Order-29.
Date-03/03/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case in short is that he is a Government Service Holder working in Boarder Security Force and presently posted at Shilong, Meghalaya. The complainant while on his way from permanent residence to Salt Lake, BSF Hospital on 01-02-2012 met with an unfortunate severe bike accident in front of Police Training School and was taken from the site of incident and admitted in SSKM Hospital by Kolkata Police in the Emergency Ward. X-ray was done revealing the final diagnosis as Supracondylar of right femur that is Supracondylar fracture of distal right femur. It is alleged that not even a digital x-ray or CT Scan of the fracture was done and was advised to be done from outside which would have otherwise held in complainant for the definitive treatment or surgery. The complainant was also asked by the SSKM Authorities to get pre-operation tests be done from outside if he wanted a quick surgery in his own arrangement. The SSKM Authorities refused to do the tests in SSKM Hospital. The complainant somehow managed to get the pre-operation tests done outside at Eko Diagonostic in his own arrangement so that such operation could be done on 03-02-2012. The date of operation was fixed on 03-02-2012. The operation of the complainant was done on 03-02-2012 by a team of doctors of SSKM and on 06-02-2012 the first dressing was done at reduction room. The complainant was dumb founded and astonished and was in a state of shock to see his right leg was not straight and had angulations (varus deformity) right after operation. It is alleged that there was absence of due care and diligence of the doctors. It is also alleged that there was gross negligence on the part of the doctor who operated the complainant i.e. fixation of implant, the anatomical axis was not checked, resulting in leg was not straight and had angulations. There was shortening of the right limb by 2 inches as compared to left limb and extension lag. It is also alleged that on 25th June, 2012 the complainant went for check up with x-ray and this time Dr. Arijit Ghose checked the x-ray of the complainant and diagnosed that “Union in Progress” but such check up was wrongly done by Dr. Arijit Ghose and allowed partial weight bearing (walking) resulting in varus deformity. The complainant on 05-09-2012 went to CMRI and consulted reputed orthopaedic Dr. Ashok Kumar Das who advised him admission for correction of varus deformity and bone grafting. The complainant also went to Ruby General Hospital. Dr. Kunal Sengupta examined the complainant and diagnosed him non-union with angulations. The complainant also went to Apollo Gleneagles Hospital on 08-09-2012. The complainant thereafter, went to BSF Hospital on 21-09-2012 and from there he was again referred to SSKM Hospital for doing the needful. On 22-09-2012 the complainant went to SSKM Hospital and he was advised by the Orthopaedic doctor for bone marrow injection. It is alleged that the complainant was treated by the doctors of SSKM very negligently and has become a victim of medical negligence by the procedure opted by the doctors of SSKM Hospital. On 02-09-2012 the complainant got admitted in Rubi General Hospital for revision surgery by knee drafting and varus correction and was finally discharged on 10-10-2012. In this operation bone grafting with double plate fixation was done, varus deformity was corrected and thus the different knee limb length was reduced to 6 mm which was nearly 2 inches before operation. The complainant was again admitted at Ruby General Hospital as a Screw got loosened and he was discharged from Hospital on 17-06-2014 with instruction as to walk with crutches. He was also advised physiotherapy. The complainant has alleged medical negligence against the OPs. Hence, this case.
OPs 1 and 2 have contested the case in filing written version contending, inter alia, that the instant case is not maintainable both the fact and in law. It is stated that the case is bad by mis-joinder and non-joinder of parties and the case is also barred by limitation. It is stated that OP2 has not refused the complainant for preoperation tests. It is stated that the investigation procedure was not functioning and it was a life and limb saving investigations which required urgent investigation plus treatment and to avoid unnecessary delay, the complainant was recommended to EKO. It is also stated OPs1 and 2 have treated the complainant and shifted him to Wood Burn Ward for the purpose of operation as the date of operation was fixed on 03-02-2012. It is also stated that the complainant has made concocted story regarding negligence of doctors when 4-5 doctors are always kept to keep eyes to the complainant. It is denied that doctors were negligent and careless in treating and performing the surgery. It is also stated that Dr. S.R. Mitra, Head of the Department of Orthopaedics of SSKM Hospital made thorough check up of his fracture and advised him for absolute non-weight bearing for one month more and bed rest for one month. It is stated that OPs tried their level best to cure the complainant. It is also denied that the non-union of fracture caused varus deformity for the negligence in operation. It is stated that there was no negligence on the part of the OPs. These OPs have prayed for dismissal of the case.
