SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The Complainant has filed this complaint petition U/s 12 of the Consumer Protection Act, 1986 (here-in- after called as the “Act”) alleging deficiency in service against the Ops claiming compensation.
2. The case of the complainant, in a nutshell, is that he is a retired Government employee, who, on 23.3.2018, stumbled on the road while walking and got sprain on his left ankle. On the advice of Dr. Ratnakar Das of Basta he x-rayed his left ankle and it was detected that a very small bone has been fractured and dislocated from the ankle region. The complainant consulted with the OP No.2 on 29.3.2018 at his clinic, who advised for operation. On 2.4.2018, he admitted in the OP No.1-Nursing Home and on the same day operation was conducted by OP No.2 and tendon was repaired and discharged on 5.4.2018 with advice for regular dressing and x-ray. Till 12.5.2018, the wound became aggravated, infected, pus accumulated instead of healing. Thereafter, the complainant consulted with Dr. Manoranjan Mallick, Associate Professor, Department of Orthopaedics, SCB MCH, Cuttack on 13.5.2018 and he advised for removal of wire put at the time of operation by OP No.2. Thereafter, the complainant consulted with Dr. Biswajit Sahu, Professor in Orthopaedics on 14.5.2018, who diagnosed the wound and found the wound was broken down with the exposure of implants for rupture of tendoachiles Lt avulsion injury and advised for consultation with plastic surgery. Immediately, the complainant admitted in SBM Hospital, Gopalpur, Cuttack where operation was conducted on 16.5.2018 by Dr. B.B. Nayak for exposed implant (Lt) TA with NHU and the implant was removed with calcaneal flap and discharged on 31.5.2018.
It is further averred that around the ankle region the skin was so thin that the stitches could not stand to re-join the cut skin and joining of the skin making stitches from time to time by OP No.2 became futile. Moreover, the wire used for fixing the small piece of bone were foreign bodies which aggravated the infection which lead to dissolve the muscles in the operated area and exposure of bone. Thus, the complainant suffered a lot and damage caused by OP No.2 due to his defective operational service which was proved to be hazardous to the life and safety of the complainant. The complainant has also sent legal notice against the Ops on 24.10.2018, but in vain.
It is further averred that the complainant incurred expenditure of Rs.1,00,000/- in the SBM Hospital, Rs.4600/- at OP No.1-Nursing Home, Rs.25,000/- paid to OP No.2 for operation charge, Rs.22,500/- for medicines and other accessories for operation and Rs.6,000/- for post operation treatment up to 8.5.2018. Apart from it, the complainant had also spent Rs.5,000/- for consultation with Doctors at Cuttack, for his pathological and x-ray test and also spent Rs.1,00,000/- for his time to time medical check-up and expenses for hiring private vehicles. For the above period of five months, the complainant suffered pain, mental agony. Hence, this case.
3. OP No.1 appeared and filed written version stating, inter alia, that this OP is an employee under the Nursing Home concerned and he is only authorized to maintain cleans and healthy atmosphere in the Nursing Home and to provide better nursing services to the patient through trained and qualified nurses and attendants. This OP has provided better service to the complainant during his treatment. Therefore, the question of deficiency in service against this OP does not arise at all.
4. OP No.2 appeared and filed written version challenging the maintainability of the case and the cause of action. It is stated, inter alia, that the complainant is a diabetic patient and he came to his clinic for consulting his treatment for suffering with avulsion fracture of calcaneum (heal) left side and he advised for surgery of the heel. The complainant was also explained about the complication associated with surgery which would be more as he was a diabetic patient. When the complainant expressed his willingness for operation, he was advised to consult with Diabectologist for control of blood sugar level of his body. After anaesthetic fitness of the complainant, planned for operation. Thereafter, on proper explanation, willingness and written consent of the complainant, this OP conducted operation at OP No.1-Nursing Home on 2.4.2018 adopting the basic method of “Bone Fixation” as per international standard Book (Campbell). During operation, a large avulsed bony fragment was found which was attached with Tendoachiles fully in the injury portion and as such bony fragment was attached to original position with the help of two Cc screws of 4 mm with washer and checked under C-ARM machine in planter flexion of the ankle joint to avoid stress at fracture site. After proper washing of the tissue in normal saline, would was closed in layers with drain for better healing with the help of suture materials. The left ankle was kept in planter flexion position in plaster. Thereafter, the complainant was shifted to allotted bed with post operation advice of taking timely medicines with antibiotic injection, pain killer and insulin injunction. The limb of the complainant was kept elevated with the help of pillow and after 48 hours, first dressing was done and would was found healthy and no discharge and then discharged with proper advice for taking antibiotic tablets, pain killer and insulin injection and for bed rest for certain period.
