.memorial Hospital. Said amount has been noted above.
In view of the above findings based on respective pleadings, evidence, and argument, the petition of complainant is liable to be allowed. Hence,
ORDERED
That the petition of complaint be and the same is allowed on contest against the contesting O.Ps with cost of Rs. 10,000.00 (ten thousand) only to be bourne by O.P. No. 2. The complaint is allowed exparte against O.P. No. 5 with cost of Rs. 10,000. The complaint is dismissed against O.P. No. 1, 3 & 4.
The O.P. No. 2 is directed to pay a sum of Rs. 1,73,269.00 (One lakh seventy three thousand two hundred sixty nine) only together with compensation of Rs. 1,00,000.00 (Rs. One lakh) only to the complainant.
O.P. No. 5 is directed to pay a sum of Rs. 1,73,250.00 (One lakh seventy three thousand two hundred fifty) only together with compensation of Rs. 1,00,000.00 (One lakh) only to the complainant .
All such payment have to be made within three months from the date of this order failing which each of the defaulting O.Ps will be liable to be pay punitive damage at the rate of Rs. 5,00.00 per day until payment. The amount if collected would be credited to the Consumer Legal Aid account bearing No. 34735771817 of SBI, Purulia Branch.
Let a copy of this judgement be supplied to the parties free of charge.
