HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
This Appeal is directed against the judgment and order passed by Learned District Forum, Kolkata, Unit-I in CC 378 of 2010 allowing the complaint case directing the OPs jointly and severally to pay Rs.3,69,000/- as the refund of the amount paid by the Complainant and to pay compensation of Rs.1,25,000/- for mental agony and harassment and litigation cost of Rs.10,000/- within 45 days from the date of communication of the order, in default the amount of interest @ 10% p.a. shall accrue on the entire amount till realisation.
The case of the Complainant/Respondent, in short, is that his mother Smt. Sujata Kar Datta aged about 78 years fell down from the bed on 10/06/10 and sustained fracture of femur bone. The patient was taken to Mission Hospital, Durgapur on 14/06/10 and on 17/06/10 she was admitted at CMRI, Kolkata under Dr. Subrata Dasgupta who advised that she would be able to walk within 7 days after operation. On 24/06/10 the operation was done and at that time the Complainant suffered to the extreme for making arrangement of 5 bottles of blood of A-group. Instead of 7 days the patient remained admitted in the Hospital for 23 days and the Complainant had to pay the amount of Rs.2,28,000/-. After discharge the mother of the Complainant was not in a position to walk or to sit at her own. The operated leg was swollen and was having unbearable pain the patient was again taken to Durgapur Steel Plant Hospital. The doctors of Durgapur Steel Plant Hospital disclosed that the operation was not done correctly and there was non-union of bones and that the plate fixed by CMRI was also found displaced. The patient was again admitted at CMRI on 03/08/10. On 14th August the patient party visited CMRI Hospital and found that the patient was lying naked and the saline bottle was empty and there was none to look after her. On that very night the Complainant was informed that the condition of his mother deteriorated and she had been transferred to HDV and the Complainant was asked to report at CMRI. The Complainant had to pay in all Rs.3,69,000/-. The OPs failed and neglected to pay attention to the patient and due to gross negligence of the doctors the mother of the Complainant died on 07/09/10 at CMRI. Under such circumstances, the complaint was filed before the Learned District Forum.
It is submitted by the Learned Counsel for the Appellants that a Medical Board was formed and the expert doctors opined that the patient had been suffering from osteoporosis, as a result of which the screw was backing out partially and that the Medical Board further opined that any over energetic surgical treatment might not be advisable at that stage. It is contended that there is no material to prove that the patient was found lying naked and the saline bottle became empty. It is contended that no expert opinion was obtained by the Complainant and no medical literature was produced before the Learned District Forum.
The Learned Counsel for the Respondent has submitted that after operation the patient was taken to Mission Hospital where the doctors observed that there was need for removal of implant. The Learned Counsel has referred to the decision of the Hon'ble Apex Court in Civil Appeal No.264 of 2010, decided on 08/03/10 in the case of V. Kishan Rao vs. Nikhil Super Speciality Hospital and submitted that expert opinion was not necessary in this case.
We have heard the submission made by both sides and perused the papers on record. The main contention of the Learned Counsel for the Respondent/Complainant is that the observation of the doctors of Mission Hospital in the prescription dated 31/08/10 revealed that there was need for removal of implant and this was sufficient to prove that the earlier operation done at CMRI was defective. It appears that the Medical Board was formed and in its report dated 24/08/10 it was observed as follows:
“According to the Board it is 8 weeks since operation (ORIF). The screw has cut out and backing out partially (which is expected at this age with Osteporesis, according to the last x-ray done on 5.8.10). Screw holding the head to some extent which is enough to maintain the position of the # side till it heals fully (It is Trochantaric # which is known to heel quickly) and sign of healing calus are seen. Considering the general condition of the patient & poor Medical condition, rest full life & partial weight bearing for another 2 month will result in bony union.
Any over energetic surgical treatment may not be advisable at this stage. Physical therapy, proper nursing care and rehabilitation procedure to be implemented at her present medical condition. Board wishes to see immediate 1st post operative x-ray film for confirmation.”
It is evident from the observation of the Medical Board that due to Osteoporosis at the age of 78 years the screw was backing out partially and that over energetic surgical treatment was not advisable at that stage. Under such circumstances, we are unable to accept the contention of the Learned Counsel for the Respondent that the need for removal of implant was sufficient to indicate that the earlier operation was defective. As regards the contention of the Learned Counsel for the Respondent that the patient was lying naked and the saline bottle was found empty, it is also not acceptable because of absence of cogent evidence on this point.
Having heard the Learned Counsel for the parties and on perusal of the papers on record, we are of the considered view that the Complainant/Respondent failed to establish the allegations raised in the complaint as to medical negligence and deficiency in service. The Complainant/Respondent is not entitled to get any relief.
The Appeal is allowed. We set aside the impugned judgment and order. The petition of complaint is dismissed.