It is further averred that after the discharge, the complainant did not follow the advice of this OP and he did not take insulin properly as he was a diabetic patient and did not do the dressing of the operation portion properly for which the wound was not healing properly. After some days, the complainant contacted with this OP over telephone, who called him to his clinic. He came to his clinic and during check-up, being questioned, he expressed that he stopped taking insulin. However, this OP conducted dressing and debridement of the wound at his clinic and advised him to visit his clinic at regular interval for proper dressing of the wound instead of dressing at home and to continue insulin and other medicines. Thereafter, the complainant neither visited his clinic for regular check-up nor followed the instructions. It is also stated that this OP is a skilled and competent orthopaedic having related degree and he adopted one of the modes of treatment while conducting operation and treatment of the complainant and further he provided standard, reasonable and competent medical treatment to him in accordance with medical science. He has treated the complainant with due care and caution and as such there is no latches and negligence or deficiency of services on his part while conducting treatment of the complainant. The complainant has filed this case with an oblique motive with a view to harass him.
5. In view of the above averments of the parties, the points for determination in this case are as follows:-
- Whether there is any cause of action to file this case?
- Whether the present case is maintainable?
- Whether there is any deficiency of service on the part of the Ops?
- To what other relief(s), the complainant is entitled to?
F I N D I N G S
6. On a careful reading of the document viz. photocopies of Diagnosis report, x-ray plate, Diagnosis report of OP No.2, Discharge ticket & bill of OP No.1, Report of Associate Professor Dr. Manoranjan Mallik, Report of Prof. Biswajit Sahu, Discharge certificate & final bill of SBM Hospital, relied upon by the complainant, it is crystal clear that on 23.3.2018, he visited Dr. Ratnakar Das of Basta who found sprain to left ankle. Thereafter, he consulted with OP No.2 and got operated at OP No.1-Nursing Home. He also visited Prof. Manoranjan mallik on 13.5.2018. He also visited Prof. Biswajit Sahu on 14.5.2018, who conducted operation at SBM Hospital.
7. From the above documentary evidence, it is crystal clear that the complainant was suffering from avulsion fracture of calcaneum (heal) left side and he advised for surgery of the heel by the OP No.2 and accordingly, the complainant was admitted in OP No.1-Nursing Home where OP No.2 conducted operation. It is alleged by the complainant, due to the defective operational service of OP No.2, his life and safety became hazardous.
8. In this connection, on perusal of the Diagnosis reports of OP No.2, it is found that the complainant initially visited his clinic on 29.3.2018 for consultation and advised for various tests. Another report of OP No.2 dated 2.4.2018 proved that the complainant admitted in the OP No.1-Nursing Home and discharged on 5.4.2018 wherein it is also made out that the complainant was advised for taking medicines and regular dressing & physiotherapy. Further, the report of OP No.2 dated 8.5.2018 proved that the complainant had visited his clinic and advised for certain medicines. The complaint is silent about the visit of the clinic of OP No.2 by the complainant on 8.5.2018. The complainant has stated that he had paid Rs.25,000/- to the OP No.2 for his operation, but no bill was issued in this regard. Further, he had spent Rs.22,500/- towards the medicine costs and other accessories for operation. On perusal of the final bill provided by SBM Hospital authority, it is found that a sum of Rs.20,000/- was paid by the complainant towards Surgeon charges. But the complainant has failed to prove that he had paid Rs.25,000/- for his operation to OP No.2 and further the Bill dated 5.4.2018 provided by the OP No.1-Nursing Home does not reveal the complainant had paid Rs.25,000/- towards the Surgeon charges. That apart, the complainant has also failed to file any document to show that he had actually incurred expenditure to the tune of Rs.22,500/- for medicine costs and other accessories for operation, where he has filed the details of expenditures in the final bill provided by SBM Hospital authority.
