The appeal is directed against the final order dated 8/10/2015 delivered by Ld. DCDRF, Coochbehar in reference to DF no. 64 of 2014. The case in short is that the respondent Saddam Hossain has registered a consumer complainant under section 12 of CP Act, 1986 claiming compensation of rupees 4,70,000 with other reliefs for the medical negligence and deficiency of service on the part of the appellant Dr. Soumen Kanti Kumar and the Manager of Subham Hospital and Diagnostic Centre. The case of the complainant in short is that due to his suffering, of back pain, he consulted Dr. SK Kumar, that is, appellant on 11/3/2013 at Subham Hospital Coochbehar. After examining, hearing and also through clinical investigation and after conduct of tests and reports it was diagnosed that the complainant was suffering in a disorder of L4/L5 Laminectomy and L4-L5 descetomy. He was given primary treatment after prescribing some medicines and thereafter on 25/8/2013, the complainant was admitted in the said Nursing Home, where Dr. SK Kumar has conducted the of surgery in back side and total cost incurred for the said treatment was rupees 45,000. The patient was discharged from the hospital on 30/8/2013 but his condition was detoriating. He again came to the appellant doctor on 9/9/2013 and 10/9/2013 and Dr. Kumar advised him to get admission in that nursing home for further treatment from 10/9/2013 to 12/9/2013. In spite of such treatment, the suffering of the patient could not be decreased. Rather his condition was gradually deteriorated. He again came to the Doctor. on 07/10/2013 and 5/11/2013 but the Doctor. could not take proper care for the problem of the complainant. Then, under compulsion, the complainant visited one Dr. S Choudhury M.S. Ortho who represented him to Dr. S Basu, Spine Surgeon at Calcutta. On 4/2/2014, the complainant visited Dr. S Basu at Calcutta where, on examination, Dr. Basu opined that his actual disorder was related to L4-L5 decompression discectomy, when treatment at Coochbehar was primarily done. Then the complainant was admitted at Kothari Medical Centre, Calcutta under S Basu where the further surgery was held and his disorder could be cured. For the treatment through Dr. Basu he had to incur rupees 2 lakhs.
According to the case of the complainant, the appellant Dr. Kumar has caused the medical intelligence on his part and he did not properly make treatment of the patient in diligent manner and due to his apathy and wrong treatment, he had to endure a huge suffering and sustained pecuniary loss for such deficiency of service on the part of the appellant Dr. Kumar who has contested the consumer complaint by filing written statement and denied all the material allegations levelled against him relating to medical negligence and deficiency of service casted upon him and contended inter alia that he rendered proper treatment to the patient in a careful manner and after surgical operation, the problem of the complainant was completely cured but back pain could not be reduced due to some reasons and for that reasons, sufficient medicines was prescribed. He was advised further MRI but the complainant could not pay any heed to have MRI scan again and for that reason, the Doctor had no latches on his part relating to the treatment of the patient. His further case is that the complainant was advised a long bed rest and to take Anti-biotic medicines and therapies. But he did not continue such treatment as advised by the appellant and he advised the complainant to take a proper advice from expert like SN Ghosh , HOD Neuro Surgery, Bangur Hospital, Calcutta. But the complainant took admission to other hospital under Dr. Basu who conducted discitis operation and Dr. Bose himself opined that after the surgery by Dr. Kumar, the patient was alright in three weeks. So, there was no deficiency of service on the part of this appellant Doctor who has provided the standard treatment in the proper situation. The Op no. 2, manager of the said Subham Hospital, in the written version contended that the patient was admitted in their hospital under the advice and care of Dr. SK Kumar who was not employee of Subham Hospital but he was RMO of the said hospital where proper treatment was provided towards the complainant who was discharged after surgery on 30/8/2013 and again admitted in their hospital on 10/9/2013 and discharged on 12/9/2013 after proper medical care. Ld. DCDRF, Coochbehar after hearing and going through of the material documents placed before the Ld. Forum, the impugned order was delivered which is challenged in this appeal on the grounds that Ld. Forum has wrongly held that the appellant was negligent in doing his duty. Ld. forum has misconceived to appreciate the facts and circumstances of the case. Ld. Forum has completely ignored the law to the score that non-implead of Dr. S Basu as party to this case, the adjudication process suffers from irregularity and the decision and opinion of Ld. forum are baseless, irregular and not vested with the law. The appeal was admitted on merit and the respondent was approached by notice of appeal to contest the appeal case. Accordingly, the respondent has contested the case through legal representative. The appeal was heard in presence of Ld. Advocate of both sides.
Decision with reasons
After going through the material documents placed before this Commission, it is established beyond any doubt that the complainant Hossain was suffering from disorder like L4-L5 Laminectomy and L4-L5 discectomy where a surgical operation was held at Subham Hospital under the care of Dr. SK Kumar on 26/8/2013 and he was discharged from the said hospital on 30/8/2013. But the sufferings due to immense pain of the complainant could not be reduced in spite of surgery and so he again came to appellant doctor to render good medical service to remove problems.
