16.05.2017
HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER
The instant Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OP assailing the judgment and order No. 31 dated 28.3.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Unit-I, Kolkata, in Complaint Case No. 434/2009, directing the OP to pay to the Complainant Rs. 9,31,337/- for medical expenses incurred by the Complainant, Rs. 3,00,000/- for suffering, mental agony and harassment and Rs. 10,000/- for litigation cost, failing which interest @ 10% per annum shall accrue over the entire sum due to the credit of the Complainant for the entire period of default.
Brief facts of the case, as emanating from the materials on records, are that the Respondent/Complainant having met with a bus-accident on 15.1.2006 got admitted to the Appellant/OP-Hospital on 15.1.2006 at 6.50 p.m. via P.G.Hospital with complaint of “Impacted some traumatic dagloved injury of left leg and foot with fracture lower 1/3rd Tibia and Fibula and impacted twisted of left foot” as revealed from Paragraph-16 of the Written Version filed by the OP before the Ld. District Forum, as available on records. After admission the Respondent/ Complainant was referred to Dr. Anupam Ghosh, Plastic Surgeon engaged with the Appellant/OP-Hospital for medical service on part-time basis. After such admission, operation, debridement, toileting and flap transfer were done on the Respondent/Complainant on a number of days such as, 15.1.2006, 25.1.2006, 30.1.2006, 4.2.2006, 8.2.2006, 10.2.2006, 14.2.2006 and finally on 18.2.2006 at 11.45 A.M. “…..Below knee Amputation of Left 2/3rd of the Tibia along with left foot…” as revealed from the ‘Doctor’s Treatment Orders’ of the Appellant/OP-Hospital, as available on records was done. After such amputation, further operations related to flaps were done on subsequent dates such as, 24.2.2006 and 28.2.2006 and further debridement was done on 6.3.2006 and the Respondent/ Complainant was discharged on 17.3.2006. After so many operations amputation by the Appellant/OP-Hospital and several visits thereto, the pain in the amputated leg of the Respondent/Complainant did not subside till issuance of the Advocate’s Notice dated 4.2.2008 to the OP allegedly for fitting the left foot in wrong direction, but the Appellant/OP-Hospital did not reply thereto contradicting the allegation. For such treatment the Respondent/Complainant had to pay Rs. 9,31,337/- to the Appellant/OP-Hospital as averred in the Petition of Complaint. With this factual background, the Complainant moved the Complaint concerned before the Ld. District Forum which passed the order in the aforesaid manner. Aggrieved by such order the OP has preferred the instant Appeal.
Ld. Advocate for the Appellant/OP-Hospital submits that the below-knee amputation in the present case had to be done for gangrene and such unavoidable amputation does not indicate any negligence on the part of the Appellant/OP-Hospital. In this connection, the Ld. Advocate refers to a decision of the Hon’ble National Commission in Prayag Hospital & Research Centre Pvt. Ltd. & Anr. Vs. Vijay Pal, decided on 8.2.2016 in Revision Petition No. 293 of 2012.
The Ld. Advocate also submits that in the case on hand there is no specific proof of negligence on the part of the Appellant/OP-Hospital which is required to establish the negligence. In this connection, the Ld. Advocate refers to a decision of the Hon’ble National Commission in Smt. Rajkumari Vs. Dr. (Smt.) R.Singh, Gny. & others, decided on 9.10.2014 in First Appeal No. 151 of 2010.
The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should be allowed and the impugned order of the Ld. District Forum be set aside and the Complaint be dismissed.
On the other hand, the Ld. Advocate for the Respondent/Complainant submits that the concerned doctor of the Appellant/OP-Hospital undertook on 18.2.2006 the below-knee amputation without noting any cause thereof in the “Doctors Treatment Orders’, as available on records, despite noting in the said document to the effect “Pt. doing better” which indicates that the concerned doctor of the Appellant/OP-Hospital did not apply proper skill and care in the treatment concerned and such lack of application of proper skill and care indicates negligence on the part of the doctor concerned and also on the part of the Appellant/OP-Hospital for its failure to ensure the application of proper skill and care on the part of its doctor.
The Ld. Advocate further submits that for absence of proper skill and care of the doctor concerned of the Appellant/OP-Hospital the infection of “Staphylococcus aureus (confluent growth)” took place as is evident from the ‘Culture Report’ dated 25.10.2008 of Scientific Clinic Research Pvt. Ltd., as available on records, and such growth of bacteria, despite the Respondent/Complainant having been under continuous treatment of the doctor concerned of the Appellant/OP-Hospital, indicates negligence as well as deficiency on the part of the doctor concerned and also on the part of the Appellant/OP-Hospital for its failure to ensure application of proper skill and care of its doctor. In this connection, the Ld. Advocate refers to a Publication in relation to “…….Staphylococcus aureus on orthopedic implant material”, Volume 28, Issue 1, Pages – 55-61, January 2010 (http://onlinelibrary.wiley.com).
The Ld. Advocate also submits that it is well-settled that for non-joinder of parties the Complaint should not be dismissed and that expert opinion is not mandatory in all cases.
The Ld. Advocate finally submits that in view of the aforesaid submission, the instant Appeal should be dismissed and the impugned order of the Ld. District Forum be affirmed.
Heard both the sides, considered their respective submission and perused the materials on records.
It is well-settled by the Hon’ble Supreme Court in Smt. Savita Garg Vs. The Director, National Heart Institute, reported in 2014 (4) 258 (SC), that for non-joinder or mis-joinder of parties the Complaint cannot be dismissed. It is also settled by the Hon’ble Supreme Court in its decision dated 8.3.2010 in Civil Appeal No. 2641 of 2010 (V. Krishna Rao Vs. Nikhil Super Speciality Hospital & Anr.) that expert opinion is not mandatory in all cases. The decision referred to by the Ld. Advocate for the Appellant/OP-Hospital are of no help to the Appellant/OP-Hospital.
‘The Doctor’s Treatment Records’ dated 15.1.2006, being the date of admission of the Respondent/Complainant to the Appellant/OP-Hospital, as available on records, does not indicate any infection or gangrene, as the Ld. Advocate for the Appellant/OP-Hospital has resorted to, or Nephrosis in the affected leg, which generally lead to the below-knee amputation. Further, the ‘Doctor’s Treatment Records’ dated 16.2.2006, as available on records, indicates “Pt. doing better”. Thereafter, on 18.2.2006 the below-knee amputation on the left leg was done by the concerned doctor of the Appellant/OP-Hospital without any noting in the said document about the cause of below-knee amputation. All these evidence conspicuously indicate the failure on the part of the doctor concerned of the Appellant/OP-Hospital in discharge of duty the doctor concerned owed to the Respondent/Complainant and such breach of duty being one of the components of medical negligence, as was observed by the Hon’ble Supreme Court at Para-10 in the judgment in Jacob Mathew Vs. State of Punjab & Anr., reported in (2005) 6 SCC 1, indicates medical negligence on the part of the doctor concerned and also vicarious negligence on the part of the Appellant/OP-Hospital as was held by the Hon’ble Supreme Court in Savita Garg Vs. The Director, National Heart Institute (supra) that a hospital is vicariously liable for the conduct of its doctors, both on the panel and the visiting doctors.
The aforesaid facts, evidence on record and the discussion lead to the conclusion that the impugned order does not deserve any interference by this Commission.
Consequently, the instant Appeal is dismissed the same being bereft of merits. The impugned judgment and order is affirmed. No order as to costs.