Points for Decision
- Whether the OPs have been deficient in rendering service to the complainant?
- Whether the OPs are guilty of medical negligence?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record i.e. Xerox copy of discharge certificate of SSKM Hospital, Xerox copy of OPD patient card of SSKM Hospital, doctors prescription of Ruby General Hospital, Xerox copy of OPD slip of BSF Hospital, Xerox copy of discharge certificate of Ruby Hospital, Xerox copy of treatment sheets of Ruby general Hospital, Xerox copy of medical bills, investigation reports of EKO X-ray and Imaging Institute etc. and other documents on record.
It is alleged by the OP that the case is not maintainable on the ground of limitation. Perused the case record we find that the complainant filed the application u/s.24A of the C.P. Act praying for condonation of delay. The petition was disposed off on merit by this Forum upon hearing of both the sides allowing the same. This Forum was also pleased to hold that there was sufficient cause of delay in filing the case and the delay in filing the case is condoned. No revision was preferred by the OP as against the said order dated 19-05-2016. Accordingly, the OP cannot agitate over the matter at this stage and the order condoning delay stands good.
We find that operation upon the complainant was done on 3rd February, 2012 by a team of doctors of SSKM and on 06-02-2012 the first dressing was done. The complainant found in a state of shock that his right leg was not straight and had angulations (varus deformity) right after operation. The complainant asked the doctors but the doctors kept quite without giving any explanation. We find (anatomical axis of the right limb of the complainant got wrong from the medical prescription of Ruby General Hospital on record. We find that there was gross wrong during fixation of implant by the doctors of SSKM Hospital. The anatomical axis was not checked resulting in leg was not straight and had angulations. Due to this angulations there was shortening of right limb by two inches as compared to left limb and extension of leg. We also find that a single plate was fixed which could not avoid the further varus collapse. Finally on 18-02-2012 complainant was discharged from SSKM. We find that no advice was also given on discharge certificate regarding exercises and only rest was given for two weeks and no weight bearing till further advice. We also find that the complainant on 05-03-2012 went for check up in SSKM and Dr. S.R. Mitra who happens to be the Head of Department Unit-III, Orthopaedics in SSKM Hospital made a thorough check up of his affected area and advised him from absolute non-weight bearing for one month more or bed rest for one month. Thereafter, again on 09-04-2012 the complainant went for follow up in SSKM with a new x-ray of the present condition. The doctor wrote in the clinical note that X-ray Alignment satisfactory and advised him for bed rest by one month, active quadriceps and knee bending exercise and start crutch walking non-weight bearing. Further follow up was done on 10-05-2012 where advice by doctor was given “No weight bearing”. Further follow up was done on 10-05-2012 when advice was given “no weight bearing” and rest for two weeks. The complainant on 24-05-2012 again went for check up and advice was given for knee bending and rest for two weeks and asked for review after one month with a fresh x-ray. On 25-06-2012 the complainant went for check up with x-ray and Dr. Arijit Ghosh checked the x-ray of the complainant and diagnosed that “Union in Progress” and allowed partial weight bearing knee movement exercise and further rest for one month. The complainant again went to SSKM Hospital on 23-07-2012 and 27-08-2012 and Dr. N.D. Chatterjee who checked the complainant asked him to come on 30-08-2012 with another fresh x-ray. At that time the complainant was told that there was non-union of fracture and advised the complainant for bone marrow injection. So, it is apparent that Dr. Arijit Ghosh on 25-06-2012 checked the x-ray and wrongly diagnosed “Union in Progress” and allowed partial weight bearing (waking) resulting in varus deformity (which appeared from operation), which gradually got more deformed and difference in limbs lengths around 2 inches.