But the treatment of appellant Doctor towards the complainant was not proper and appropriate as the complainant mentioned in his consumer complaint and so she has went to Calcutta for better management of his treatment and he was admitted under Dr. S Basu at Kothary Medical centre and hospital where further surgery was held in the back of the complainant. The patient’s discharge summery issued by Dr. S Basu speaks that after L4-L5 Laminectomy and L4-L5 discectomy, 6 months back, the patient got well but started to have suffering pains. The surgery at Kothary medical centre was held after investigation through MRI, x-ray and C.T. Scan relating to the post-operative discitis L4-5 with erosion of end plates and collapse of disc space and for that reason, Dr. Bose had done Percutanious Transpedicular fixation at L4-5 and the patient was discharged from Khotari hospital on 8/2/2014. Now the question is whether the post-operative discitis and L4-5 erosion of End Plates, collapse of disc space were found due to unskilled operation conducted by Dr. SK Kumar or not and it has to be determined in our case. Ld. Advocate of the respondent at the time of his argument mentioned that the objective of the medical profession is to render service to humanity with full respect for the dignity of the profession. Physician should merit confidence of patients entrusted to their care rendering to each a full measures of service and dedication. But here, in this case, after post operation while the immense back pain of the patient could not be satisfactorily removed, he approached the appellant Doctor. But the appellant Doctor has avoided to take the responsibly of back pain of the patient in spite of surgery, he has conducted.
He further submitted that during further admission between 10/9/2013 and 12/9/2013 at Subham Hospital, the appellant did not take proper care. Only he has prescribed some analgesic and anti-biotics without proper diagnosis. The actual problem of the patient which was revealed as post-operative discitis when the patient came under the care of Dr. S Basu. Ld. Advocate of the appellant at the time of argument mentioned that the surgical operation of L4/L5 Laminectomy and L4-L5 discectomy done by the appellant was certified as good service by Dr S Basu in his summery of treatment. Proper care and advice was prescribed towards the problem of the patient on the part of the appellant doctor but due to own carelessness, he had to suffer with the problem of post-operative discitis while the appellant Doctor had no fault in this respect. The doctor had advised the patient to take complete bed rest for a couple of days with proper medical therapies but his advice was completely ignored by the complainant and as such no blame should be given against the appellant doctor as he had no medical negligence or deficiency of service on his part.
Ld. Advocate further referred a medical journal where it is observed that in case of majority of deficiency of service having post-operative discitis, Anti-biotics and immobilization are applied to for a good long term. It comes when operative intervention is rightly necessary in patient failing response to treatment. It was further observed that post-operative discitis is an uncommon to serve complication of disc surgeries. On the early diagnosis and appropriate anti-biotic therapy along with immobilization is essential in the management.
He further argued that the development of post operation discitis is the fallout of the surgery performed by the appellant doctor for his L4-L5 Laminectomy and L4-L5 discectomy. So, the observation of Ld. Forum is completely beyond the actual circumstances of the case and the award of Ld. Forum in favour of the complainant is completely erroneous and liable to be set aside.
Ld. Advocate of the respondent countered this argument by mentioning that since the surgical operation at Kothari Medical centre by Dr S Basu was successful and clearly proves that the complainant’s condition was deteriorated after the surgery conducted by the appellant doctor which was imperfect and improper and it was unsuccessful surgical operation by the appellant on 26/8/2013, due to careless, negligent and inefficient approach and for this reason, he has become the victim of post-operative discitis.
Ld. forum further argued that Dr. Basu was essential and necessary party to the consumer complaint case as because against his absence no reasonable order could be passed but the Ld. Forum has ignored this chapter and for this reason, the final order of Ld. Forum becomes defective in the eye of law. After going through all necessary documents placed before us and after hearing valuable arguments of Ld. Advocates, the Commission has come to an opinion that Dr. Basu conducted the second surgical operation and against him no relief was sought for on the part of the complainant. Secondly the Doctor Basu never passed any opinion that the post-operative discitis developed in the back of the complainant due to imperfect and unsuccessful surgical operation conducted by appellant Doctor. So, in absence of Dr. Basu, in this case there is no question of suffering the merit of the consumer complainant case. Secondly, according to medical ethics, Dr. Basu could not make any whispering in its patient’s discharge summery regarding the surgical operation conducted by Dr. Kumar but his observation that the post-operative discitis L4-L5 with erosion of end plates and collapse of disc spaces which clearly suggests that the operation of surgery conducted by Dr. Kumar was not perfect one and some deficiency was there on his part and for that reason, the patient in spite of spending huge money in the course of treatment by Dr. Kumar, he could not recover from his problems and again he came to approach Dr. S Basu at Kothari medical college and hospital, Calcutta where he had to incur another rupees 2 lakhs for proper recovery from his problems.
So, deficiency of service and negligence on the part of the appellant Dr. is clearly established in this case beyond any doubt and the finding of Ld. forum does not invite any interference from the appellant authority. Ld. Forum has directed OP no. 1 and 2 to pay rupees 2,00,000/- jointly and severally as compensation for medical negligence, mental pain and agony, harassment etc. to the complainant Saddam Hossain but in this case, Subham Hospital and Nursing home had no fault on their own as because no allegation is there that hospital authority had any latches on their part. So, Doctor SK Kumar only liable to pay rupees 2 lakh as compensation and rupees 5000/- as litigation cost. And such amount shall have to be paid by the appellant Dr SK Kumar within 30 days from this date of order. The rest portion of the order of Ld. Forum should be rescinded to give the shape of the order as approachable and practical .
Hence, it is,
Ordered,
That the appeal be and the same is hereby dismissed on contest without any cost. The appellant doctor S K Kumar is asked to pay rupees 2 lakh as compensation for negligence, harassment etc. and rupees 5000 as litigation cost to the respondent/complainant Saddam Hossain within 30 days from the date of receiving the copy of the order, failing which he shall have to pay interest at the rate of 9 per cent per annum upon the decretal amount.
The rest ordering portion of the judgment is hereby rescinded.
Let the order be supplied to the parties free of cost and also to be sent to concern Ld. DCDRF.