9. Besides the above, OP No.2 has submitted that he had adopted the basic method of the operation “Bone fixation” as per international standard book (Campbell). It is further submitted that after the complainant sent to O.T. room, anaesthesia was given under aseptic condition, tourniquet control through posterior approach, skin was incised and proper handling of soft tissue was done and a large avulsed bony fragment was found which was attached with tendoachills fully in the injury portion and as such bony fragment was attached to original position with the help of two Cc screws of 4 mm with washer and checked under C-ARM machine in planter flexion of the ankle joint to avoid stress at fracture site. After proper washing of the tissue in normal saline, wound was closed in layers with drain for better healing with the help of suture materials. The left ankle was kept in planter flexion position in plaster. All post operation precautions were taken and after 48 hours first dressing was done and wound was found healthy and no discharge. The complainant was advised for taking antibiotic tablets, painkiller and insulin injection. In this connection, the complainant is silent and no submission was advanced with regard to the fact that the OP No.2 has not followed the basic method of operation and operated him haphazardly with a view to extract money.
10. Further, the complainant has alleged that he has suffered a lot and damage caused by OP No.2 due to the defective operational service. From the diagnosis report of Prof. Manoranjan Mallik and Prof. Biswajit Sahu, it is not specifically made out that the operation conducted by OP No.2 was a defective one and he has operated without following the basic method of operation nor the OP No.2 has conducted operation without pre and post operation precaution. That apart, the method of operation conducted at OP No.1-Nurshing Home and SBM Hospital are different, as revealed from the diagnosis reports of OP No.2 and Prof. Biswajit Sahu. In this case, the complainant has not produced prima facie evidence before this Commission in the form of a credible opinion given by another competent doctor, preferably from a doctor in Government service, qualified in that branch of medical practice, to support the charge of rashness or negligence on the part of the OP No.2. It is the claim of the complainant that the basis of his arriving at the conclusion that the treatment given to him was not proper, is the subsequent treatment alleged to have been taken by him from the Prof. Biswajit Sahoo of SBM Hospital. No document or any affidavit from the Prof. Biswajit Sahoo of SBM Hospital to the above effect has been filed that the treatment earlier given by OP No.2 in the Nursing Home of OP No.1 was deficient or the aforesaid Ops were negligent in any manner. The complainant has also failed to adduce any expert evidence to sustain the allegation made by him nor any other medical book to revert the contention of the OP No.2 who has relied upon the above medical book in his version. A medical practitioner is not insurer and he is not to be blamed every time something goes wrong. Indeed in treatment things can go wrong in the treatment of a patient even with the best of care, proper treatment found to have been given to the patient and so also proper care bestowed upon him both before and after his operation. As in this case there is nothing placed by the complainant to come to the finding that the OP No.2-doctor had committed negligence in performing the operation of the complainant or there was any deficiency in service. The conduct of the OP No.2-doctor before his operation and after post operation shows that he was sincere in his duty when he found that after 48 hours of operation, at the time of first dressing, the wound was developed. Further, the OP No.2-doctor has operated the complainant with his consent who had approached him of knowing his reputation as a general surgeon. From the written version, it appears that the OP No.2-doctor is qualified general surgeon.
11. Furthermore, the Consumer Commission is not expert in medical science, and must not substitute its own views over that of specialists. Therefore, to arrive at a definite conclusion, this Commission has referred the matter to the Heads of Department, Department of Orthopaedics, SCB Medical College & Hospital, Cuttack with a request for submission of an impartial and independent opinion on examination of the pre and post treatment and diagnosis history of the OP No.2-Doctor and submitted all the photocopies of the related medical papers vide this office letter No.230 dated 22.3.2023. In response to the above letter, Dr. Nirmal Chandra Mohapatra, Professor & HOD, Orthopaedics, SCB Medical College, Cuttack & Director, Regional Spinal Injury Centre, Cuttack has opined that the patient was suffering from Tendoachilles tendon tear which needed repair for proper function. The repair has been done but got infected. All current literature says deep infection following tendochilles repair surgery varies from 2-4% and wound complication (from superficial infection to skin necrosis & wound dehiscence) rate varies from 7-13%, this being an area of poor vascularity (Blood supply). As per current literature & practice, once there is wound dehiscence due to infection or otherwise, it may need debridement and plastic surgery procedure like flaps. Therefore, infection cannot be taken as negligence. Taking into consideration the above observations of the Post-Graduate Department of Orthopaedic Surgery, SCB Medical College & Hospital, Cuttack, this Commission is of the considered opinion that neither of the Ops have committed any deficiency in service towards the complainant.
12. From the above discussions made in the foregoing paragraphs, it is held that the complainant has no cause of action to file the case and the case is not maintainable. Consequently, the complaint is liable to be dismissed.
Hence, it is ordered: –
O R D E R
The complaint of the complainant be and the same is dismissed on contest against the Ops. No order as to cost.
Pronounced in the open court of this Commission, this the 26th day of November, 2024 under signature & seal of the Commission.