Dr. Biswas also advised the complainant to observe for one and half months for union and advised verbally that if still there is non-union of fracture then the doctor will take a decision on repetition with bone-grafting. The complainant, thereafter, consulted the doctors at CMRI and also went to Rubi General Hospital. In Rubi General Hospital the specialized doctor of Orthopaedics Dr. Kunal Sengupta examined the complainant and diagnosed him with non-union with angulations. We also find that the doctor at Apollo Gleneagles Hospital diagnosed him non-union inter-condylar Rt. Femur with varus collapse, severe knee stiffness, 0-45o ROM (Range of motion) shortening leg and was advised, “Requires Re-fixation and bone grafting” and admit for surgery. But we find that when the complainant went to SSKM Hospital on 22-09-2012 he was advised by the Orthopaedic doctor for bone marrow injection X-3. We find that subsequently complainant got admitted in Ruby General Hospital for revision surgery by bone grafting and varus correction. Bone grafting with double plate fixation was done, varus deformity was corrected and thus the difference in limb length was reduced to 6 m.m. which was nearly 2 inches before such operation.
So, on perusal of medical documents on record we have no hesitation to hold that doctors of SSKM were very much negligent and the complainant became a victim of medical negligence by the procedure obtained by the doctors of SSKM Hospital. There was gross negligence while doing the surgical operation which can be found from the opinions of the doctors of other hospitals like Ruby Polyclinics and CMRI. We think that double plate fixation should have been done instead of single of plate for better stability and effectiveness of further varus collapse. Secondly bone grafting should have been done during the very first operation as the fracture was comminuted bones and broken to middle basis. Bone grafting should have been done to fill up the fractured portion and such bone grafting was not done, as a result there was non-union of fracture. We also find that all the orthopaedic surgeons who are consulted subsequently advised the complainant for revision of bone reduction internal fixation and upon grafting and finally complainant had to undergo the above mentioned surgery.
We find that the OPs in their written statements have not stated any specific case against the complaint of the complainant. The OPs have only made some specific denials, such as, the case is not maintainable in fact and in law and the case is bad for misjoinder and non-joinder of the parties or the case is barred by limitation etc. etc. OPs have admitted in paragraph 1 to 3 of the complaint ‘as matters of record’. The OPs have also admitted that pre-operation test could not be done at the hospital as the investigation procedure was not functioning. We also find that the complainant arranged pre-operation tests done tested at Eko Diagnostic in his own arrangement so that the operation could be done at the earliest on 03-02-2012. We must say that it was a deficiency on the part of the OPs for being unable to arrange pre-operation tests. Moreover, we find that there was gross negligence while doing the surgical operation by OPs and there was non-union of fracture resulting in varus deformity resulting in shortening of limb and extension lag because of the erroneous/wrong procedure followed by OPs. It is also worthy to note that there was controversial opinions of SSKM Doctors after 8 months and the complainant moved before other hospital doctors for a proper medical opinion.
We find that the complainant suffered severely because of the negligence of the OPs. We think that the OPs have been deficient and negligent in the treatment of the complainant and have not applied the medical skill properly. The course adopted by the operating surgeon was one that no other doctor of ordinary skill would have taken if he had been acting with ordinary prudence and care. We accordingly hold that the OPs are guilty of medical negligence.
Considering the gravity of the medical negligence, the age of the complainant, harassment, sufferings and mental agony underwent by the complainant, we pass the following order.
Consequently, the case merits success.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OPs.
OPs are jointly and severely directed to pay the compensation to the tune of Rs.3,00,000/- (Rupees three lakhs only) apart from litigation cost of Rs.10,000/- to the complainant for medical negligence within one month from the date of this order.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.
